Persons and Family Relations

COMPILED REPORT

CIVIL CODE OF THE PHILIPPINES

[Republic Act No. 386]

Preliminary Title

Chapter 1

Effect and Application of Laws

THE CIVIL CODE

R.A. No.386

Chapter 1

Effect and Application of Law

Article 1.

By: Abrigo,Mary Anne L.

This Act shall be known as the Civil Code of the Philippines

The Civil Code of the Philippines is a general law that governs family and property relations in the Philippines. It was take effect in 1950, codified by different private laws and remains up to date with some amendments.

It also defined is defined as a collection of laws, which regulates the private relations of the members of civil society, determining the respective rights and obligations, with reference to persons, things and civil acts. (1 Tolentino, Civil Code, p. 10, 1974 ed.).

Because Civil Law talks about the members of the civil society, it was made based on the rational nature of man, that everyone must obliged to follow and was declared open by legitimate authority for the benefit of all.

Features of The Civil Code

The 5 Books of the Civil Code

1. Persons and Family Relations – deals with the issues of family matters such as marriage, annulment , voiding of marriages, adoption, property, settlements between spouses, parental authority, support for spouses and children, legitimates, inheritance.

2. Property Succession – law of descent and distribution

3. Obligations and Contracts – the obligations arising from contracts, that bind relations to both parties.

4. Special Contracts

5. Other Parts – Preliminary Title, Human Relationss, Transitional Provision, Repealing Clause

The sources of the Civil Code of the Philippines was by the following.

(1) Civil Code of Spain of 1889; or called as the Spanish Codigo Civil when we are colonized by the Spaniards,

(2) Codes and laws of other countries, such as Spain, the various States of the United States of America, like California and Louisiana, France, Argentina, Mexico, Switzerland, England and Italy; at the year 1940, the Commonwealth Government headed by the late President Manuel Luis Quezon formed a Commission to draft a new code.

(3) Judicial decisions of the Supreme Court of the Philippines, of the U.S.A., Spain and other countries; in 1947 of the third Republic, a new commission was formed with the members of Supreme Court of the Philippines.

(4) Philippine laws or statutes such as the Code of Civil Procedure (Act No. 190), the Rules of Court, the Marriage Law (Act No. 3613), The Divorce Law (Act No. 2710), the Family Code (E.O. No. 229, as amended by E.O. No. 227), and the Inter-Country Adoption Law (R.A. No. 8043), because of the wide range of civil code, was also used and enhanced for the reputations of Philippine Law.

(5) Works of jurists and commentators of various nations;

(6) Filipino customs and traditions; and (7) The Code Commission itself. (See: Report of the Code Commission, pp. 2-3), wherein the late Pres. Manuel Roxas created under Commonwealth Act in 1947, that there is an urgent need of revision of all existing laws in the Philippines and keeping with progressive modern legislation.

ARTICLE 2

Article 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines unless it is otherwise provided. This Code shall take effect one year after such publication. (As amended by E.O. No. 200). (1a)

By: Aguilba, Ray Dean F.

That on August 30, 1950 Civil Code of the Philippines took effect.

EXECUTIVE ORDER NO. 200

Article 2 of the Civil Code has been expressly amended by Executive Order No. 200 dated June 18, 1987issued by President Corazon Aquino during the time of her revolutionary government.

SUMMARY

CORAZON C. AQUINO, President of the Philippines, by virtue of powers vested on me by the Constitution, do hereby order:

Rules on effectivity of laws.

A law shall take effect on the sixteenth day. This is so because in counting a period, the first day shall be excluded and the last day shall be included. (Art. 13, NCC). Under E.O. No. 200

A law can now take effect if published in a newspaper of general circulation. The reason for the law is that, newspapers could better perform the function of communicating the laws to the people as they are easily available, have a wider readership and come out regularly.

Official Gazette- is the official journal of the Republic of the Philippines.

How do we compute the 15 day period following the completion of the laws publication?

Suppose a new law completed its publication on Sept. 2

We will be starting to count on Sept. 3 because, a rule on effectivity of laws says, a law shall take effect on the sixteenth day. This is so because in counting a period, the first day shall be excluded and the last day shall be included. Therefore, law will take effect on Sept. 18.

THIS RULE COVERS

>Presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Constitution.

>Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

>All presidential decrees must be published, including those naming a public place after favored individual or exempting him from certain prohibition.

>The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to fill in the details of Central Bank Act which the body is supposed to enforce.

EXCEMPTIONS

<Interpretative regulations and those merely internal in nature that is regulating only the personnel of the administrative agency and not the public, need not to be published. Neither is publication required of the so-called letters of instructions issued by the administrative superiors concerning rules of guidelines to be followed by their subordinates in the performance of their duties.

<The Minister of Social Welfare on the case studies to be made in the petitions for adoptions or the rules laid down by the head of the Government agency on the assignments or workload of his personnel or the wearing of office uniforms.

<Municipal Ordinances are not covered by this rule by the Local Government Code.

The phrase unless otherwise provided means not the publication, but it refers to the date of effectivity.The phrase does not dispense with publication. So, if a law provides that it shall take effect immediately, there is still a need for its publication. Once published the people are presumed to have knowledge of the law, even if they have not read it. Presumptive knowledge is sufficient. Actual knowledge is not necessary for as long as the people comply with it as a rule of conduct.

CASE

LORENZO M. TAÑADA v. HON. JUAN C. TUVERAG.R. No.L-63915. April 24, 1985

FACTS:

Petitioning the people’s right to be informed on matters of public concern, a right recognized in the principle that laws to be valid and enforceable must be published in the Official Gazette, petitioners sought a writ of mandamus against respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.

However, respondents contended that publication in the Official Gazette is not an essential requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. Since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity.

ISSUE:

Whether or not publication in the Official Gazette is required before any law becomes valid and enforceable.

RULING:

Yes. Article 2 of the Civil Code does not stop the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. The objective was to give the general public adequate notice of the several laws which are to control their actions and conduct as citizens. Also, without such notice and publication, there would be no basis for the application of the maxim “ignorantialegis non excusat.” Because it would be unfair to punish or burden a citizen for the wrongdoing of a law of which he had no notice, not even a constructive one.

Article 3

Ignorance of the law excuses no one from compliance therewith.(2)

(Austria,Honeylee B.)

Basis of Rule

Based on an assumption that the evasion of the law would be facilitated and the successful administration of justice defeated if the person accused of crimes could successfully plead the ignorance of the illegality of their acts. (20 Am. Jur. 209,210)

If person that committed crime and they successfully plead ignorance of the illegality of their acts, then evasion will be easier and the purpose of justice will be defeated.

Reason

If ignorance of the law is a valid excuse for its non-performance or compliance, it would be very easy for a person to escape from the liability for the commission of a wrong.

The rule applies in Criminal and Civil cases. This reason is founded on public policy.

Why the law proscribes ignorance of the law as a defense

If it is a valid defense, then anyone can evade criminal and civil liability and would create a chaotic society,invite deception and promote criminality.

Ignorance of fact may excuse a party from legal consequences of his conduct but not ignorance of the law.

Presumption of knowledge

Everyone is presumed to know the law after it's Publication.

Foundation of the law

Being a general principle, its is founded in expediency, policy and necessity. There is no ground why Article 3 would be relaxed.

If otherwise,it would perplex the court with question incapable of any just solutions and embarrass it with Countless questions/inquiries.

Principal and rule of the knowledge of the law applied.

It is an express legal rule

(US vs. Gray) The allegation that the defendant is not acquainted with the provision of the Municipal code that residency of an elector is required, cannot be sustained.

(US v.s Chimo) Ignorance of the existence of the prohibitory provision of the Opuim law is no excuse for unlawful possession of opium.

This rule do not alter the presumption of innocence of crime until contrary is proved by preponderance of evidence. Presumption of innocence include of Good faith, Fair dealing and honesty.

Rules apply local law; foreign law should ne specifically pleaded.

Provisions of this article refer only to laws of the Philippines, and generally there should be no conclusive presumption knowledge of the foreign laws. Court do not take judicial notes of the foreign laws, it must be proved as facts.

Ignorance to foreign laws can be good defense, reason is that foreign law do not prove themselves in the Philippines and must be proved as fact according to the rule of evidence

Ignorance of the law distinguished from ignorance of Fact.

Criminal intention is the essence of the crime.

If the intent is dependent on knowledge of particular facts, ignorance of mistakes to these facts, honest and Not superinduced by fault or negligence of the party doing wrongful acts, absolves from criminal responsibility.

When presumption of knowledge of a fact is irrebuttable.

Under the rule of notice and the sales of land, it is presumed that a purchaser had examined every record affecting his title and charged with the notice shown by the record. This presumption cannot be overcome by proof of innocence or good faith.

All person must take notice of what the public record contains is just as obligatory upon all the person as the rule of all men must know the law; that no one can plead ignorance of the law, nor does ignorance of the procedural law.

ARTICLE 4

Laws shall have no retroactive effect, unless the contrary is provided.

By:Cordero,Loida F.

Non - retroactivity of laws said that the law looks to the future and has no retroactive effect unless the legislature may have given that effect to some legal provisions, and that the statutes are to be construed strictly.

The principle of non- retroactivity finds application in various aspects of the legal system. Thus, the rule is that the jurisdiction of a court depends on the law existing at the time an action is filed, a statute continues to be in force with regard to all rights that had accrued prior to its amendment, a new doctrine laid down by the Supreme Court overturning an existing doctrine is to be applied prospectively, and not to parties relying on the old doctrine and acting on the faith thereof and many others.

Laws must be published. Otherwise they are not effective. Laws take effect only after the mandatory requirement of publication in a newspaper of general circulation or the Official Gazette.

Case: People Of The Philippines v. Alfonso Patalin, Jr; Alex Mijaque, and Nestor Ras

G.R. No. 125539, July 27,1999

Facts: Accused were charged with the crime of robbery with multiple rape in 1984. In 1987, when the 1987 Constitution suspended the imposition of the death penalty, the trial has not yet been finished, hence it was overtaken by the Death Penalty Law effective January 1, 1994, the imposition of death penalty was suspended. When they committed the crime in 1984, the death penalty was still in our statute books but the trial of their case was overtaken by the 1987 Constitution.

Issue: Can the Court impose the death penalty on the convicts?

Held: No. Under Article 22 of the Revised Penal Code provides that penal laws shall have a retroactive effect only when a person guilty of felony is not a habitual criminal, although at the time of the publication of such a law a final sentence has been pronounced and the convict is serving the same.

Article 6

Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

By:Maia Caireen R. Rosales-Ademe

WAIVER - it is the relinquishment or refusal of a known right with both knowledge of its existence and an intention to relinquish it

Matters that are waivable under the Rules of Court:

ž Venue of actions

ž Testimony of an eyewitness concerning the death of the insured person

ž Privilege against the disclosure of confidential communications made by a patient to a physician

ž Right of the accused to be present at the certain stages of the proceedings

ž Right to the assistance of the counsel

SCOPE OF WAIVER

ž The right of waiver while extending to almost all descriptions of contractual, statutory, and constitutional privileges is nevertheless subject to control of public policy, which cannot be contravened by any conduct or agreement of the parties

ž All agreements will be held void which seeks to waive objections to act or defenses illegal at law, or which are forbidden on the ground of morality

WAIVER DISTINGUISHED FROM RATIFICATION

RATIFICATION is the adoption of a contract made on one’s behalf by someone whom he did not authorize while WAIVER of some rule which invalidates the contract , but which, having been introduced for the benefit of the contracting party may be dispensed with at his pleasure

GENERAL RULE AND EXCEPTIONS ON WAIVER OF RIGHTS

When it is contrary to law, public order, public policy, morals, good customs; (Art. 1306) and
When the waiver is prejudicial to a third person with a right recognized by law. (Art. 1409)

VOIDABLE WAIVERS

- Waiver of future inheritance is void

- Political rights

WAIVER CONTRARY TO LAW

ž Perpetual restriction on the right of ownership other than the heirs of the vendor a retro, is void

ž Injured passengers or workers to prosecute the carrier or driver in consideration of a measly sum of money

Article 8:

Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines

By:Fornoles, Charlene Ross V.

Jurisprudence cannot be considered as an independent source of law; it cannot create law. (1 Camus 38 as cited in Tolentino) But the Court’s interpretation of a statute constitutes part of the law as of the date it was originally passed since the Court’s construction merely establishes contemporaneous legislative intent that the interpreted law carried into effect. [Senarillos v. Hermosisima (1956)]

The provision is taken from common law. Since the Philippine legal system is a combination of civil law and common law, courts apply statutes as well as resort to the doctrine of precedent. This is the doctrine of stare decisis. It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof.

Contemporaneous interpretations of laws form part as of the time of their enactment. They are what the laws mean. The words in the constitution are given their ordinary meaning. The courts cannot by interpretation speculate as to an intent and supply a meaning not found in the phraseology of the law. The courts cannot assume some purpose in no way expressed and then construe the statute to accomplish this supposed intention. [Regalado vs. Yulo] The constitution is not primarily a lawyer’s document but essentially that of the people. [Tecson vs. COMELEC]

With administrative regulations, they must be in harmony with the law and should be for the purpose of carrying into effect it’s general provisions. If conflict exists between the basic law and rule or regulation issued to implement it, the basic law prevails.

In case of ambiguity, the legislative intent should be considered. The conscience and equity should always be considered in the construction of statutes. The courts are not to be hedged in by the literal meaning of the language of the statute; the spirit and intendment thereof must prevail over its letter. This applies especially where adherence to the letter of the statute would result in absurdity and injustice. [Casela vs. CA] Moreover, the fundamental law must be understood and interpreted in its entirety- as a whole.

Article 9

No Judge or court shall decline to render judgement by reason of the silence, obscurity or insufficiency of the laws.

By: Aprilyn M. Guiang

Judge will and should be render and apply judgement based on applicable laws on a particular case.

What if there is no law governing to resolve the issue legally? what will be the judge resort on this?

In case of silence, obscurity or insufficiency of the laws, judgement may still be guided by the following:

Customs which are not contrary to law, public order or public policy;
Court decisions, foreign or local court, in similar cases;
Legal opinions of highly qualified writers and professors;
General principles of justice and equity; and
Rules of statutory construction.

Therefore, It is clear in this article of civil code that Judge have no reason to refrain from rendering judgement just because of silence, obscurity or insufficiency of the laws.

In Chu Jan v. Bernas, wherein the judge was not excuse himself to render judgement by reason of lack of knowledge to rules and regulation of cockfights. (case1)

However, What if the law is unjust? How the judge will resolve it?

The rule that will prevail is dura lex sed lex (the law is harsh but it is the law). It is the sworn duty of the judge to apply the law, follows its mandate and not to tamper it. But if the law is unjust or harsh, the judge may recommend executive clemency to the convicted, but it cannot refrain them to apply the law. Executive Clemency means the power of the President to pardon the person convicted in crime. If the court refuse to apply or tamper the law, it is surpassing the power of the congress. (case2)

Case1:

CHU JAN, PLAINTIFF AND APPELLE, VS. LUCIO BERNAS,

DEFENDANT AND APPELANT

G.R. NO. 10010, August 01, 1916

Facts:

On afternoon of June 26, 1913, a match of cockfight was held in Tobaco, Albay. Two cocks belong to the plaintiff and dependants and each of them put up a wager of P160. As the match ended, referee declared the cock of dependants as the winner. The plaintiff file a suit in peace of justice of court and decided the match as a draw. From this, the dependant appeal in the court of first instance and ask the court to render judgement based on the rules and regulations of cockfights, but the said court rendered judgement dismissing the case. The grounds for dismissal pronounced by the lower court is that he is not familiar with the rules governing with the cockfights and does not know the the law subject in it.

Issue:

Is the judge of the lower court correct in dismissing the case for the reason of ignorance of the rules governing cockfights? NO

Ruling:

Article 9 of civil code applies that lack of knowledge in the rules of governing cockfights does not excuse the court of rendering judgement and just terminating the proceeding by dismissal. Since there is lack of laws governing into it, customs of the place will be observed as stated in Article 6.

Case2:

PEOPLE OF THE PHILIPPINES VS HON. LORENZO VENERACION, HENRY LAGARTO y PETILLA and ERNESTO CORDERO

PETITIONER AND RESPONDENTS

G.R. NO. 119987-88, October 12, 1995

Facts:

Regional Trial Court of Manila, per Judge Lorenzo B. Veneracion, render judgement on January 31, 1995, wherein accused Henry Lagarto and Ernesto Cordero were found guilty beyond reasonable doubt of raping and slaying 7yrs old Alquiza Lagman in August 2, 1994 with a crime of rape and homicide. Respondents were sentenced to suffer the penalty of reclusion perpetua in each with damages. In October 12, 1995, a special civil action made questioning the sentence imposed, and ordered to impose the correct penalty prescribed by law. On May 22, an order correcting the sentence in criminal case and imposing the penalty of death.

Issue:

Did Judge Veneracion acted with grave abuse of discretion in imposing penalty of reclusion perpetua?YES

Rulings:

Under Section 11 of R.A. No. 7659*, when on the occasion of rape and homicide is committed, the penalty shall be death. The language of the law is is plainly and unequivocal. The court is aware that the judge is misgiving death sentence due to religious convictions. But as long as the the penalty remains in the statute books, it is the duty of judicial officers to respect and apply law regardless of their private opinions.

Article 10

In case of doubt in the interpretation of ,or application of Laws ,it is presumed that the law making body intended right and justice to prevail.

By: Ibanez, Jonathan M.

GR no. 71370 July 7,1986

Sps Slobodan Bobanovic ,petitioner vs Hon. Sylvia P Montes MSSD (now DSWD)

Facts: The Australian spouses bobavovic filed a petition for the adoption of Filipino minor child Adam Christopher .THE MAKATI RTC thus ordered the MSSD to conduct case study of the child, his natural parents and the adopting parents, However ,respondent Minister, declined to issue travel clearance .

Issue: Whether the MMSD had validly refused to issue a travel clearance to the Sps Bobanovic on the ground that the case study was unabled to conduct by the same.

No.

Held : The writ of mandamus is hereby granted and the respondent Minister was directed to issue the requisite travel clearance to Adam Christopher Bobanovic

Adoption of Stephanie Nathy Astorga Garcia
GR 148311, March 31, 2005

FACTS:

Petitioner HonoratoCatindig filed a petition to adopt his minor illegitimate child Stephanie, and that Stephanie has been using her mother’s middle and surname; and that he is now a widower and qualified to her adopting parent. He prayed that Stephanie’s middle name Astorga be changed to Garcia, her mother’s surname, and that her surname Garcia be changed to Catindig, his surname.

ISSUE:

May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name?

RULING:

YES. Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear surname of her father and her mother. Stephanie’s continued use of her mother’s surname as her middle name will maintain her maternal lineage. The Adoption Act and the Family Code provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can assert her hereditary rights from her natural mother in the future.

Article 11

Customs which are contrary to law, public order or public policy shall not be countenanced.

By: Ibanez, Jonathan M.

1. Custom is a rule of human action established by repeated acts

Custom Defined

A custom is a rule of human action (conduct) established by repeated acts, and uniformly observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding.

Requisites before the courts can consider customs

a. A custom must be proved as a fact, according to the rules of evidence, otherwise the custom cannot be considered as a source of right.

b. The custom must not be a contrary to law, public order, or public policy.

c. There must be a number of repeated acts.

d. The repeated acts must have been uniformly performed.

e. There must be a juridical intention. To make a rule of social conduct that is, there must be a conviction in the community that is the proper way of acting, and that therefore a person who disregards the custom in fact also disregards the law.

f. There must have be a sufficient lapse of time – this by itself is not a requisite of custom, but it gives evidence of the fact that indeed it exists and is being duly observed.

NOTE: An Igorot custom of adoption without legal formalities is contrary to law and cannot be countenanced or invoked.

Law distinguished from custom

While ordinarily a law is written, consciously made, and enacted by congress, a custom is unwritten, spontaneous, and comes from society. Moreover, a law is superior to a custom as a source of right. While the courts take cognizance of local laws, there can be no judicial notice of customs, even if local.

Article 12

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

By:Lambayong, Gladys A.

Custom is a general practice constantly shared by a group on individuals in a community over a long period of time. It is considered a right of a person or group of persons when it adheres to the following requisites stipulated, word per word, by Albano, et al, 2020:

Plurality of acts;
Uniformity of acts;
General practice by the great mass of the people of the country or community;
General conviction that it is the proper rule of conduct;
Continued practice for a long period of time; and
Conformity with law, morals and public policy (1 Manresa 82).

Why must custom be proven? Some customs are time-immemorial that have governed the inter-personal and socio-cultural aspects of many of the Filipino communities; having been proven to foster relative peace and welfare among those who practice it or adhere thereto.

A custom is to be proven so as not to be used arbitrarily as defense or be invoked by anyone to escape from liability. It must be proven to establish that it has become part of the ordinary circumstances of an event, being a routine of a certain situation. However, what this provision contemplates as to be proven are that which do not run counter to national statutes, public order or a public policy and are based upon morally accepted norms.

Reference:

Judge Ed Vincent S. Albano (Ret.), et. al. Family Code of the Philippines.2020:Central Book Supply, Inc. Quezon City.pp.52-54.

Case: Martinez v. Van Buskirk, 18 Phil. 79

Facts:

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a carromata on Calle Real, district of Ermita, city of Manila, P. I., along the left-hand side of the street as she was going, when a delivery wagon belonging to the defendant used for the purpose of transportation of fodder by the defendant, and to which was attached a pair of horses, came along the street in the opposite direction to that in which said plaintiff was proceeding, and that thereupon the driver of said plaintiff's carromata, observing that the delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk on the left-hand side of the street and stopped, in order to give defendant's delivery wagon an opportunity to pass by, but that instead of passing by the defendant's wagon and horses ran into the carromata occupied by said plaintiff with her child and overturned it, severely wounding said plaintiff by making a serious cut upon her head, and also injuring the carromata itself and the harness upon the horse which was drawing it.

Issue:

Whether or Not the defendant be liable for the negligence of his cocher

Rulings:

No. The Court of appeals ruled in favor of the defendant because the occurrence that transpired therein was an accident resulted from ordinary acts of life. It is universal practice to leave the horses in the manner in which they were left at the time of the accident. Hence, it proves that the defendant is not liable for any accusations.

Article 13

When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise.

By: Meneses-Gapac, Xiennia B.

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

In computing a period, the first day shall be excluded, and the last day included.

Years = 365 days

Months = 30 days

Days = 24 hours

Nights: sunset to sunrise

March (solar): 31 days “months” = 30 days

Case: The People of the Philippines vs. Paz M. del Rosario May 21, 1955

FACTS:

On July 27, 1953, an information was filed in the Municipal Court of Pasay City charging Paz M. del Rosario with slight physical injuries committed on the 28th day of May, 1953. The accused thereupon presented a motion to quash the information on the ground that the offense charged had already prescribed in accordance with the provisions of Articles 90 and 91 of the Revised Penal Code. The municipal court sustained this motion and dismissed the case. However, the Solicitor General in this case argued that according to the Article 13 of the new Civil Code, the period hasn’t been expired.

The pertinent provisions of Articles 90 and 91 of the Revised Penal Code are as follows:

ART. 90. Prescription of crimes.— . . . .

The offenses of oral defamation and slander by deed shall prescribe in six months.

Light offenses prescribe in two months.

ART. 91. Computation of prescription of offenses.— The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities or their agents, . . . ..

The court a quo held that in accordance with Article 13 of the new Civil Code the “month” mentioned in Article 90 of the Revised Penal Code should be one of 30 days, and since the period of prescription commences to run from the day “on which the crime is discovered by the offended party,” i.e., in this case on May 28, 1953 when it was committed, the two months period provided for the prescription of the offense already expired when the information was filed, because the filing was on the 61st day.

The Solicitor General in this appeal argues that in the same manner that Article 13 of the new Civil Code is applied to determine the length of the two months period required for the prescription of the offense, its provision (of the said Article 13) contained in paragraph 3 which reads “In computing a period, the first day shall be excluded, and the last day included” should also be applied, so that the information should be considered as filed on the 60th day and not on the 61st day after the offense has been committed. The resolution of the appeal involves the determination of two legal issues, first, whether the prescriptive period should commence from the very day on which the crime was committed, or from the day following that in which it was committed, in accordance with the third paragraph of Article 13 of the Civil Code of the Philippines, and second, whether the term “month” in the Revised Penal Code should be understood to be a month of 30 days, instead of the civil calendar or calendar month.

ISSUE: Whether or not the offense charged already expired or not.

Defendant’s computation: Plaintiff’s computation:

May 28, 1953 to July 27, 1953 61 days 60 days

RULING:

The term “month” used in the Revised Penal Code should be interpreted in the sense that the new Civil Code defines the said term:

“month” means 30 days

Civil month or solar month (meaning the months bearing its names e.g. “January” means 31 days

The said court held that the two months period for the prescription of a light offense should be understood to mean 60 days, a month being a 30-day month. (S. de 6 de abril de 1895, 3 Viada, p. 45). Similarly, in view of the express provisions of Article 13 of the new Civil Code the term “month” used in Article 90 of the Revised Penal Code should be understood to mean the 30-day month and not the solar or civil month.

Therefore, it was concluded that when the information was filed on July 27, 1953, the offense had not yet been prescribed because July 27 is the sixtieth day from May 29.

Article 14.

Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in the Philippine territory, subject to the
principles of public international law and to treaty stipulations.

By: Perolina,Nil Jay V.

Meaning: If a crime is committed within the Philippine territory, the law applies obligatory penal laws and those of public security and safety.

Exemptions:

1. Offense is committed by a foreign sovereign or diplomatic representatives while on the Philippine territory.

2. Crime is committed inside a public or armed vessel of a foreign country.

Questions

1. An American Citizen on his vacation committed a crime in Manila, will he be prosecuted for criminal liability?

-Yes. He can be penalized on the crime he committed since the rule is clear that that those who sojourn in the Philippine territory is bounded by the this law.

2. An American ambassador committed the same crime in Manila, will he be prosecuted for a criminal liability?

-No. Ambassadors, on the other hand are granted diplomatic immunities. The remedy is for him to be recalled by his government and granting him persona non grata.

3. A merchant vessel entered the Philippine territory and an offense was committed inside the said vessel, would it be triable in the country?

-Yes, exemptions only include crimes committed inside a public or armed vessel of a foreign country.

Article 15.

Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

By: Pomintel-Acuno, Florabel

Philippine Law shall govern any Filipino citizen with respect to his family rights and duties, status, condition, and legal capacity whether he is living in the Philippines or abroad. If married Filipino citizens are living abroad the law that governs them is Philippine law. Or even one of the spouses is in abroad and the other is living in the Philippines, still the Philippine law will govern both of them. Even the spouse living abroad filed a divorce from his spouse living in the Philippines; such divorce decree is void and cannot be recognized in the Philippines because of our adherence to the national theory.

Let’s check first the rule stated in Article 26 which is relevant in the case we will digest in the later part of this report.

General Rule: As stated under Article 26 of the Family Code, all marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country.

Exception to the Rule: If the marriage is void under Philippine law, it will remain void even if it is valid in the country where the couples were solemnized under Articles 35 (Section 1, 4, 5 and 6), 36, 37 and 38.

It must be observed that for Article 26, paragraph 2, of the Family Code to apply, the following requisites must be present:

a. the marriage must be originally a mixed marriage

b. the foreigner should be the one to initiate the divorce petition, and if granted, it should capacitate him under his national law to remarry

Related Cases:

· Alice Reyes Van Dorn v. Hon. Manuel V. Romillo, Jr., et al. L-68470, October 8, 1985, 139 SCRA 139

· Garcia v. Recio, GR No. 138322, October 2, 2001

· Roehr v. Rodriguez, et al. GR No. 142820, June 20, 2003

Now, let’s see below case that raised Article 15

Alice Reyes Van Dorn v. Hon. Manuel V. Romillo, Jr., et al. L-68470, October 8, 1985, 139 SCRA 139

FACTS:

Alice Reyes Van Dorn, Filipino citizen, was married to Richard Upton, an American, in Hongkong. They settled in the Philippines and had two children. After 10 years of marriage, Richard Upton filed a divorce in Nevada, USA, on the ground of incompatibility. Later on, the petitioner, Alice Reyes Van Dorn, remarried to Theodore Van Dorn in Nevada. As normal as it is, conflict arose between Alice and Richard. The latter sued Alice before the Regional Trial Court in Pasay City claiming that the business, Galleon Shop, in Ermita is a conjugal property and that she be ordered to render the accounting of the business and that he be declared to manage the property.

ISSUE:

The most important fact in this case is the Nevada divorce decree, is it or is it not binding between two parties.

RULING:

It is in no doubt that on account of nationality principle under Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorce. Nevertheless, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, he divorce in Nevada released Upton from the marriage from the standards of American law. Thus, pursuant to his national law, he is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets.

Article 17

The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by the Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by the determinations or conventions agreed upon in a foreign country. (11a)

By: Rosales, Gayle Marion R.

Annotation:

The laws of the country shall govern the solemnization of contracts, wills, and other public instruments where they are executed. In cases where the person involved in the forms or contracts are in a foreign country and the solemnizing officer is from the Republic of the Philippines, the same shall be applied in the execution.

Performance and enforcement.

“Lex loci celebrationis” is a Latin term for legal principle in English common law, roughly translated as the “law of the land (lex loci) where the marriage was celebrated”. Matters pertaining to the due execution of the contract are regulated according to the law of the place of execution while performance of contracts are regulated by the law in force at the place of performance.

Effects of laws, etc. on prohibitive laws concerning persons in the Philippines.

If there is a law or determination or judgment in a foreign country, the same shall not render ineffective prohibitive laws concerning persons, their properties or acts of Filipinos. For instance, if married Filipinos divorced each other in a foreign country, it is void in the Philippines.

“Lex loci contractus” is the Latin term for "law of the place where the contract is made”. According to the doctrine, as a general rule, the law of the place where the contract is made or entered into governs with respect to its nature and validity, obligation and interpretation.

For instance, if a contract is executed abroad, the foreign law prevails. If a Filipino official executes a contract abroad, the same shall be governed by the Philippine law, otherwise, the will is void. If an airline ticket is purchased in the Philippines, and rewritten abroad, the liability of the airline company in case of breach the contract is governed by the Philippine law.

G.R. No. 104235. November 18, 1993

SPOUSES CESAR & SUTHIRA ZALAMEA AND LIANA ZALAMEA, Petitioners, v. HONORABLE COURT OF APPEALS AND TRANSWORLD AIRLINES, INC., Respondents.

NOCON, J.:

FACTS:

Petitioners-spouses Cesar C. Zalamea and Suthira Zalamea, and their daughter, Liana Zalamea, purchased three (3) airline tickets from the Manila agent of respondent TransWorld Airlines, Inc. for a flight from New York to Los Angeles on June 6, 1984. The tickets of petitioners-spouses were purchased at a discount of 75% while that of their daughter was a full fare ticket. All three tickets represented confirmed reservations.

While in New York, on June 4, 1984, petitioners received notice of the reconfirmation of their reservations for said flight. On the appointed date, however, petitioners checked in at 10:00 a.m., an hour earlier than the scheduled flight at 11:00 a.m. but were placed on the wait-list because the number of passengers who had checked in before them had already taken all the seats available on the flight. The first 22 names were eventually allowed to board the flight to Los Angeles, including petitioner Cesar Zalamea who was holding the full-fare ticket. The two others, on the other hand, at No. 34, being ranked lower than 22, were not able to fly. As it were, those holding full-fare tickets were given first priority among the wait-listed passengers.

Disgruntled over TransWorld Airlines, Inc.’s refusal to accommodate petitioners in Transworld Airlines Flight 007 departing from New York to Los Angeles on June 6, 1984 despite possession of confirmed tickets wherein two of the three tickets were purchased at a discount of 75% while that of their daughter was a full fare ticket, petitioners filed an action for damages before the Regional Trial Court of Makati, Metro Manila, Branch 145.

ISSUE:

Whether or not there was fraud or bad faith on the part of respondent airline

Whether or not there is breach of contract

RULING:

There was fraud or bad faith on the part of respondent airline when it did not allow petitioners to board their flight for Los Angeles in spite of confirmed tickets cannot be disputed. The U.S. law or regulation allegedly authorizing overbooking has never been proved. Aside from said statement of Ms. Gwendolyn Lather, its customer service agent in Manila, no official publication of said code was presented as evidence. Thus, respondent court’s finding that overbooking is specifically allowed by the US Code of Federal Regulations has no basis in fact.

Even if the claimed U.S. Code of Federal Regulations does exist, it is not applicable to the case at bar in accordance with the principle of lex loci contractus which requires that the law of the place where the airline ticket was issued should be applied by the court where the passengers are residents and nationals of the forum and the ticket is issued in such State by the defendant airline. Since the tickets were sold and issued in the Philippines, the applicable law in this case would be Philippine law.

Even on the assumption that overbooking is allowed, respondent TWA is still guilty of bad faith in not informing its passengers beforehand that it could breach the contract of carriage even if they have confirmed tickets if there was overbooking. Respondent TWA should have incorporated stipulations on overbooking on the tickets issued or to properly inform its passengers about these policies so that the latter would be prepared for such eventuality or would have the choice to ride with another airline.

WHEREFORE, the petition is hereby GRANTED and the decision of the respondent Court of Appeals is hereby MODIFIED to the extent of adjudging respondent TransWorld Airlines to pay damages to petitioners in the following amounts, to wit:

(1) US$918.00 or its peso equivalent at the time of payment representing the price of the tickets bought by Suthira and Liana Zalamea from American Airlines, to enable them to fly to Los Angeles from New York City;

(2) P50,000.00 as moral damages;

(3) P50,000.00 as exemplary damages;

(4) P50,000.00 as attorney’s fees; and

(5) Costs of suit.

Article 18

In matters which are governed by the Court of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.

By: Rosales, Gayle Marion R.

It means that it makes the Civil Code suppletory to whatever deficiencies in the Code of Commerce or special laws if the provisions are pertinent and applicable.

Chapter 2
Human Relations

Article 19.

Every person must, in exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

By: Valbuena, Dona M.

Definition of Terms:

Person – natural or juridical/artificial persons

Right – Every well-grounded claim on others is called a right, and since the social character of man give element of mutuality to each claim, every right conveys along with the idea of obligation.

Duty – A human action which is exactly conformable to the laws which requires us to obey them. A moral obligation or responsibility. It differs from a legal obligation, a duty cannot always be enforced by the law.

Justice - The constant and perpetual disposition to render to everyman his due. The conformity of our actions and will to the law.

Good Faith – An honest intention to abstain from taking any unconscientious advantage of another, even though the forms of technicalities of law together with the absence of all information of facts which would render the transactions unconscientious. (adj. careless, unconsciously ref: Wiki)

(From Wikipedia: Social contract theory said that justice is derived from the mutual agreement of everyone. In the 1800s, utilitarian philosophers like John Stuart Mill said that justice is based on the best outcomes for the greatest number of people.)

This article is considered as one of the cores of Human Relations under Chapter 2 of the Civil Code

Why do we have it?

• It exists to prescribe the norm of conduct, as the things we have to observe, to comply with and abide by when we deal with other human beings.

• It prescribes the limits of our rights, the specific causes of actions or bases for legal actions and the remedy for the violation of our legal rights.

• It was intended to expand the concept of torts* by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide, specifically statutory laws.

*wrongful act or an infringement of a right

This provision is one of the three (3) articles which are considered to be the core pillars governing the principles in the abuse of rights. Article 19 explicitly prescribed the norm of conduct or the things we have to observe to comply with and to abide by when we deal with other human beings. The standards are the following:

1. To act with justice

2. To give everyone his due

3. To observe honesty and good faith

The Elements in the Principle of Abuse of Rights are the following:

1. Exercise of legal rights or duty

2. It is exercised in bad faith

3. The sole intention is to prejudice or cause injury to another

COVERAGE

• Pervades (encompasses) the whole legal system

• Applies to natural as well as to artificial persons

• Renders impossible that a person who suffered damages because a person has violated some legal provision should find himself without relief

• It is a sound and just principle where one wrongfully and negligently does an act which in its consequences is injurous to another

Reminders:

• Wrong without damage or damage without wrong does not constitute a cause of action.

• If the injury was self inflicted, there can be no recovery of damages. It would be a case of damage without injury.

Standards to be faithful to the provisions of this article are:

1. To act with justice

2. To give everyone his due

3. To observe honesty and good faith

Article 19 is said to be the Principle of Abuse of Right or misuse of right is governed by this provision

ELEMENTS OF THE ABUSE OF RIGHTS

1. The existence of legal right or duty

2. Which is exercised in bad faith, and

3. For the sole intent of prejudicing or injuring another

In a simple statement

“His right cannot be abused to prejudice or injure others.”

To be liable under the law, the following requisites must be met:

• The party claiming damages must have sustained the loss;

• The party against whom they are claimed must be chargeable or guilty of the wrong complained of;

• The lost must be the natural and proximate consequence of the wrong

• The wrong complained of must be contrary to law and the act or omission causing the damage should either be willfull or direct or proximate result of negligence

(Illustration to help clarify the provisions of Article 19 of NCC)

S.C. G.R. No. 122823 November 25, 1999

SEA COMMERCIAL COMPANY, INC.
vs.
THE HONORABLE COURT OF APPEALS, JAMANDRE INDUSTRIES, INC. and TIRSO JAMANDRE

FACTS

• Seacom was a farm equipment seller and distributor; entered into a dealership agreement with Jamandre Industries Inc. JII (for brevity). The former appointing the latter as its dealer in Iloilo and Capiz.

• In the course of the dealership agreement, JII allegedly incurred a balance of P18,843.85 for unpaid deliveries, and Seacom filed a suit against JII to recover said amount plus interest and attorney's fees.

• JII denied the allegation citing that the balance of P18,843.85 was their unrealized profit if they were able to deliver 21 units of power tillers to Farm System Development Corp. But instead Seacom went directly to FSDC* to deliver the units, thus JII claimed for damages.

*a Marcos Era government corporation abolished by Section 21 (c) of E.O. 116, 1/30/1987

The trial court rendered the following decision:

• ordering JII to pay SEACOM the amount of Eighteen Thousand Eight Hundred Forty Three and 85/100 (P18,843.85) representing its outstanding obligation

• granted JII's counterclaim for unrealized profits, and for moral and exemplary damages and attorney' fees as above quoted.

• Seacom appealed the decision on the counterclaim

CA held that JII is entitled to damages under Article 19 of NCC. Seacom acted in bad faith when it competed with its own dealer in the sale of the farm machineries to FSDC

ISSUE

Whether or not CA erred in ruling that Seacom acted in bad faith and affirmed the trial court decision on award of damages to JII.

HELD

No. SC affirmed the CA ruling with modification of awarding of moral and exemplary damages of 2,000 pesos to JII

This SC Ruling passed the following requisites:

• The party claiming damages must have sustained the loss;

• The party against whom they are claimed must be chargeable or guilty of the wrong complained of;

• The lost must be the natural and proximate consequence of the wrong

• The wrong complained of must be contrary to law and the act or omission causing the damage should either be willfull or direct or proximate result of negligence

In closing, consider page 92 paragraph 4 of 2020 Albano: “Verily then, malice or bad faith is at the core of Articles 19, 20 and 21. Malice or bad faith implies a conscious and intentional design to do a wrongful act for dishonest purpose or moral obliquity. Such must be sustained by evidence.”

Article 20.

Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.

By: Abrigo, Mary Anne L.

Principles of Article 20

1. Wilfully or Negligence – whether the action was done among the two, and causes damages/wrongdoings to other, they have to pay or obliged for the damages.

2. Intentionally or Unintentionally- talks the same with number 2, the latter party needs to be compensated for the damages, consequences they have experienced.

Negligence

Is the failure to give the right care to prevent injury and damages , it also depends to many factors that may be considered intentionally or unintentionally.

Before the court decides, it must satisfy the four requirements.

1. there must be a legal duty to perform or to use a reasonable care

2. there must have been a failure to perform a duty.

3. the plaintiff must have suffered an injury or loss

4. and the negligent act must have been the proximate cause of the injury. A proximate cause is a cause that directly caused the loss or suffering.

Liabilities

were classified in three general classes of wrongs. The (1 Crime ) which the person intentionally done wrong to others. (2) Torts are civil wrongs committed against people or organization causing them a loss. 3 ( Intentional Torts ) will full acts or the wilfull failure to act when required to do so that causes injury to someone else.

Occena vs. Icamina G.R. No. 82146, January 22, 1990

Facts:

Respondent was found guilty of slight oral defamation and sentenced to a fine of P50.00, with subsidiary imprisonment in case of insolvency, but no civil liability arising from the felonious act of the accused was adjudged.

Held:

This is erroneous. As a general rule, a person who is found to be criminally liable offends two (2) entities: the state or society in which he lives and the individual.

CASE DIGEST # 1

Summary

The petitioner filed a criminial complaint for Grave Oral Defamation for insulting him such malicious words, the respondent entered to a not guilty plea and after a trial was sentenced a Slight Oral Defamation and was sentenced to fine a fifty pesos (50.00) and imprisonment in case that they cant pay the cost.

ISSUE :

The trial court found the private respondent to be defamatory and the petitioner is entitled to an award of damages arising from the uttered word of the other party.

Ruling :

The decision of the RTC have been modified and the private respondent is ordered to pay 5,000.00 as oral damages and another 5,000.00 for exemplary damages.

Case Digest # 2

Banal vs. Tadeo, Jr. 156 SCRA 325

Summary :

A case was filed to the respondent Rosario Claudio for the violation of BP Blg 22. or an Act of Penalizing the making or drawing and issuance of check without sufficient funds or credit and other purposes. , the respondent pleaded not guilty and rejected the appearance of the respondent with the private prosecutor., hence the respondent rely on the rule that every man criminally lliable is also a civilly liable.

Issue:

A respondent liable or filed against BP 22 will be entitled or should be given civil indemnity?

Ruling :

The principle in Article 20 of the New Civil Code is founded on the basic rule that every person who is criminally liable shall also be civilly liable. (Art. 100, RPC). Every person who contrary to the law , wilfully or negligently, shall indemnify the latter for the same. Not only the state but the petitioner too is entitled for protection.

ARTICLE 21

ANY PERSON WHO WILFULLY CAUSES LOSS OR INJURY TO ANOTHER IN A MANNER CONTRARY TO MORALS, GOOD CUSTOMS OR PUBLIC POLICY SHALL COMPENSATE THE LATTER FOR THE DAMAGE.

By: Aguilba, Ray Dean F.

Contra Bonos Mores- means against good morals or harmful to the moral.

Article 21 Deals with acts Conta Bonos Mores and has the following elements,

1.) There is an act which is legal

2.) But which is contrary to morals, good customs, public order or public policy

3.) And it is done with intent to injure it presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation.

And so while everyone is entitled to speak out of his thoughts, every citizen must be careful not to unduly injure others. Thus a legal anecdote goes, one is free to shout &fire& in the streets even when there’s no fire. But when he or she shouts &Fire& inside a dark movie house, that would be deemed a dangerous act. It may lead to stampede, injuries and even death, all for which he or she can be accountable…That is abuse of right.

Case:

Tanjanco vs. CA,

18 SCRA 994

FACTS:

About December 1997, Apolonio courted Arceli both of adult age. That Apolonio expressed his undying love affection to Araceli also in due time reciprocated the tender feelings, in consideration of Apolonio promise of marriage Araceli consented and acceded to Apolonio’s pleas for carnal knowledge. Until December 1959, through his protestations of love and promises of marriage, defendant succeeded in having carnal access to plaintiff, as a result of which the latter conceived a child. Araceli informed Aplolonio and pleaded with him to make good his promises of marriage but instead of honoring his promises and righting his wrong, Apolonio stopped and refrained from seeing Araceli since about July 1959 has not visited her and to all intents and purposes has broken their engagement and his promises.

ISSUE:

Whether or not man seduced the woman entitling her to the rewards set forth in Art 21.

HELD:

No. Plainly there is voluntariness and mutual passion. The facts stand out that for one whole year, from 1958 to 1959, Araceli, a woman of adult age, maintained intimate sexual relations with Apolonio, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Hence, the courts conclude that no case is made under Art. 21 of the Civil Code and no other cause of action being alleged, no error was committed by the CFI in dismissing the complaint. The decision of CA is reversed and that of CFI is affirmed.

Article 22

Every person who through an act of performance by another or any other means, acquires or come into possession of something in the expense of the latter without just or legal ground, shall return the same the same to him.

By: Austria,Honeylee B.

Coverage of the law

This law intends to uphold the spirit that giveth life rather than letter that killeth. Remedy for those wrong grievances and injustice ordinarily were NOT governed by law. It intends to furnish a solution or an equitable to any injustice or committed done

Question: " Does it NOT redound to the common good that rights which lie deep in the recesses of a man's conscience be extracted from this moral bedrock and set into a statutory law?"

Answer: " This task is particularly within the scope of codification, which ought to reduce the minimum number of cases where the natural law and positive law are at variance with each other."

"Modern trends" "Progressive principle of law"

"Equity furnishes more than positive law"

Illustrations- property left and temporarily forgotten by the owner is NOT LOST, nut mislaid property. Owner is still the owner but it's custody may be in another premises it has been left.

Example:

A forgot his hat in the business office of B who found A's had but refused to give it back upon demand. B is bound to return the Hat to A under this provision because, B should not profit by mere forgetfulness of A, nor A should not be deprived of his belongings by mere casual or accidental placement.

A certain personal property is hidden by its owner who forgot to retake it and found by another, that property is no considered lost property although the finder did not know the owner. Since the purpose of hiding it was for safekeeping and was NOT involuntary parting of possession.

Puts a package in the common carrier then forgot to take it when he leaves the car. Money left in a desk in a private apartment of a safe-deposit money company.

Or Hides a vat for the purpose of training and forgotten by the person who hid them.

But if it is accidentally DROPPED in a public place, they are LOST in legal sense, because of the element of voluntary parting with the possession is present.

Pocketbook found on the ground under a table at a public amusement place, or money found in crevices and interspace in a safe.

It is founded on the principle of placing equity and justice above strict legalism or form

Civil liability or obligations may arise from Article 2164 to 2175 of the Civil Code, or quasi-delictor or acts or omissions punishable by law.

Principle of solutio indebiti

The legal basis of Solutio Indebiti- No one shall enrich himself at the expense of another.

l Supreme Court said that the government in NOT exempt from its application.

Example:

The government cannot collect taxes twice and enrich himself at the expense of the tax payer.

Continue to reap the fruits and hold the property that was already sold by him to another. (Obaña v. Court of Appeals, G.R.No. L- 36249)

There is unjust enrichment when a person unjustly retains a benefit to the loss of another,when the person retains money or property AGAINST the fundamental principles of justice, equity and good conscience.

Unjust Enrichment in Article 22 requires 2 conditions:

1. That a person benefited without the valid basis of justification

2. The benefit derived from another's expense.

G.R.NO. L-36249 March 29, 1985

ANIANO OBAÑA, petitioner,

vs.

THE COURT OF APPEALS AND ANICETO SANDOVAL, respondents.
Facts:

Sandoval of the owner of Sandoval and Sons Rice Mill and approached by a Chan Lin and offered to purchase 170 cavans of rice at the price of Php 37.26 per cavan, and to be delivered to the petitioner's store. The payment will be given to the driver after the delivery and Sandoval agreed, based on his previous transactionswith him.

The 170 cavans were unloaded, but when the driver attempted to collect the payment, Chan Lin is nowhere to be found.

Chan Lin sold the 170 cavan to the petitioner for Php 33.00 per cavan. Then the driver tried to collect the payment from the petitioner and the petitioner told that he already paid to Chan Lin.

Issue:

Whether or not the respondent is allowed to recover the 170 cavans of rice or its value.

Held:

Having been paid by Chan Lin, the respondent should give the rice to the latter. From the petitioner-defendant testimony, he was ready to return it to Sandoval, but the latter's driver denies that the rice has been returned by the defendant. He cannot be allowed to enrich himself at the expense of the other by holding to a property (Cavans of rice) no longer his. Sandoval is entitled to the recover of the rice and value since he was not paid.

This case illustrates that Sandoval having been paid back by Chan Lin, Obana still holds the cavans of rice at the expense of Sandoval without paying for it. This is where Solutio indebiti applies.

G.R. No. 138088 January 23, 2006

CAR COOL PHILIPPINES, INC., represented in this act by its President and General Manager VIRGILIO DELA ROSA, Petitioner,
vs.
USHIO REALTY AND DEVELOPMENT CORPORATION, Respondent.

Facts:

Former owners "Spouse Lopez" leased the property to Car Cool with an executive agreement of 2 years and expires in August 16, 1992, spouse allowed verbal lease to Car Cool to occupy with monthly rentals Php 18,000. Hector wrote to Car Cool to inform his intention to sell the property. Hector also terminated the verbal lease and gave Car Cool until August 31, 1995 to vacate, but Car Cool ignored and still vacate the property. August 31, 1995, Ushio informed the Car Cool that they had purchased the property and gave 30 days to vacate, then a final unextendable 15 days to vacate. Car Cool refused because they paid in advance to the former owners Php 250,000 from January 1, 1996-January 1, 1997 and the former owners allegedly promise to execute a written contract lease. The appeleate court favoerd the defendant ordering the petitioner to pay Php 18,000 month as reasonable compensation from October 1995 until they vacate, and to pay Php 20,000 as way of Attorney's fee.

Issue:

Whether or not CA erred in awarding the damages by way of rentals and Attorney's fee in favor of Ushio.

Held:

Contrary to the allegation of the payment of damages in form of rentals for the property does NOT constitute Solutio Indebeti. The payment was NOT encashed and offered to be returned to the petitioner but they refused.

This court affirm the decision and resolution with modification of

Php 18,000 monthly from December 19, 1995 to November 18, 1996 aggregating to Php 198,000, Shall earn 6% per annum from Nov. 1995 until it is fully paid, with interest of 12% with Php 198,000 and deleting the award of Attorney's fee against the petitioner.

The illustration of Article 22 here is the Unjust enrichment of holding the building by Carcool Ph at the expense of the former owners and the Ushio Realty, provided that the former owner are returning their advance payment that they already paid.

Article 23

Even when the act or event causing causing the damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited.

By: Austria,Honeylee B.

What is contemplated by Article 23 is an involuntary act or act which though unforeseen could not have been avoided.This is based on Equity.

Code of Commission gave an example:

"Without A's knowledge, the flood drives his cattle to the cultivated highland of B. A's cattle are saved but B's crop is destroyed. True, A was not at fault but he was benefited. But it is a right and equitable that he should indemnify B.

ARTICLE 24

In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.

By: Cordero, Loida F.

Who are protected by the law?

The law is designed to protect those at a disadvantaged position by reason of moral dependence, ignorance, indigence, mental weakness, tender age and other handicap. It is designed to implement the principle of parens patriae ( parent of the nation ), and the courts, as guardians of the rights of the people.

What the protection covers.

The law is explicit in giving protection to one who is at a disadvantaged position in all contractual, property or other relations. In the case of the Heirs of John Sycip v. Court of Appeals, any transaction involving real properties with Non Christian Filipinos must be approved by the provincial governor of the place; otherwise, it is void. It is perceived that those who belong to the cultural minorities can be easy prey of the more intelligent people due to the former's ductility. But take note that the law merely gives protection to the illiterates, a classification intended by the legislature, designed to give them ample protection, which can be considered as an implementation of the social justice concept of President Magsaysay " that those who have less in life should have more in law." Courts are bound to protect the rights of the less privileged.

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 8829 May 31, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GUILLERMO CASIPIT y RADAM, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

BELLOSILLO, J.:

FOUND GUILTY OF RAPE and sentenced to reclusion perpetua as well as to indemnify the offended party P30,000.00 for moral damages, 1 the accused GUILLERMO CASIPIT y RADAM appeals to us insisting on his innocence.

The victim, Myra Reynaldo, was then 14 years old and a sixth grader, while appellant was 22. They were neighbors in Victoria, Alaminos, Pangasinan.

On 19 September 1986, before going to Manila for a medical checkup, the father of Myra entrusted her to the parents of Guillermo. On the same day, Guillermo invited Myra to go to the town proper of Alaminos to buy rice and bananas. When they reached the poblacion, he told her that they should buy in Dagupan instead because the prices were cheaper. She agreed. Upon arriving in the poblacion, Guillermo invited Myra to watch a Movie. They watched the movie until six o'clock in the evening, after which, they took a ride for Alaminos arriving there at eight o'clock. They took their dinner in Alaminos before proceeding home to Barangay Victoria. On their way home it rained hard that they had to take shelter in a hut in the open field of Barangay Talbang. Inside the hut, Myra sat on the floor while Guillermo laid down. After a few minutes, he told her to lie down with him and rest. Then he went near her. He removed her panties, poked a knife at her neck and warned her not to shout. She resisted appellant, kicked him twice, but was helpless to subdue him as he tied her hands behind her nape. Moreover, he opened her legs, went on top of her, and the inevitable had to come. He mounted an assault on her chastity until he succeeded in having sexual intercourse with her. She could not stop him as he was big and strong. After the sexual encounter, she felt pain and could not
sleep. 2

After waking up the following morning, they proceeded home. On their way, he told her to proceed ahead. When she reached home, she was observed to be walking abnormally (bull-legged) by Rogelio Casipit, her cousin-in-law. When her aunt, Nenita Rabadon, learned about it, she called for her and asked her what happened. She then narrated everything to her. Her aunt took her to the house of their barangay captain, Bruno Carambas, and reported the incident to him. The barangay official then called for Guillermo but he denied having raped Myra.

While inside the house of the barangay captain, the victim was examined by her sister-in-law Susan Cabigas and Elsa Carambas, wife of the barangay captain, who both found the victim's private part reddish and her panties stained with blood. 3

The following afternoon, Myra, accompanied by an uncle, went to the police station of Alaminos to report the rape and then to the Western Pangasinan General Hospital where she was examined by Dr. Fideliz Ochave. The medical findings of Dr. Ochave showed no external sign of physical injuries but noted the presence of first degree fresh healing laceration at the perineum and of
the hymen at six o'clock position. The laboratory result was negative for spermatozoa. 4 On 26 September 1986, Myra gave her statement to the police and later filed a criminal complaint against Guillermo. 5

The version of Guillermo, on the other hand, is that long before the incident, he and Myra were sweethearts. On 19 September 1986, they agreed to watch the movie "Cabarlo" so they went to Dagupan City. They entered the moviehouse at noon and left at six o'clock in the evening. While watching the show, he placed his arm on the shoulder of Myra and she did not object. He kissed her several times; she kissed him as many times. They talked about their love for each other. After the movie, they went home. However, when they reached Alaminos, it rained hard so they sought shelter in a hut. They removed their wet clothes. He embraced her and she liked it. Then he lowered her panties and she did not resist. He laid her down on the floor and she consented. He joined her on the floor. He placed himself on top of her and sexual intercourse followed as a matter of course. They stayed inside the hut the whole night. They went home together the following morning. After the love tryst, he went to look for a job in San Juan, Metro Manila. He was arrested in July 1987. He contended that the victim was probably induced by her aunt Nenita Rabadon to file the case. 6

After the trial, the court a quo sustained the prosecution and found appellant guilty of raping Myra by means of force and intimidation.

Appellant now assails the trial court for giving credence to the testimonies of the prosecution witnesses while disregarding his and worse, for finding him guilty instead. He maintains that the victim's story contained many flaws: firstly, even as she had testified that she struggled with him and kicked him twice, the doctor who examined her found no external physical injuries on her body; secondly, the fact that the victim agreed to have a movie date with him shows that she liked him and was attracted to him; and, thirdly, the victim did not leave the hut but slept with him until morning, which is an unnatural behavior of one who had been raped.

We cannot sustain the accused; hence, we affirm his conviction. We cannot argue against the trial court for giving full faith and credit to the testimony of Myra that appellant poked a knife at her neck and sexually abused her despite her resistance as he was stronger and bigger than she who was only 14 years old. Considering the physical condition of the victim and the place where the crime was perpetrated, which was in an isolated hut in an open field, it was not difficult for the accused to subdue the victim and coerce her into submission.

These factual findings of the trial court appear to be borne by the records, and we cannot have any justification to hold otherwise. When the question of credence arises between the conflicting versions of the prosecution and the defense on the commission of rape, the answer of the trial court is generally viewed as correct, hence entitled to the highest respect, because it is more competent to so conclude having closely observed the witnesses when they testified, their deportment, and the peculiar manner in which they gave their testimonies and other evidence in court.

The argument that the absence of external injuries on the body of the victim belies her claim that she struggled with appellant to prevent him from raping her is devoid of merit. The absence of external signs or physical injuries does not negate the commission of rape. Proof of injuries is not necessary because this is not an essential element of the crime. 8 This does not mean however that no force or intimidation was used on the victim to consummate the act. The force or intimidation required in rape is relative. It is viewed in the light of the victim's perception and not by any hard and fast rule. It need not be overpowering or irresistible but necessary only to achieve its purpose. Aside from applying force, the appellant used intimidation by threatening the victim with a knife.

The fact that Myra went with appellant to a movie is no indication that she already agreed to have sex with him. Her actuation is understandable as she is a close relative of appellant, according to his grandfather. 9 Hence, it is not improbable that the victim placed her trust on appellant by letting him accompany her to the movie. It should be emphasized that she was then only fourteen years old, an innocent barrio lass. Records are bereft of evidence that she was a woman of ill-repute, or of a flirtatious nature to incite or provoke appellant to have sex with her.

The principal defense of appellant that he and Myra were sweethearts cannot be given weight. For, if that was true, she would not have immediately disclosed to her family and to the authorities the sexual assault done to her. 10 After all, nobody else but the two of them knew what happened between them in the loneliness of an isolated hut in an open field. The fact that Myra lost no time in immediately reporting the violation of her honor and submitting herself to medical examination bolsters her credibility and reflects the truthfulness and spontaneity of her account of the incident. If she had voluntarily consented to the sexual act with appellant, her most natural reaction would have been to conceal it or keep silent as this would bring disgrace to her honor and reputation as well as to her family. Her unwavering and firm denunciation of appellant negates consent. 11

Worth noting is the marked receptively of our courts to lend credence to the testimonies of victims who are of tender years regarding their versions of what transpired since the State, as parens patriae, is under obligation to minimize the risk of harm to those who, because of their minority, are not yet able to fully protect themselves. 12

WHEREFORE, the appealed decision finding accused-appellant GUILLERMO CASIPIT y RADAM guilty of rape and sentencing him to reclusion perpetua is AFFIRMED, with the modification that the indemnity in favor of MYRA REYNALDO is increased to P50,000.00.

Costs against accused-appellant.

SO ORDERED.

Davide, Jr. and Quiason, JJ., concur.

Cruz and Kapunan, JJ., are on leave.

Facts:

The victim Myra Reynaldo, was then 14 years old while appellant was 22. Guillermo, a relative, denied having raped Myra. The principal defense of appellant that he and Myra were sweethearts did not give weight.

Issue:

Whether or not the accused be find guilty of rape.

Held:

Cognizant of its duty under the law to give protection to the people, the Supreme Court applied the principle of parens patriae in a rape case committed on a girl of tender age by a relative. There are times when rape is very difficult to prove but the Supreme Court applied the principle of parens patriae when it said that where a child of tender age is raped especially by a relative, the Court would always have the tendency to rely on her testimony. The State, as parens patriae, is under obligation to minimize the risk of harm to those who, because of their minority, are not yet able to fully protect themselves. The Court found the accused guilty of rape and sentenced him to reclusion perpetua, with the modification in favor of Myra Reynaldo was increased to P50,000.00.

Article 25.

Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution.

By: De Jesus, Camille T.

For the application of this article, there must a declared public want or emergency. Thoughtless extravagance may incite the passions of those who cannot afford to spend. There are requisites that must be present to prevent thoughtless extravagance, (1) declared public want or emergency, (2) there must be thoughtless extravagance in expenses for pleasure or display, and (3) it must be a government or private charitable institution that will bring the action.

Illustration: As President Rodrigo Duterte declared national emergency because of the Covid-19 Pandemic, if ever there will be an organization or an individual who will spend so much money thoughtlessly and will qualify as thoughtless extravagance, a government or charitable institution may bring them into action

ARTICLE 26

"Every person shall respect the dignity, personality, and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense., shall produce a cause of action for damages, prevention and other relief:

1. Prying into the privacy of another's residence.

2. Meddling with or disturbing the private life or family relations of another;

3. Intriguing to cause another to be alienated from his friends.

4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect or other personal condition

By: Calano, Ernest Ryan

This article enhances and protects human dignity and personality. Social equity is not sought but it is being shown to someone for us to be treated the same.

Paragraph 1 - includes by the implication respect for person's name, picture, or personality unless needed for publication of information and pictures for legal purposes.

Paragraph 2- includes interference between husband or the wife. Thus, a girl who makes love to a married man, even if there be no carnal relations, disturbs his family life, and damages may therefore be asked of her.

Paragraph 3 - includes gossiping, and reliance on hearsay. There is the meddling of so-called friends who poison the mind of one or more members of the family against one the other members. In this manner many happy family is broken up or estranged.

Paragraph 4 - annoyance, includes criticism of one's health or features without justifiable legal cause. Religious freedom does not authorize anyone to presume one's personality.

St. Louis Realty Corporation vs. Court of Appeals 133 SCRA 179

Facts:

Dr. Aramil is the owner of the house which Arcadio S. Arcadio renting in.

Dr. Aramil seek compensation for damages for a wrongful advertisement of St. Louis Realty Corporation where in house owned by Dr. Aramil was misrepresented to be owned by Arcadio S. Arcadio in Sunday Times on the dates December 15, 1968 and January 5, 1969.

Dr. Aramil wrote to St. Louis Realty Corporation about the said advertisement which was received by Ernesto Magtoto, in-charged of advertising matters. St. Louis Corp. stopped publishing the advertisement. Mr. Magtoto contacted Dr. Aramil and apologized. However, no rectification and apologies were published. This prompted Dr. Aramil's counsel to demand P110, 000 for actual, moral and exemplary damages. On March 18, 1969, St. Louis published an ad now with Mr. Arcadio's house but still no rectification and apologies for the mistake. Dr. Aramil came up filing a complaint on March 29, 1969. April 15, 1969 notice of rectification was published.

Issues:

Whether or not St. Louis Realty Corp. was liable to pay damages to Dr. Aramil.

Held: The Trial Court awarded Dr. Aramil P8, 000 as actual damage, P20, 000 as moral damage ans P2,000 for attorney's fee. Court of Appeals affirmed the judgement wherein damages fall under article 26 and sanctioned by by articles 2200, 2208 and 2219 of the Civil Code.

Article 27

Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

By: Sheryl P Sarmiento

Material Loss

Ø Any material loss that is directly imputable to the refusal or neglect of the public servant.

Moral Loss

Ø damages to the person’s reputation or mental health.
Ø physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury.

FORMS OF MISCONDUCT BY A PUBLIC OFFICER

Misfeasance – improper performance of an act which is ought to be done.
Malfeasance – the performance of some act which ought not to be done.
Nonfeasance - non-performance, failure or refusal to do an act which one is required to do.

Discretionary Duty

Ø The law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed.

Ministerial Duty

Ø One which an officer or tribunal performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority.

Ledesma v. Court of Appeals
G.R L-54598, April 15, 1988

FACTS

Violets Delmo was elected as the treasurer of the Student Leadership Club of the West Visayas College. Delmo extended loans from the funds of the club to some of the students of the school.
The school president claims that the said act of extending loans was against school rules and regulations. Thus, informing Delmo that she was being dropped from the membership of the club and that she would not be a candidate for any award or citation from the school.
Delmo appealed to the Office of the Director of the Bureau of Public Schools and directs that appellant Violeta. M. Delmo, and for that matter all other Club members or officers involved in the case, be not deprived of any award, citation or honor from the school, if they are entitled to it.
On April 27, 1966, the petitioner received by mail the decision of the Director and all the records of the case.
The Director asked for the return only of the records but the petitioner allegedly mistook the telegram as ordering him to also send the decision back.
On the same day, he returned by mail all the records plus the decision of the Director to the Bureau of Public Schools.
The next day, the petitioner received another telegram from the Director ordering him to furnish Delmo with a copy of the decision.
The petitioner, in turn, sent a night letter to the Director informing the latter that he had sent the decision back and that he had not retained a copy thereof.
On May 3, 1966, the day of the graduation, the petitioner received another telegram from the Director ordering him not to deprive Delmo of any honors due her. As it was impossible by this time to include Delmo's name in the program as one of the honor students, the petitioner let her graduate as a plain student instead of being awarded the Latin honor of Magna Cum Laude.
On appeal, the Court of Appeals affirmed the decision.

ISSUE

Whether or not the respondent Court of Appeals erred in affirming the trial court's finding that petitioner is liable for damages under Article 27 of the New Civil Code.

HELD

There is no reason for the findings of the trial and appellate court. The failure of the petitioner to include Delmo in the names of honor students and let her receive the award due her as ordered to him by the Director cannot be disputed that Delmo went through a painful ordeal. Thus, moral damages are but proper.

Article 28

Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any unjust, oppressive or high-handed method shall give rise to a right of action by the person who thereby suffers damage.

By: Fornoles, Charlene Ross V.

Unfair competition is crime punishable under Article 189 of the Revised Penal Code.

The Supreme Court stated that Article 28 of the Civil Code does not forbid competition itself but the use of the methods mentioned in the article that deprives fair chance to engage in business or to earn a living. Under Article 28 of the Civil Code, the following requirements must be met to recover damages

a. It must involve an injury to a competitor or trade rival

b. It must involve acts which are characterized as “contrary to good conscience”, or “shocking to judicial sensibilities”, or otherwise unlawful

The Supreme Court affirmed in a case that the defendant engaged in unfair competition for which the plaintiff was entitled to recover damages and attorneys' fees when faced with the following conduct:

a. the defendant suddenly shifting his or her business from manufacturing kitchenware to plastic-made automotive parts, the plaintiff's line of business;

b. the defendant luring the plaintiff's employees to transfer to his or her employ;

c. the defendant trying to discover the plaintiff's trade secrets;

d. the defendant deliberately copying the plaintiff's products; and

e. the defendant selling those products to the plaintiff's customers.

Article 29.

When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious.

If in a criminal case the judgement of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground.

By: Aprilyn Guiang

First, In order to discuss this article, We need to understand what is civil and criminal liability ?

Civil liability is legal obligation that requires a party to pay for damages or to follow other court-enforcement lawsuit. It is usually monetary damages for injury or losses that the party suing alleges the party sued caused. It requires only preponderance of evidence or 51% certainty.

Criminal Liability have independent character which involves criminal action violating a provision of the criminal code. The penalty includes prisonment and death. It requires beyond reasonable doubt or 99% certainty of evidence.

It clearly now to us the difference of the two liability, let's take a look, what the articles says;

"When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt"

The above sentence of article clearly states that the plaintiff cannot prove the guilt in at least 99% of certainty., so what will happen now?

"a civil action for damages for the same act or omission may be instituted "

The law clearly states, civil action may be established even if the accused is acquitted or free from criminal charges.

How does it possible?

Civil liability is requires lower burden of proof or only preponderance of evidence which means at least 51% of burden of proof but criminal liability is you have to be absolutely certain but certain enough that there is no real reason to believe it or at least 99% of certainty.

What will the defendant next thing to do when criminal charges is acquitted?

The law clearly states that "Upon motion of the defendant" which means he should file an application to the court or judge to obtain a ruling or order. It is not automatic that if acquitted to criminal case, it follows civil liability at least.

And of course, if you win and prove the civil liability, the law says "the court may require the plaintiff to file a bond to answer for damages"

Is it automatic that the defendant can file civil case if acquitted in criminal case?

The law says NO! "If in a criminal case the judgement of acquittal is based upon reasonable doubt, the court shall so declare." It means If there is pronouncement in the judgement of acquittal that there is no basis upon which the civil liability may exist, then, a separate civil action may no longer avail.

"Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgement that the fact from which the civil might arise did not exist" (Rule 111, Sec. 2(c), Rules of Court)

What if the court judgement is silent for civil liability?

The law says, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. It means, lets take a look on the decision made by the court, what is the ground of acquittal and from that, we can conclude if we still can file a civil case.

Urbano v. Intermediate Appellate Court,
G.R. No. 72964, January 7, 1988

Facts:

On October 23, 1980, at 8am in the morning, petitioner Felimeno Urbano went to his ricefield at Brgy. Anonang, San Fabian Pangasinan. He found out that his palay is flooded with water. When he check why it is flooded, Marcelo Javier admitted that the is the one who open the irrigation that causes the flood. Furious Urbano, attacked Javier and resulted to wound in his right palm and swelling of left leg. They report it to San Fabian Police and had a medico legal. They settled in barrio councilman and Urbano agreed to pay and settled amounted to P700.00. But on November 14, 1980, which is 21days after the incident, Urbano rushed to the hospital and died on the next day caused by tetanus toxin that present in healing wound in his right palm.

On April 10, 1981, Urbano charged with a crime of homicide before the circuit criminal court of Dagupan City. After the trial, trial court found guilty as charged and penalised of imprisonment and monetary damages.

Appelant file a motion of reconsideration and submit an affidavit of Brgy Captain Soliven which states that first week of November there is typhoon occur and on November 5, 1980 while conducting the surveillance, they saw Javier catching fish in shallow irrigation.

In the statement of Brgy. Captain, the petitioner claim that the death of Javier was on his negligence.

Issue:

Is the heirs of victim can still claim civil liability, when the petitioner acquitted in criminal liability? Yes, At the very least, the record shows that Urbano is guilty of injuries to the victim which resulted as to the accessories of why the victim got tetanus that caused his death.

Rulings:

The acquittal of the accused on the ground that his has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability. It is also states in the case that civil liability has not thoroughly examined, and in this aspect, it depends on the heir if they still push the civil case.

ARTICLE 30

When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.

By: Ibanez, Jonathan M.

ADDITIONAL EXPLANATIONS AND ARTICLES:

REPUBLIC ACT NO. 9194

March 7, 2003

AN ACT AMENDING REPUBLIC ACT NO. 9160, OTHERWISE KNOWN AS THE "ANTI-MONEY LAUNDERING ACT OF 2001"

Be it enacted by the Senate and House of Representative of the Philippines in Congress assembled:

Section 1. Sec. 3, paragraph (b) of Republic Act No. 9160 is hereby amended as follows:

"(b) 'Covered transaction' is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (PhP 500,000.00) within one (1) banking day.

SECTION 2. Sec. 3 of the same Act is further amended by inserting between paragraphs (b) and (c) a new paragraph designated as (b-1) to read as follows:

"(b-1) 'Suspicious transaction' are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist:

1. there is no underlying legal or trade obligation, purpose or economic justification;

2. the client is not properly identified;

3. the amount involved is not commensurate with the business or financial capacity of the client;

4. taking into account all known circumstances, it may be perceived that the client's transaction is structured in order to avoid being the subject of reporting requirements under the Act;

5. any circumstances relating to the transaction which is observed to deviate from the profile of the client and/or the client's past transactions with the covered institution;

6. the transactions is in a way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or

7. any transactions that is similar or analogous to any of the foregoing."

Article 31

When the civil action is based upon an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

By: Gladys Agaid Lambayong

This article emphasizes the independence of a civil action arising from an obligation from other sources such as law, contracts, quasi-contracts, and quasi-delicts of Article 1157 of the New Civil Code. An obligation arises from the following sources:

· Law – An obligation is from a law when it is imposed by the law itself;

Example: It is an obligation to pay taxes.

· Contract – Obligations arising from contracts have the force of law between contracting parties and should be complied in good faith (Art. 1159, NCC);

Example: An obligation to pay a loan by virtue of an agreement

· Quasi-contract – Obligations arise from quasi-contract when it is from lawful, voluntary and unilateral acts which are enforceable to the end that no one shall be unjustly enriched or benefited at the expense of another.

Example: An obligation to return the money paid by mistake

· Quasi-delict or tort or culpa aquiliana – Obligations arise from quasi-delict when it is from a damage caused to another through an act or omission, there being fault or negligence, but no contractual relation exists between the parties.

Example: An obligation by a tenant to pay for the damages he or she caused in the apartment he/she is renting.

Moreover, it furthers the individuality of the civil action arising from a crime and that from a quasi-delict under Article 2177 (which states that: Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.) because the evidence for a criminal case may not be sufficient for a civil liability with which the preponderance of evidence sufficed. For criminal punishment, the basis of liability is subsidiary while in culpa aquiliana, the basis of liability is primary.

Irrespective of the result of a criminal prosecution, a civil action could still be filed because the basis of a civil action is no longer the criminal liability of the defendant but of other sources such as those mentioned above. However, a civil action cannot be filed if the basis is a purported contract. Article 31 speaks of a civil action that is based on an obligation not arising from the act or omission complained of as a felony. This implies that the obligation must arise from an act that does not constitute a crime. This is in contrast with a civil action that is based on a contract that remains valid even if its violation may constitute a crime, then the civil action can proceed independently.

Case: South City Homes, Inc., Fortune Motors (Phils), Palawan Lumber Manufacturing Corporation v. BA Finance Corporation. GR No. 135462, December 7, 2001.

Ponente: Justice Pardo

Facts:

Motor vehicles were delivered by Canlubang Automotive Resources Corporation (CARGO) to Fortune Motors Corporation on the strength of trust receipts or drafts executed by Fortune with its sureties. The trust receipts or draft were assigned by CARGO to BA Finance Corporation (BAFC), which assumed payment of the vehicles but with the corresponding right to collect such payment from Fortune and the sureties. When the Fortune failed to pay the amounts under the drafts, BAFC demanded from the sureties. When the amount remained unsettled, BAFC filed a complaint for the sum of money with preliminary attachment. A motion to dismiss was field then by the defendant contending that their obligations to the creditor (CARGO) were extinguished by the assignment of the drafts and trust receipts to BAFC without their knowledge and consent and pursuant to the legal provision on conventional subrogation a novation was effected, thereby extinguishing the liability of the sureties.

Issue:

WON BAFC has a valid cause of action for a sum of money following the drafts and trust receipts transactions.

Rulings:

Yes. In the event of default by the entrustee on his obligations under the trust receipt agreement, it is not absolutely necessary that the entruster cancels the trust and take possession of the goods to be able to enforce his rights thereunder. The Court ruled that, significantly, the law uses the word “may” in granting the entruster the right to cancel the trust and take possession of the goods. Consequently, the entruster has the discretion to avail of such right to seek any alternative action, such as third-party claim or a separate civil action which it deems best to protect its right, at any time upon default or failure of the entrustee to comply with any of the terms and conditions of the trust agreement.

*****

Definitions:

Trust receipt – A receipt stating that the wholesale buyer has possession of the goods for the benefit of the financier (Black’s Law)

Surety - One who undertakes to pay money or to do any other act in event that his principal fails therein (Black’s Law)

Novation – substitution of a new contract, debt or obligation for an existing one, between the same or different parties.

*****

Case: Republic of the Phils. vs CA, et. al., GR No. 116463

Ponente: Justice Carpio

FACTS:

DPWH allocated 615 million pesos to several projects covered by twenty-one contracts. The Navotas Industrial Corporation (NIC) was awarded with 194,454,000.00 pesos worth of dredging work in four contracts to be completed within 350 calendar days. NIC contended that it accomplished 95.06% of the required total volume of work or 184,847,970 pesos worth of services based on an alleged evaluation by DPWH. However, NIC maintained that DPWH only paid 79.22% of the total accomplished work, leaving a balance of 30, 799, 676 pesos.

On September 20, 1988, NIC filed a complaint for the sum of money with the Malabon Trial Court. The petitioner contented that NIC was not entitled to the amount claimed because upon verification and investigation of the DPWH fact-finding committee, the dredging contracts of NIC with DPWH were null and void. Petitioner claimed that NIC worked on the project five or six months before the award of the dredging contracts to NIC. The contracts of NIC were awarded without any public bidding. Moreover, DPWH discovered that NIC, through its corporate officers, connived with some DPWH officials in falsifying certain public documents to make it appear that NIC had completed a major portion of the project, when no dredging work was actually performed. The scheme enabled NIC to collect from DPWH ₱146,962,072.47 as payment for work allegedly accomplished. Petitioner thus filed a counterclaim for the return of the ₱146,962,072.47 plus interest and exemplary damages of ₱100 million.

On July 14, 1986, DPWH filed with the Office of the Tanod bayan (Special Prosecutor) a case of estafa thru falsification of public documents and for violation of RA 3019 against former Minister Hipolito, other DPWH officials, Cipriano Bautista and the president of NIC. It was only on 17 June 1991 that former Ombudsman Conrado Vasquez approved the resolution of the Office of the Special Prosecutor finding probable cause for estafa thru falsification of public documents and for violation of Section 3 (e) and (g) of RA No. 3019. On April 14, 1993, petitioner filed before the trial court motion to consolidate a civil case with criminal cases in the Sandiganbayan because the civil case for collection and the criminal cases arose from the same incidents and involved the same facts.

The trial court denied the petition for consolidation.

The CA dismissed the petition.

Issue:

Whether the CA erred in not ordering the consolidation of the civil case with the criminal cases with the Sandiganbayan as required by Section 4(B) of PD 1606.

Rulings:

No. The Court could not order the consolidation of the civil case for the collection with the criminal cases for two reasons. First, the Sandiganbayan has no jurisdiction over the collection case. Second, the Rules of Court do not allow the filing of a counterclaim or a third-party complaint in a criminal case.

For the first reason, Act. No. 8249 outlining the jurisdiction of the Sandiganbayan, does not include civil cases for collection of sum of money among the cases falling under the jurisdiction of the Sandiganbayan. If the collection case is consolidated in the trial court with the criminal cases, the Sandiganbayan will have no jurisdiction to hear and decide the collection case. Even if NIC proves it is entitled to payment, the Sandiganbayan will have no jurisdiction to award any money judgment to NIC. NIC will still have to file a separate case in the regular court for the collection of its claim. Thus, the avowed purpose of consolidation which is to avoid multiplicity of suits will not be achieved.

Second, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure expressly requires the accused to litigate his counterclaim separately from the criminal action. Thus, a counterclaim in a criminal case must be litigated separately to avoid complication and confusion in the resolution of the criminal cases. The same rationale applies to NIC’s collection case against petitioner. Thus, NIC’s collection case must be litigated separately before the trial court to avoid confusion in resolving the criminal cases with the Sandiganbayan.

The case does not also fall under Article 31 which speaks of a civil action "based on an obligation not arising from the act x x x complained of as a felony." This clearly means that the obligation must arise from an act not constituting a crime. In the instant case, the act purporting to create the obligation is assailed as a crime in itself. That act, which is prohibited by law, is the entering into dredging contracts that are manifestly and grossly disadvantageous to the government. A contract executed against the provisions of prohibitory laws is void. If the dredging contracts are declared illegal, then no valid obligation can arise from such contracts. Consequently, no civil action based on such contracts can proceed independently of the criminal action.

Clearly, NIC’s civil case before the trial court does not fall under Article 31 of the Civil Code. This calls then for the application of the second paragraph of Section 2 of Rule 111 which states that "if the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits." Consequently, the civil case for collection pending in the Malabon trial court must be suspended until after the termination of the criminal cases filed with the Sandiganbayan.

Article 32

Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;

(7) The right to a just compensation when private property is taken for public use;

(8) The right to the equal protection of the laws;

(9) The right to be secure in one’s person, house, papers, and effects against unreasonable searches and seizures;

(10) The liberty of abode and of changing the same;

(11) The privacy of communication and correspondence;

(12) The right to become a member of associations or societies for purposes not contrary to law;

(13) The right to take part in a peaceable assembly to petition the Government for redress of grievances;

(14) The right to be a free from involuntary servitude in any form;

(15) The right of the accused against excessive bail;

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one’s self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19) Freedom of access to the courts.

By: Meneses-Gapac, Xiennia B.

In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

Defining some words and phrases:

Charges and offenses being committed in connection with the Civil Code specifically in this Article are called civil cases. Civil cases are cases are brought about by one individual against another individual. There is no crime involved as long as the Penal Code is concerned. If the plaintiff succeeds in their case, the usual result is payment of money (exemplary and moral damages)

Defining some words and phrases:

Suffrage simply means the right to vote

Case: Erlinda Francisco v. Ricardo Ferrer, G.R. No. 142029

Facts:

Mrs. Rebecca Lo and her daughter Annette Ferrer ordered a three layered cake from Fountainhead Bakeshop. It was then agreed that the wedding cake shall be delivered at 5:00 o’clock in the afternoon, stating clearly that the wedding is scheduled on December 14, 1992.On the day of the wedding, December 14, 1992, plaintiffs arrived at the Cebu Country club around 6:00 o’clock in the evening. They immediately notice the absence of the wedding cake. At 8:00 o’clock they were informed that no wedding cake will be delivered because the order slip got lost. Plaintiffs were then compelled to buy the only available cake at the Cebu Country Club which was a sans rival. Even though they felt that it was a poor substitute to a wedding cake, the cutting of the cake is always a part of the ceremony. At 10:00 o’clock in the evening, the wedding cake arrived but plaintiffs declined to accept it, besides their order was a three-layered cake and what was actually delivered was a two-layered one. Subsequently, defendant Erlinda Francisco sent a letter of apology accompanied with a P5,000.00 check, however, the same was declined by plaintiffs because they felt it was inadequate. Respondents filed an action for breach of contract with damages against petitioners. The trial court rendered a decision in favor of plaintiffs

Issues:

Whether the Court of Appeals erred in affirming the trial court’s award of moral damages and increasing the amount from thirty thousand (P30,000.00) to two hundred fifty thousand pesos (P250,000.00)

Whether the Court of Appeals was justified in awarding an addition to moral damages and exemplary damages of one hundred thousand pesos (P100,000.00).

Ruling:

To recover moral damages in an action for breach of contract, the breach must be palpably wanton, reckless, malicious, in bad faith, oppressive or abusive.

In this case, the SC finds no such fraud or bad faith.

The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish, serious anxiety as the result of the actuations of the other party. Invariably such action must be shown to have been willfully done in bad faith or with ill motive.

Mere allegations of besmirched reputation, embarrassment and sleepless nights are insufficient to warrant an award for moral damages. It must be shown that the proximate cause thereof was the unlawful act or omission of the [private respondent] petitioners.

An award of moral damages would require certain conditions to be met, to wit: (1) first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; (2) second, there must be culpable act or omission factually established; (3) third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and (4) fourth, the award of damages is predicated on any of the cases stated in Article 2219

In the same fashion, to warrant the award of exemplary damages, “[t]he wrongful act must be accompanied by bad faith, and an award of damages would be allowed only if the guilty party acted in a wanton, fraudulent, reckless or malevolent manner.

The requirements of an award of exemplary damages are: (1) they may be imposed by way of example in addition to compensatory damages, and only after the claimant’s right to them has been established; (2) that they cannot be recovered as a matter of right, their determination… depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner.

Nevertheless, the facts show that when confronted with their failure to deliver on the wedding day the wedding cake ordered and paid for, petitioners gave the lame excuse that delivery was probably delayed because of the traffic, when in truth, no cake could be delivered because the order slip got lost. For such prevarication, petitioners must be held liable for nominal damages for insensitivity, inadvertence or inattention to their customer’s anxiety and need of the hour. “Nominal damages are `recoverable where a legal right is technically violated and must be vindicated against an invasion that has produced no actual present loss of any kind or where there has been a breach of contract and no substantial injury or actual damages whatsoever have been or can be shown.

Nominal damages may be awarded

“to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, not for indemnifying the plaintiff for any loss suffered.

The Court GRANTS the petition. The Court REVERSES the decision of the Court of Appeals

Article 33.

In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

By: Perolina,Nil Jay V.

Definition of terms

Defamation - In Article 353 of the Philippines Revised Penal Code, libel is defined as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Fraud- In Article 1338 of Civil Code, it is defined as fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to.

Physical Injuries- shall be used in its generic sense and includes death. It shall be understood to mean bodily injury, not the crime of physical injuries. It includes consummated, frustrated or attempted homicide.

Preponderance of evidence- the weight, credit and value of the aggregate evidenced of one is superior to the other

Question

1. Is there a need to reserve the right to prosecute civil liability of a criminally liable person?

- Generally speaking, there is no more need to reserve the right to prosecute the civil action under Articles 32, 33 34 and 2176 of the Civil Code because the foundation of these articles is Article 100 of the Revised Penal code which provides that every person who is criminally liable shall also be civilly liable.

While the Rules of Court require the reservation, what is reserved is the right to file a civil action to enforce the civil liability arising from the crime charged as a felony, otherwise, it is deemed filed with the criminal action. -Reservation of the independent civil action (under Rule 111, Section 1, of the Rules of Court)

Case:

YAKULT PHILIPPINES AND SALVADO vs. CA et al

G.R. No. 91856

October 5, 1990

FACTS:

A five-year old boy, Roy Camaso, while standing on the sidewalk of M. de la Fuente Street, Sampaloc, Manila, was sideswiped by a Yamaha motorcycle owned by Yakult Philippines and driven by its employee, Larry Salvado. Salvado was charged with the crime of reckless imprudence resulting to slight physical injuries in an information that was filed with the then City Court of Manila. Later on, a complaint for damages was filed by Roy Camaso represented by his father, David Camaso, against Yakult Philippines and Larry Salvado in the RTC of Manila.

A decision was rendered in the civil case ordering defendants to pay jointly and severally the plaintiff for actual expenses for medical services and hospital bills, attorney’s fees and the costs of the suit.

Petitioners’ claimed that the civil action for damages for injuries arising from alleged criminal negligence of Salvado, being without malice, cannot be filed independently of the criminal action under Article 33 of the Civil Code. Further, it is contended that under Section 1, Rule 111 of the 1985 Rules on Criminal Procedure such a separate civil action may not be filed unless reservation thereof is expressly made.

The Court of Appeals dismissed the petition. The motion for reconsideration was denied.

ISSUE:

Can a civil action instituted after the criminal action was filed prosper even if there was no reservation to file a separate civil action?

HELD: The petition is DENIED. The questioned decisions of the CA are hereby AFFIRMED

Article 34

When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

By: Laurente, Ivy M.

DEFINITION OF SIGNIFICANT TERMS USED:

City or Municipal police force— are law enforcement agencies that are under the control of local government. This includes the municipal government, where it is the smallest administrative subdivision. They receive funding from the city budget, and may have fewer legal powers than the “state paid” police.

Meaning of “Independent Civil Action” – An independent civil action is one that is brought distinctly and separately from a criminal case allowed for considerations of public policy, because the proof needed for civil cases is less than that required for criminal cases; but with the injunction in general that success in financially recovering in one case should prevent a recovery of damages in the other. It should be noted that the bringing of the independent civil action is permissive, not compulsory.

Requisites when the Law Grants an Independent Civil Action

1. Article 32 – (breach of constitutional and other rights)

2. Article 33 – (defamation, fraud, physical injuries)

3. Article 34 – (refusal or failure of city or municipal police to give protection)

4. Article 2177 – (quasi-delict or culpa aquiliana)

QUEZON CITY GOVERNMENT and ENGR. RAMIR J THOMPSON, Petitioners

vs.

FULGENCIO DACARA Sr, Respondent

G.R No. 150304, JUNE 15, 2005

Panganiban, J.:

FACTS:

February 28, 1988, Dacara Sr’s rammed against a pile of earth/ street diggings at Matahimik Street, Quezon City, which was then repaired by the Quezon City Government and his car turned turtle after it. Subsequently, Dacara Jr. allegedly obtained bodily injuries and his vehicle was extensively damaged. Prior to the incident, in behalf of his minor son, Fulgencio Dacara Sr filed a claim for damages against the Local Government of Quezon City and Engr. Ramir J. Thompson before the RTC. The LGU defended that it was Dacara Sr's fault and negligence and they claimed that they put necessary warning signs.The trial court ruled that the LGU is liable. The petitioners appealed to the higher court but the Court of Appeals affirmed the rulings of the RTC.

ISSUE: Whether or not Engr Ramir Thompson and the Quezon City Government be held liable for damages due to the injuries suffered by Dacara Jr?

HELD:

Yes. The negligence of Engr Ramir J Thompson is considered as the main causue of Dacara Jr.'s injuries as well as the damages in Dacara Sr.'s car. Since Engr. Thompson is an employee of the LGU, it made the LGU subsidiarily liable for the incident. The petitioner’s claimed that there were no precautionary signed installed in the place of the accident and it was affirmed by the policemen who responded in the incident. In relation to this, the LGU and Engr. Thompson under Article 2189 of the New Civil Code that Local Government and its employees should be responsible not only for the maintenance roads/ streets but also for the safety of the public. Also, compensatory damages was awarded to the respondent.

Article 35

When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant’s motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious.

If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings.

By: Laurente, Ivy M.

RESERVATION OF CIVIL ACTIONS

Rule 111 of the Rules of Court of the Philippines sets out the procedure with respect to the reservations in criminal cases with respect to the civil liability of the accused. Thus,

Section 1. Institution of criminal and civil actions —

(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages.

Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court.

Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a)

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.

Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.

Section 2. When separate civil action is suspended —

After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n)

The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. (2a)

Section 3. When civil action may proceed independently —

It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.

Section 4. Effect of death on civil actions —

The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from delict.

Section 5. Judgment in civil action not a bar —

A final judgement rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action.

ARTICLE 36

Pre-judicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code.

By: Sarmiento , Sheryl P

PREJUDICIAL QUESTION

a question which arises in a case, the resolution of which is a logical antecedent of the issue involved in said case and the cognizance of which pertains to another tribunal.

ELEMENTS

Rule 111, Sec 7, Rules of Court

a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the criminal action;

b) the resolution of such issue determines whether or not the criminal action may proceed.

G.R. No. 112381 March 20, 1995
ISABELO APA, MANUEL APA and LEONILO JACALAN, petitioners,
vs.
HON. RUMOLDO R. FERNANDEZ, HON. CELSO V. ESPINOSA, and SPS. FELIXBERTO TIGOL, JR. and ROSITA TAGHOY TIGOL, respondents.

MENDOZA, J.:

FACTS

u Isabelo Apa, Manuel Apa, Leonilo Jacalan and Rosita Tigol were the heirs of Filomeno and Rita Taghoy who left a parcel of land in Agus, Lapu-lapu City. Rosita Tigol acquired a title over the land so the petitioners filed an action for the nullity of the title and partition of the land. They occupied a portion of lot and constructed their respective houses without the consent and knowledge of Tigol. Hence, the petitioners were charged for violation of PD No. 772 (Anti-Squatting Law)

u Petitioners moved for the suspension the criminal action on the ground of a prejudicial question but the trial court denied the motion.

ISSUE

Whether or not the petitioner’s motion to suspend the criminal action be granted on the ground of prejudicial question.

HELD

Yes. The motion should be granted.

A prejudicial question is a question which is based on a fact distinct and separate from the crime but so intimately connected with it that its resolution is determinative of the guilt or innocence of the accused.

In the criminal case, the question is whether petitioners occupied a piece of land not belonging to them but to private respondent and against the latter's will. The ownership of the land in question is the issue in the civil case.

Whatever may be the ultimate resolution of the question of ownership, such resolution will be determinative of the guilt or innocence of petitioners in the criminal case. Surely, if petitioners are co-owners of the lot in question, they cannot be found guilty of squatting because they are as much entitled to the use and occupation of the land as are the private respondent Rosita T. Tigol and her family.

Zapanta v. Montesa,
G.R No. L-14534, February 28, 1962

FACTS:

On May 20, 1958 Olimpia Y. Co filed a bigamy case against Merardo L. Zapanta alleging that the latter having previously married to Estrella Guarin, and without having the said marriage dissolved contracted a second marriage with the complainant. On June 16, 1958, Zapanta filed a case against Co for the annulment of their marriage on the ground of duress force and intimidation. Co filed a motion to dismiss the complaint upon the ground that it stated no cause of action but was denied after a few days. On Sept. 2, 1958, Zapanta filed a motion to suspend proceedings on the ground that the civil case was a prejudicial question. The court denied the motion as well as petitioner’s motion for reconsideration and ordered his arraignment. After entering a plea of not guilty, petitioner filed the present action.

ISSUE

Whether or not the issue involved in the civil action is determinative of the petitioner’s guilt or innocence of the crime of bigamy.

HELD

Zapanta’s act was involuntary and cannot be the basis of his conviction for bigamy. Thus, the issue involved in the action for the annulment of the second marriage is determinative of the petitioner’s guilt or innocence of the crime of bigamy. The civil action for annulment must first be decided before the action for bigamy can proceed. Wherefore, the writ prayed for in the petition was hereby granted. Without any costs.

§ Action for the Nullity of Marriage is not a prejudicial question to a concubinage case. (Meynardo Beltran v. People, et al.,GR No. 137567)

Does Prejudicial Question exist in the following instances?

1. Civil case to Administrative case

2. Civil case to another Civil case

Ø Generally, there would be no prejudicial question in these cases. However, considering the rationale behind the principle of prejudicial question which is to avoid two conflicting decisions, prudence dictates that we apply the principle underlying the doctrine of prejudicial question.

Article 37.

Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. (n)

By:Maia Caireen R. Rosales-Ademe

A PERSON is any being, physical or moral, real or juridical and legal, susceptible of rights and obligations, or of being the subject of legal relations.

A person is juridically classified in two groups: Natural persons and Juridical persons.

FOUR CONCEPTS:

1. JURIDICAL CAPACITY means the fitness to be the subject of legal relations

- i.e. entering into marriage, and having parental obligations

- It is inherent or inborn in every natural person

- NATURAL PERSON – is an individual human being or a physical person individual with conscious self.

- Juridical Capacity is lost only through death.

- All juridical capacity is equal. For a natural person, it is a part of being a person.

- ARTIFICIAL PERSON – as defined in this Article is (1) a collection of succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties.

- personality created by law like corporation, city government, partnerships, begin to have juridical personality on the date they are created, and the issuance of certificate of registration

2. CAPACITY - it is the power to do acts with legal effect

- Capacity to act is the ACTIVE ASPECT of legal capacity. It is the ability to make actions with legally binding consequences

- Unlike the JURIDICAL CAPACITY that is inherent or natural characteristic of a human being, this is acquired upon the attainment of the age of majority and may also be lost

- also, capacity to act exists in VARYING DEGREES.

- Nobody has 100% capacity to act. As long as one has contractual capacity or the full civil capacity, one is near 100 and is generally able to perform contracts or dispose or acquire properties

- At the same time, nobody has 0% capacity. Infants are close to 0% but still have the capacity to act. An example is a fetus, it has his capacity to succeed, and inherent his parents properties even if he is still unborn.

3. PERSON – a physical or legal being susceptible of rights and obligations or of being the subject of legal relations

4. RIGHT – it is defined as the power which a person has to demand from another a prestation (a performance of something due upon an obligation) or the power to do or not to do, or to demand something; as a rule, this power or privilege is demandable against another person

Elements of a right.

(1) Subject,. It is the right that exists in favor of persons.

· Every right involves two persons, one who may demand its enforcement, or what we call

· the SUBJECT PERSON who is the active subject that has the power or privilege; has a right; and whom the passive subject owes a duty

· PASSIVE SUBJECT, must suffer or obey such enforcement from the subject person

· This is the person against whom this power and privilege is demandable

(2) Object. Rights are exercised over things, or services, for the satisfaction of human wants, physical or spiritual.

· These are the things and services that constitute or covered the object of rights.

(3) Efficient cause. This is the tie that binds the subject and the object together.

· It produces all legal relations. It springs mainly from acts of violation.

· This is the fact that gives rise to the power or privilege

Here is an illustration of the elements of a right.

A and B entered into a contract of sale over A’s car where they agreed to buy and sell the same for P400,000.00. A and B are the passive and active subjects. The car is the object and the price is the efficient cause.

Estate of decedent is a person.

Why is an estate considered by law as a person? This is what they call an artificial person (persona ficta); an entity holding legal rights and duties distinct from the individual; a company for example which can be sued with independent rights, responsibilities and liabilities in law.

It said by the Supreme Court that there is no dispute that an ejectment suit survives the death of a party. The supervening death of plaintiff-appellant did not extinguish her civil personality. As in the case of (Republic vs. Bagtas, 6 SCRA 262)

FACTS:

The defendant was sentenced by the Court of First Instance of Manila to pay the total value of the three bulls plus the breeding fees with interest on both sums, the legal rate from the filing of the complaint and costs for the three bulls that Bagtas borrowed from the Republic of the Philippines through the Bureau of Animal Industry for he has failed to pay the book value or to return them.

An ex parte motion filed by the plaintiff for the appointment of a special sheriff to serve the writ outside Manila and notified Felicidad M. Bagtas, the surviving spouse of the defendant who died on October 23, 1951, as administratix of his estate. She filed a motion that the two bulls were returned to the Bureau Animal of Industry and that sometime in November 1958 the third bull, died from gunshot wound inflicted during a Huk raid, and prayed that the writ of execution be quashed and that a writ of preliminary injunction be issued. On 31 January 1959 the plaintiff objected to her motion. On 6 February 1959 she filed a reply thereto. On the same day, 6 February, the Court denied her motion.

The appellant contends that the death of the third bull was due to force majeure therefore relieves her from the duty of returning the bull or paying its value to the appellee. The contention is without merit.

ISSUE:

WON the administratix is obliged to pay the debt of the deceased intestate

WON the administratix is obliged to pay for the object that she claimed lost due to force majeure

HELD:

The appellant contends that the contract was commodatum. Article 1942 of the Civil Code provides that a bailee in a contract of commodatum —
. . . is liable for loss of the things, even if it should be through a fortuitous event:
(2) If he keeps it longer than the period stipulated . . .
(3) If the thing loaned has been delivered with appraisal of its value, unless there is a stipulation exempting the bailee from responsibility in case of a fortuitous event.

The appellant's contention that the demand or prayer by the appellee for the return of the bull or the payment of its value being a money claim should be presented or filed in the intestate proceedings of the defendant, is not altogether without merit because section 17 of Rule 3 of the Rules of Court provides that —

                After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. . . .

and after the defendant's death, his counsel failed to comply with section 16 of Rule 3 which provides that —

                Whenever a party to a pending case dies . . . it shall be the duty of his attorney to inform the court promptly of such death . . . and to give the name and residence of the executory administrator, guardian, or        other legal representative of the deceased . . . .

                The writ of execution appealed from is set aside, without pronouncement as to costs.

                The Court of Appeals certified this case to this Court because only questions of law are raised.

Juridical capacity distinguished from capacity to act.

• JURIDICAL CAPACITY is the fitness of man to be the subject of legal relations while CAPACITY TO ACT is the power to do acts with juridical effect

• JURIDICAL CAPACITY inherent and ineffaceable attribute of man; it attaches to him by the mere fact of his being a man and is lost only through death while CAPACITY TO ACT is acquired and may be lost

• The JURIDICAL CAPACITY can exist without the CAPACITY TO ACT, but the existence of the CAPACITY TO ACT always implies that of the JURIDICAL CAPACITY . The union of these two is the full civil capacity. (Sanchez Roman, 112-113; 1 Vaverde, 212).

Article 38.

Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements.

By: Rosales-Ademe, Maia Caireen

There are persons who have restricted capacity to act, like minors, insanes, imbeciles, deaf-mutes, prodigals, or those under civil interdiction. Such conditions merely restrict their capacity to act. They, however, have juridical capacity and are susceptible of rights and even of obligations, when the same arise from their acts or from property relations. These persons are not exempted from their obligations. Their parents or guardians may still be liable.

Article 39.

The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion.

A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law.

By: Acuno-Pomintel, Florabel

Art. 39 is the third article in the Book 1 of Persons with a title of Civil Personality

Person – is the one who is capable to exercise ownership and legal rights and to incur and contract obligations.

Two Kinds of Persons:

1. Natural Person – human beings

2. Juridical Person – created by operation of law

Restrictions or limits on the capacity to act are:

1. Age

Please note that, the last paragragh of this Article has been repealed by the Family Code and RA 6809 An Act of Lowering the age of Majority from 21 years to 18 years old. As a rule, a minor may not give consent to a contract.

Illustration A:

A and B are both minors. A sold his car to B for PhP400,000.00 A delivered it and B paid. Such contract is unenforceable.

· Article 1403 of the New Civil Code which provides that one of the classes of unenforceable contract is where both parties to the same are incompetent to give consent. However, the contract can be cleansed of its defect if their parents or guardians would ratify the same (Article 1407, NCC).

Illustration B:

A, a minor, sold his car to B, a person of age. B paid A and A delivered the car to B. This

contract is voidable.

· However, Article 1396 of the NCC provides that if the parents or guardian of said incompetent ratify the same, it is cleansed of its defect from the moment of signing or perfection of the contract of the minor.

There is restriction of capacity to act in both illustrations, but the law recognizes effects of the said contracts.

2. Sickness

An insane or demented person or a deaf-mute who does not know how to read and write may not give consent to a contract as provided by Article 1327, Section 2 of NCC).

Insane or Demented Persons. – When a person is insane or demented, he is detached from reality. He does not know what he is doing. He cannot act with legal effects. Consequently, he cannot enter into valid contracts. During lucid intervals, as may happen in rare cases, they may enter into valid contracts because at this moment, they are sane and capable of knowing what they are doing.

Deaf-Mutes. – Not all deaf-mutes are disqualified to give consent to contracts. Only those who do not know how to write are disqualified.

3. Penalty

In the commission of certain offenses, accessory penalties are imposed by law such as perpetual or temporary disqualification to hold office, suspension from public office, curtailment of the right to vote or be voted, the right to exercise a profession and civil interdiction.

Civil Interdiction is an accessory penalty to the following principal penalties:
1. Death if commuted to life imprisonment

2. Reclusion perpetua – imprisonment of 20 years and 1 day to 40 years

3. Reclusion temporal – imprisonment of 12 years and 1 day to 20 years

Civil interdiction deprives the offender the following rights:

1. Parental rights
2. Guardianship over the ward
3. Marital authority
4. Right to manage property and to dispose of the same by acts inter vivos but he can make a will as the latter shall take effect after death.

4. Prodigality

The acts of prodigality must show a morbid state of mind and a disposition to spend, waste and lessen the estate of compulsory heirs.

Prodigals were persons who, though of full age, were incapable of managing their affairs, and of the obligations which attended them, in consequence of their bad conduct, and for whom a curatorwas therefore appointed, Rule 93, Sec 2 of Rules of Court.

5. Alienage

Aliens cannot acquire land in the Philippines.

No private lands shall be transferred or conveyed except to individuaals, corporations, or associations qualified to acquire or hold lands of the public domain, Art XII, Section 7 of 1987 Constitution

Sec 14 of this Article also provides that Aliens cannot practice their professions in the Philippines.

They cannot also operate public utilities as stated in Sec 11 of Art XII.

To illustrate, the case of Cheesman vs CA, a foreigner marries a Filipino and out of conjugal funds, a private land is acquired, such cannot form part of their community of property because the foreigner is disqualified from acquiring land in the Philippines. Dura lex sed lex.

6. Absence

When a person disappears from his domicile, his whereabouts being unknown, he is considered as absent as stated in Article 381 of the Civil Code. The court can appint an administrator at the instance of an interested person, he can be a relative or a friend.

A presumption of death may result due to continued absence of a person, Art 390 of NCC, however this is not conclusive for he may be alive and can still dispose of his properties.

7. Insolvency and Trusteeship

If a person is declared insolvent, he cannot just dispose of his properties existing at the time of the commencement of the proceedings for insolvency.

No payments of property or credit can be made to him, Sections 18 & 24 of Act 1956.

8. Family Relations

By reason of public policy, the possibility that one may exert undue influence over the other, below restrictions are applied:

· Husband and wife, including common law relationships, cannot donate to one another, Art. 87 of the Family Code

· They cannot sell to one another except where they are governed by the complete separation regime or when there is separation of properties during marriage, Art 1490 of NCC.

· They cannot also enter into a universal partnership of all properties

· Void marriages such as

9. Deaf-mute

Article 820 of the NCC provides that a person who is blind or deaf or dumb cannot be witness in a will, yet, a deaf-mute may execute a will, Art. 807 of NCC and also a blind person can execute a will, Art. 808 of NCC.

The consequences of these circumstances are governed in this code, rules of court or in special laws. Capacity to act is not limited to acts of religious belief or political opinion.

Cited Case:

Domingo Mercado and Josefa Mercado, plaintiffs-appellants, v. Jose Espiritu, administrator of the estate of the deceased Luis Espiritu, defendant-appellee, G.R. No. L-11872, December 1, 1917

Perfecto Salas Rodriguez for appellants

Vicente Foz for defendant-appellee

Facts:

This is an appeal by bill of exceptions, filed by the counsel for the plaintiffs from the judgment of September 22, 1914, in which the judge of the Seventh Judicial District dismissed the complaint filed by the plaintiffs and ordered them to keep perpetual silence in regard to the litigated land, and to pay the costs of the suit.

On April 9, 1913, counsel for Domingo and Josefa Mercado brought suit in the Court of First Instance of Calumpit, Bulacan against Luis Espiritu. The latter died, the complaint was amended and directed to the son of Luis Espiritu, Jose Espiritu in his capacity as the administrator of the estate of the deceased.

Margarita Espiritu y Yutoc, sister of Luis Espiritu, died in in 1897 leaving a 48 hectares of land to her legal heirs, the husband and 4 children including the plaintiffs. About the year 1910, Luis Espiritu, by means of cajolery, induced, and fraudulently succeeded to entered into a contract of sale with the plaintiffs, Domingo and Josefa Mercado who pretended to be of legal age.

ISSUE:

Whether or not the deed of sale is valid when the minors presented themselves to be of legal age at the time of perfection of the contract.

RULING:

The Court ruled that the contract of sale is VALID even if it were made and entered into by minors, who pretended to be of legal age.

The ruling was in accordance with the provisions of the law on the doctrine of estoppel and sec. 6 (a) Rule 123 which states that 'Whenever a party has, in its declaration, an act or an omission, intentionally or deliberately led another party to believe a particular thing to be true, and to act upon such belief, he cannot, in any litigation arising of such declaration, be permitted to falsify it.'

Furthermore, the sale of the real estate made by a minor who pretended to be of legal age, when in fact, he is not, is VALID, and he will not be permitted to excuse himself from the fulfillment of the obligations contracted by him or to have it annulled. The judgment that holds such sale to be valid and absolves the purchaser from the complaint filed against him does not violate laws relative to the sale of minor's property, nor the judicial rules established in consonance therewith.

The fact that a minor at the time of entering into a contract falsely represented to the person with whom he dealt that he had attained the age of majority will create an estoppel against the infant/minor, the other party had a good reason to believe that the minor is capable of contracting.

Chapter 2 - Natural Persons

Article 40.

Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided, it be born later with the conditions specified in the following article.

By: Acuno-Pomintel, Florabel

Person - in juridical sense, is any being, physical or moral, real or juridical and legal, susceptible of rights and obligations, or of being the subject of legal relations.

· The purpose of this provision is to prevent simulation of birth for hereditary or successional rights.

· The law fixes the intra-uterine life of a fetus with three objects in view:

· to assure its existence

· to facilitate and protect its free development

· to give or accord to him certain rights in law

· It must be remembered that even an unborn fetus has rights protected by law.

Birth determines personality

Without birth, there is no human being, there is no natural person fit to be the subject of legal relations, but, a conceived child may be considered born for purposes favorable to it.

Favorable situations of an unborn fetus are as follows, provided by laws:

1. Donations made to conceived and unborn children may be accepted by those who would legally represent them if they are already born, Art 742 of the Civil Code.

2. Article 760 of the NCC, provides that every donation inter vivos, made by person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced by the happening of any of these events:

(1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous;
(2) If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living;
(3) If the donor subsequently adopt a minor child.

3. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious, Article 854 of NCC.

Nasciturus-rule

· an unborn child, if subsequently born alive, is considered as already in existence whenever it is to its own advantage.

· nasciturus or conceived but yet unborn child is not mere expectancy nor merely a technical term given to this juridical figure, but are rights properly called “derechos en estado de pendencia”.

Article 41

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an infra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)

By: Rosales, Gayle Marion R.

Annotation:

The fetus is considered born after its complete separation from the maternal womb, that is the cutting of the umbilical cord. The 2nd sentence in the law avoids the abortion of a 6 month fetus from being considered as birth. The 7th month is the period a child is considered well-formed and viable. In order to be capacitated to inherit, the legatee must be living at the moment the succession opens, except in case of representation when its proper. (Art 2015 of the Civil Code)

Illustration:

A executed a will instituting the fetus inside B’s womb who had an intra-uterine life of 8 months, he would transmit successional rights to his heirs if he is born alive.

Supposed the child has an intra-uterine life of less than 7 months, he must have to live for at least 24 hours from the complete separation from the maternal womb, otherwise, he would not inherit the successional rights to his heirs for he did not have juridical capacity as a requirement to be complied in Article 41.

Supposed A and B are married. They have a son C who is married to D, and they have a son E. A executed a will instituting C but the latter predeceased his father, A. E can inherit by right of representation.

Note that no less than the Constitution affords protection to the unborn, when it says that the State recognizes the sanctity of the family and shall protect and strengthen the family as a basic autonomous social institution.

Acquisition of personality.

Is it necessary to be born in order to die?

No, a child does not need to be born to be considered a dependent because even during the period of conception, it is already dependent to the mother for sustenance to survive.

Are the parents entitled to the bereavement benefits under the Collective Bargaining Agreement (CBA) with the employer?

No, the death of a fetus, at whatever stage of pregnancy, if it did not acquire any juridical personality, was excluded from the coverage of the CBA.

Article 40 provides that a conceived child acquires personality when it is born, and Article 41 defines when a child is considered born. Article 42 plainly states the civil personality is extinguished by death.

G.R. No. 156343, October 18, 2004 JOEY D. BRIONES, PETITIONER, VS. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL AND LORETA P. MIGUEL, RESPONDENTS PANGANIBAN, J.:

FACTS:

On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor child, Michael Kevin Pineda, which he amended on April 25, 2002 in the Petition to include Loreta P. Miguel, the mother of the minor, as one of the respondents.

A Writ of Habeas Corpus was issued by the Court on March 11, 2002 ordering the respondents to produce before the Court the living body of the minor Michael Kevin Pineda on March 21, 2002 at 2:00 o’clock in the afternoon.

The petitioner alleged that the minor who was born in Japan is his illegitimate son with respondent Loreta P. Miguel who is now married to a Japanese national and is presently residing in Japan. He further alleged that on 1998 he caused the child to be brought to the Philippines to be taken care of him and be sent to school. Child finished the nursery course in Blessed Angels L.A. School, Inc. in Caloocan City, SY 2000-2001 . According to him, his parents, who were both retired and receiving monthly pensions, assisted him in taking care of the child.

And on May 2, 2001, respondents Maricel and Francisca P. Miguel came to the house of the petitioner in Caloocan City on the pretext that they were visiting the child and requested that they be allowed to bring the said child for recreation at the SM Department store with a promise of bringing him back in the afternoon. However, respondents didn’t.

The petitioner went several times to respondents in Tuguegarao City but he was informed that the child is with the latter’s mother at Santiago City. When he went there, respondent Francisca Miguel told him that minor is with her daughter at Tuguegarao City.

He sought the assistance of the police and the DSWD to locate his son and to bring him back to him, but all his efforts were futile.

Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of Caloocan City which was withdrawn ex-parte.

The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his biological father as he had demonstrated his capability to support and educate him.

On May 6, 2002, the respondents filed their Comment where respondent Loreta P. Miguel denied the allegation of the petitioner that he brought their child to the Philippines and stated that she did pursuant to their agreement.

Respondent Loreta P. Miguel likewise denied petitioner’s allegation to her co-respondents and averred that she took Michael Kevin Pineda from the petitioner when she returned to the Philippines upon his consent.

Respondent alleged that sometime in October 2001, the petitioner was deported from Japan under the assumed name of Renato Juanzon when he was found to have violated or committed an infraction of the laws of Japan. She further stated that since the time the petitioner arrived in the Philippines, he had not been gainfully employed. The custody of the child, according to respondent, was entrusted to petitioner’s parents while they were both working in Japan.

She added that even before the custody of the child was given to the petitioner’s parents, she had already been living separately from the petitioner in Japan because the latter was allegedly maintaining an illicit affair with another woman until his deportation.

She likewise stated in her Comment that her marriage to a Japanese national is for the purpose of availing of the privileges of staying temporarily in Japan to pursue her work so she could be able to send money regularly to her son in the Philippines. She further stated that she has no intention of staying permanently in Japan as she has been returning to the Philippines every 6 months or as often as she could.

Respondent prays that the custody of her minor child be given to her.

ISSUE:

Who should have custody of the child?

RULING:

The CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a situation in which the parents of the minor are married to each other, but are separated either by virtue of a decree of legal separation or because they are living separately de facto. In the present case, it has been established that petitioner and Respondent Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose which parent to live with is deleted, but without disregarding the obligation of petitioner to support the child.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with the MODIFICATION that the disposition allowing the child, upon reaching ten (10) years of age, to choose which parent to live with is DELETED for lack of legal basis. Costs against petitioner.

All children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status. It is apparent that according to the Family Code and the aforecited jurisprudence, the legitimacy and illegitimacy of a child attaches upon his/her conception.

ARTICLE 42

Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (32a)

By: Rosales, Gayle Marion R.

Death defined. The cessation of life. The ceasing to exist. Civil death defined. It is the state of a person who, though possessing a natural life has lost all his civil rights, and as to them, is considered as dead. The law refers to physical death and not presumed death, the person is merely presumed dead because of his absence.

For instance, if a person reappeared after his absence, he can recover his properties or the price thereof if they have been distributed. In marriage, the presumptive death of a spouse for 2 or 4 years must be declared for the purposes of re-marriage. If there is no declaration, the marriage of the present spouse is void.

The 2nd paragraph of the law recognizes the fact that some rights and obligations survive the death of a person. The rights to succession are transmitted from the moment of death. Also, if a penalty has been imposed upon a person, his death extinguishes such penalty. In spite the fact that death extinguishes civil personality, the supervening death of a person does not extinguish his civil personality.

Article 43

Reported by DONA M. VALBUENA #17

If there is doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of the proof, it is presumed that they died at the same time and there shall be no transmission of right from one to the other.

The law is applicable in a situation where two persons are called upon to succeed each other.

Burden of Proof: Whoever alleges the death of one prior to the other shall prove the same;

Absent such proof: Presumption is they all died at the same time. There shall be no transmission of successional rights.

What are the conditions that may warrant the application of the survivorship rule?

It applies when the following conditions are present:

1. The parties are heirs to one another

2. There is no proof as to who died first

3. There is doubt as to who died first

What is the presumption under the survivorship rule?

Presumption of simultaneity of deaths. When two or more persons who are called to succeed each other, die, they shall be presumed to have died at the same time.

SIMILAR PRESUMPTIONS UNDER RULE 131 OF THE RULES OF COURT (Section 3 paragraph jj)

“That except for purposes of succession when two persons perish in the same calamity, such as wreck, battle or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from probability resulting from strength and age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age of sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

A case to help us understand the concept of Art. 43:

GR No. L-5426 – May 29, 1953

Ramon Joaquin (Petitioner) versus Antonio C. Navarro (Respondent)

Ponente-Justice Tuason

FACTS OF THE CASE:

● Petitioner Ramon Joaquin was the acknowledged natural son of Angela Joaquin Navarro

● Respondent Antonio C. Navarro was the son of Joaquin Navarro, Sr. by his first marriage

● This case came from three (3) proceedings for the settlement of the estate of Joaquin Navarro, Sr., his wife Angela Joaquin Navarro, Joaquin Navarro, Jr., and Pilar Navarro who all perished during the Liberation of Manila in February 1945

● The determination of who died first between Joaquin Navarro, Jr. and Angela Joaquin Navarro radically affects the succession rights of Ramon Joaquin

Court of First Instance Ruling:

The order of occurrence of deaths of the Navarros:

1. Pilar, Concepcion and Natividad (daughters)

2. Joaquin Jr. (son)

3. Angela (mother)

4. Joaquin Sr. (father)

Court of Appeals Ruling:

Concurred with the trial court findings except with modification declaring that Joaquin Jr. to have survived his mother.

ISSUE

Whether or not CA erred in its decision

HELD

The Court reversed the CA ruling and held that the distribution of decedents’ estates should be made in accordance with the decision of the trial court.

Chapter 3
Juridical Persons

Article 44. The following are juridical persons:

1. The State and its political subdivisions;

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

3. Corporations, partnerships and associations for private interest or purpose to which law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

A juridical person is an abstract being, formed for the realization of collective purpose, to which the law has granted capacity for rights and obligations

1. State is defined as a community of persons, more or less numerous, permanently occupying a fixed territory, possessing an organized government, independent of external control, to which a great body of inhabitants render habitual obedience. (Suarez, 2016: 45)

Section 1, Article X, of the 1987 Constitution provides: The territorial and political subdivisions of the Republic of the Philippines political subdivisions are the provinces, cities and municipalities and barangays. There shall be autonomous regions of Muslim Mindanao and the Cordillera as hereinafter provided.

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

e.g. Land Bank of the Philippines was created under Chapter IV, Sections 74 to 100 of Republic Act No. 3844, August 8, 1963 – under President Diosdado Macapagal’s Administration (The Agricultural Tenancy Code of 1963). Through series of laws (Presidential Decrees, Executive Orders and Republic Acts), Land Bank of the Philippines was revitalized and became a universal bank.

3. Corporations, partnerships and associations for private interest or purpose to which law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Note: Basically for profit or non-profit organizations (PO/NGOs) are registered with the Securities and Exchange Commission (SEC).

ARTICLE 47

Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of article 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same. (39a)

By: Laurente, Ivy M.

No. 2 of article 44

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

Some examples of Corporations, institutions and other entities for public interest.

• Home Development Mutual Fund (Pag-IBIG)

• Land Bank of the Philippines (LBP)

• Light Rail Transit Authority (LTRA)

• Bangko Sentral ng Pilipinas (BSP)

• Development Bank of the Philippines (DBP)

• Philippine Charity Sweepstakes Office (PCSO)

• Government Service Insurance System (GSIS) and etc.

According to Section 40 Title IV of the Corporation Code, a corporation may, by a majority vote of its board of directors sell, lease, exchange, mortgage, pledge, or dispose all its property and assets, including goodwill.

When and why do Corporations undergo dissolution and wind up a company?

• Voluntary filing of the dissolution because the corporation is incapable of continuing the business

• Involuntarily filing of the dissolution through government action as a result of failure to pay tax

• Surrender or expiration of its charter

• Legal proceedings

ARTICLE 48

The following are citizens of the Philippines:

(1) Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines;

(2) Those born in the Philippines of foreign parents who, before the adoption of said Constitution, had been elected to public office in the Philippines;

(3) Those whose fathers are citizens of the Philippines;

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship;

(5) Those who are naturalized in accordance with law. (n)

By: Laurente, Ivy M.

GRACE POE vs. COMELEC,et al
March 8,2016

FACTS:

Petitioner Grace Poe was found abandoned as a newborn infant in the Parish Church of Jaro, Iloilo on Sept. 3, 1968. After passing the parental care and custody over petitioner by Edgardo Militar to Emiliano Militar and his wife, she has been reported and registered as a foundling and issued a Foundling Certificate and Certificate of Live Birth, thus was given the name, Mary Grace Natividad Contreras Militar.

When she turned five (5) she was legally adopted by Ronal Allan Kelley (aka Fernando Poe, Jr) and Jesusa Sonora Poe (aka Susan Roces) and her named was changed to Mary Grace Natividad Sonora Poe.

Years later, she became a registered voter at the age of 18 at San Juan. She migrated to US in 1991 after she married Theodore Llamanzares the she became a naturalized US Citizen.

On May 2005, she finally came back to Philippines and settled here for good. On 2010, ex President Benigno Aquino III appointed her as Chairperson of the MTRCB. Prior to the appointment, she renounced her American citizenship to satisfy the RA 9225 requirements for Reacquisition of Filipino Citizenship.

In her COC for Presidency for May 2016 elections, Grace Poe declared that she is a natural-born citizen of the Philippines and she is already residing in the Philippines for 10 years and 11 months counted from May 24, 2005.

Petition was filed against her candidacy and the COMELEC decided cancelled her run for presidency. Prior to the decision, Poe filed a motion for reconsideration, seeking reversal of the COMELEC’s decision.

Issue:

Whether or not Grace Poe- Llamanzares is a natural- born Filipino citizen.

Held:

Yes. The Supreme Court decided that Grace Grace Poe- Llamanzares is a natural- born Filipino citizen. The Supreme Court cited the following:

• FOUNDLINGS are as a class, natural born- citizens as based on the deliberations of the 1935 Constitutional Convention, wherein though its enumeration is silent as to foundlings, there is no restrictive language either to definitely exclude the foundlings to be natural born citizens.

• Foundlings are automatically conferred with the natural-born citizenship as to the country where they are being found, as covered and supported by the UN Convention Law.

• The Supreme Court also considered that there is high probability that Poe’s biological parents are Filipinos, as being shown in her physical features, aside from the fact that she was found as an infant in Jaro, Iloilo, a municipality wherein there is 99% probability that residents there are Filipinos, consequently providing 99% chance that Poe’s bilogical parents are Filipinos. Said probability and circumstancial evidence are admissible under Rule 128, Sec 4 of the Rules on Evidence.

Therefore, her run for presidency was granted by the supreme court and the COMELEC’s decision was reversed.

ARTICLE 49

NATURALIZATION AND THE LOSS AND REACQUISITION OF CITIZENSHIP OF THE PHILIPPINES ARE GOVERNED BY SPECIAL LAWS

By: Abrigo, Mary Anne L.

1. Citizenship – is a membership in a democratic or political community. It follows the exercise of civil and political rights

2. Nationality – is a membership in any political community whether monarchical, autocratic, or democratic. It does not necessarily carry the exercise of political rights.

* a person can be a citizen of one country and a national of another

Three Modes of Acquiring Citizenship

1. Jus Sanguinis- (by blood) when a child is born by parents who are both Filipinos, wherever he may be born.

2. Jus Soli – ( by place of birth ) if the Filipino couple gives birth to a child in a place which adheres to the principle of Jus Soli, then the child is a citizen of that place.

3. Naturalization, which is an artificial means or process whether judicial or administrative, by which a state placesthe imprint of native citizen wherein it adopts an alien and gives him the imprint and endowment of the country

4. Whether there can be a judicial declaration that a person is a Filipino Citizen, he has to apply for a naturalization and adduce evidence of his qualifications ( Yung Uan Chu v Republic, GR NO. 34973 )

5. But if a person who claims to be a Filipino is being compelled to register as an alien , his remedy is to go to court and file a petition for unjunction and prove therein that he is a Filipino ( Lim v. dela Rosa, L-17790)

* If the person is being deported, but he claims to be a Filipino, and prove it, he be cannot deported , because you cannot deport a Filipino

The first group of citizens enumerated in the Constitution, as they comprise those who were citizens of the Philippines on February 2, 1987 or at the time of the 1987 Constitution

1. Those who were citizens under the provisions of the Philippine Bill of 1902 and the Jones Law of 1916.

2. Those who were naturalized as Filipinos prior to the adoption of the 1935 Constitution.

3. Those who have been declared as Filipino Citizens by final judgment.

4. Those born in the Philippines of foreign parents and had been elected to public office before the adoption of the 1935 Constitution.

Citizenship under the Jones Law of 1916 and Philippine Bill of 1902

* All inhabitants of the Philippine Islands who were Spanish on the 11th of 1899, and resided to the said islands, except to those adhere to preserve their allegiance to the Crown of Spain and others to have citizens of the country, shall be deemed and held to be citizens of the Philippines.

Qualifications of an alien before he can be naturalized

1. Age. He must be at least 21 years of age at the date of election.

2. Residence for 10 years or more in the Philippines.

3. Good moral character in that he should have conducted himself in an irreproachable manner during his stay.

4. Property qualification. He must have lucrative trade, profession or calling.

5. Education. He must be able to speak write in English , Spanish or principal dialect, enrolled his children in a recognized school in the Philippines which teaches Philippine history, civics and government.

How the 10-year residence requirement is reduced.

1. He was born in the Philippines.

2. He is married to a Filipino.

3. He served in the government or held an office.

4. He has served serve as a teacher in a private or piblic school not limited to children of any nationality in any branch of education.

5. He made a useful investment or industry in the Philippines.

Disqualification of an alien who files a petition for naturalization

1. Opposed to organized a government.

2. Is a believer in violence as a means to expose an idea.

3. Is a polygamist or believer in a polygamy.

4. Has been convicted to a crime.

5. Has incurable diseases.

6. Has not mingled socially with Filipinos or he has not embraced Filipino cultures , ideals and customs.

7. Is a citizen of a country with which the Philippines is at war.

8. Is a citizen or national of a country which does not grant same naturalization to Filipinos.

Concept of Derivative Naturalization

• If the husband of an alien woman is naturalized, the wife follows the Filipino citizenship of the husband , the rule is likewise true even if both spouses are foreigners.

Naturalization Law. The petition must be accompanied by an affidavit of the petitioner and her husband that she does not belong to the group of disqualified persons and that she must file the petition with Bureau of Immigration.

Citizenship may be lost under the Commonwealth Act No. 63

1. Naturalization in a foreign country.

2. Express renunciation of a citizenship.

3. Subscribing to an oath of allegiance to support the costitution or laws of a foreign country.

Mary Grace Natividad S. Poe-Llamanzares v. Comelec, et. Al, GR Nos.221697-700, March 2016

Facts of the Case :

Sen. Grace Poe was found abandoned at a Parish Church at Jaro, Iloilo. She was registered as a foundling and issued a Foudling Certificate and later on adopted. When she reached the age of majority, she registered as a voter and voted. She let for the US to pursue her studies and got married. She became a naturalized American citizen in October 2001. On December 13, 2004 she came back to the Philippines for her late father, Fernandoe Poe Jr. After her father’s death she came back to the Philippines, secured a TIN , then her children followed suit, acquired property where she and her children resided.

On July 7, 2006 , after 5 years later when she acquired American citizenship through naturalization, she took her oath as a Filipino citizen pursuant to RA 9225, otherwise known as Citizenship Retention and Reacquisition Act of 2003. She filed a sworn petition for reacquisition of Philippine citizenship with the Bureau of Immigration. She likewise filed a petition for reacquisition of Filipino citizenship for and in behalf of her children which was granted. She registered as a voter,secured Philippine passport and appointed as the chair of MTRCB. Before she became the chair of the MTRCB , she executed an affidavit of renunciation of American Citizenship before the vice counsel of the USA and was issued a Certificate of Loss of Nationality of the USA

On October 15, 2015, she filed her COC for President and stated that she would a 10 years and 11 months resident of the Philippines before the May 2016 elections.

ISSUES :

1. Is Sen. Grace Poe , a natural born citizen of the Philippines ?

Held :

Yes. As a matter of law, foundling are a class, natural born citizen. While the 1935 Constitution ‘s enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either.

Other Provisions of Philippine law that would support the principle that foundlings are Filipinos

1. Domestic Laws – adoptee must be a Filipino in the first place to be adopted.

2. RA No. 8043 – An Act of Establishing the Rules to Govern the Inter-Country Adoption of Filipino Children.

3. Domestic Adoption Act of 1998

Two Conventions which grant citizenship to foundling, but not yet ratified by the Philippines

1. A child whose parents are both unknown shall have the nationality of the country of birth. If the childs parentage is established, the nationality should be determined by the rules applicable in cases where parentage is known.

2. A foundling is, until the contrary is proved, presumed to have been born on the territory of State in which it was found

ARTICLE 50

Chapter 3. Void and Voidable Marriages

Art. 35. The following marriages shall be void from the beginning:

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

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

By: Aguilba, Ray Dean F.

VOID MARRIAGES- it is invalid from the very beginning.

VOIDABLE MARRIAGES– Valid until annulled,it can be assailed collaterally in a process of proceeding and cannot be source of right.

BELOW 18 YEARS OF AGE

An individual below 18 years of age has no legal capacity to contract marriage. The consent of his or her parents is immaterial and it will not make the marriage valid.

BAD FAITH OR GOOD FAITH IN VOID MARRIAGES

As a general rule good faith and bad faith are immaterial in determining whether a marriage is null or void.

Example;

The woman believed in good faith that she married a man not related to her but who, in truth and in fact, was her long-lost brother, her good faith will not cure the infirmity even if she willingly and freely cohabited with him for the length of time after discovering the relationship. The marriage is void regardless of her good faith or bad faith, likewise if a person marries his/her first cousin conceals from his or her first cousin, the marriage is still void.

EXEMPTION TO THE RULE THAT GOOD FAITH AND BAD FAITH ARE NOT RELEVANT IN VOID MARRIAGES.

1. If a contracting parties is in good faith in believing that solemnizing officer has authority to solemnize a marriage though he or she actually NOT,the marriage will considered valid. Provided that the both parties completed the requirements and processed by the judicial authority. The good faith is clearly addressed to the contracting parties and not to the solemnizing officer.

2. If the spouse disappear for four years or two years the present spouse can validly marry again provided that;

3. has a well-founded belief that his/her spouse is dead;

4. Procures a judicial declaration of presumptive death;

5. At the time of subsequent marriage ceremony,is in good faith together with subsequent spouse.

COLLATERAL AND BAD FAITH ATTACK

G.R. No. 160172 February 13, 2008

REINEL ANTHONY B. DE CASTRO, petitioner,

vs.

ANNABELLE ASSIDAO-DE CASTRO, respondent.

Facts:

Annabelle and Reinel applied for a marriage license. However, when they went back to the Office of the Civil Registrar, the marriage license had already expired. Thus, in order to get married as soon as possible, they executed an Affidavit dated 13 March 1995 to show that they had been living together as husband and wife for the last five years, hence, exempt from the marriage license requirement. They got married on the same date before a judge. After the ceremony, however, they did not live together as husband and wife.

In November 1995, Annabelle gave birth to a child named Reinna Tricia.

In 1998, Annabelle filed a petition for support against Reinel, claiming that he had not given support to her and their child.

In his answer, Reinel denied that he is married to Annabelle, claiming that their marriage is void ab initio since the marriage was facilitated by a fake affidavit. He alleged that they never cohabited with each other five years before their marriage, hence they were not exempted from the requirement of a marriage license. He also denied being the father of Tricia.

The trial court ruled that the marriage between Annabelle and Reinel is not valid because it was solemnized without a marriage license. However, it declared Reinel as the natural father of the Tricia, and thus obliged to give her support. Reinel appealed.

The CA ruled that since the case is an action for support, it was improper for the trial court to declare the marriage of Annabelle and Reinel as null and void in the very same case. There was no participation of the State, through the prosecuting attorney or fiscal, to see to it that there is no collusion between the parties, as required by the Family Code in actions for declaration of nullity of a marriage. It also ruled that Tricia, having born during the subsistence of a marriage, is the legitimate child of Reinel.

Issues:

1. Has the trial court jurisdiction to determine the validity of the marriage between Reinel and Annabelle even though the case before it is for support? In other words, may the marriage be attacked collaterally?

2. Is the marriage between Reinel and Annabelle valid?

3. Is Reinna Tricia a legitimate child of Reinel?

Held:

1.) Yes. The validity of a void marriage may be collaterally attacked. In Nial v. Bayadog, we held:

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause on the basis of a final judgment declaring such previous marriage void in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage.

2.) No. The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The law dispenses with the marriage license requirement for a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The aim of this provision is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license. In the instant case, there was no scandalous cohabitation to protect; in fact, there was no cohabitation at all. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio.

3.) Reianna Tricia is an illegitimate daughter of Reinel, and therefore entitled to support.

Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. Thus, one can prove illegitimate filiation through the record of birth appearing in the civil register or a final judgment, an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned, or the open and continuous possession of the status of a legitimate child, or any other means allowed by the Rules of Court and special laws.

The Certificate of Live Birth of the child lists petitioner as the father. In addition, petitioner, in an affidavit waiving additional tax exemption in favor of respondent, admitted that he is the father of the child.

BIGAMOUS OR POLYGAMOUS MARRIAGES

BIGAMY – The act of marrying another person while still legally married to another.

POLYGAMY– Having multiple spouses at one time.

Article 51

When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercises their principal functions. (41a)
By: Austria, Honeylee B.

A private corporation may have been established by law, but its domicile has not been fixed.

It is understood that its domicile is where its legal representation in established or where they exercise its principal functions. If it exercises its principal function in Manila, that is its domicile.

FAMILY CODE OF THE PHILIPPINES

July 26, 1987- President Corazon C. Aquino singed Executive order No. 209 known as "The Civil Code of the Philippines, for the reasons;

WHEREAS, almost four decades have passed since the adoption of the Civil Code of the Philippines;

WHEREAS, there is a need to implement policies embodied in the new Constitution that strengthen the marriage and family as basic social institutions ans ensure equality between men and women.

July 17, 1987- President signed E.O. No. 277 amending Article 26,36 and 39 of the law.

October 20, 1989- R.A. No.6809 passed by Congress amending pertinent provisions of the law especially lowering the age of the majority from 21 to 18.

R.A. No. 8552- Amending provision on adoptions

R.A. No. 8533- Amending article 40, and eliminating the period to file an action declaring a void marriage.

R.A. No. 9552- allowing illegitimate children ti carry the surname of their parents under certain conditions.

Family Code took effect on August 3, 1988

Title I

MARRIAGE

Chapter I

Requisites of Marriage

ARTICLE 1

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

By:Cordero,Loida F.

DEFINITION OF TERMS

Aliunde – an evidence clarifying a document but not deriving from the document itself.

Rationale – a set of reasons or a logical basis for a course of action or a particular belief.

Filiation – the fact of being or of being designated the child of a particular parent or parents.

Presumption – a legal inference that must be made in light of certain facts. Most presumptions are rebuttable, meaning that they are rejected if proven to be false.

CONCEPT OF MARRIAGE

As a status, it is the civil status of one man and one woman legally united for life, with rights and duties which for the establishment of families and multiplication and education of the species are, or from time to time, may thereafter be assigned by law to matrimony.

As an act, it is an act by which a man and a woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife.

IMPORTANCE OF MARRIAGE

Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by State. Our Constitution clearly gives value to the sanctity of marriage.

CHARACTERISTICS OF MARRIAGE

The Supreme Court said that marriage is not just an adventure but a lifetime commitment.

NATURE OF MARRIAGE

The parties cannot fix a period for its efficacy to be ineffective after a few years for they are governed by law, however, may enter into an ante-nuptial agreement as to what property relationship shall govern them during the marriage.

HOW A MARRIAGE MAY BE PROVEN:

by the marriage certificate which is the best evidence

testimony by one of the parties to the marriage

testimony by one of the witnesses to the marriage

the person who officiated the solemnization

any competent and relevant evidence

In the absence of marriage certificate a marriage can be proven by:

evidence aliunde

like the fact that they have deported themselves to be married with children.

A person’s birth certificate may be recognized as competent evidence of the marriage between his parents.

Institution in a will

The Court said that a will can be considered as the testator talking if the will is submitted to probate, at the witness stand talking and admitting that he was married to the woman whom he instituted as his wife.

A will is the voice of a person even after his death, that is why, the law and jurisprudence give so much respect and credence to a will.

ARTICLE 2.

No marriage shall be valid, unless these essential requisites are present:

Legal capacity of the contracting parties who must be a male and a female; and

Consent freely given in the presence of the solemnizing officer

By:Cordero,Loida F.

ARTICLE 3.

The formal requisites of marriage are:

Authority of the solemnizing officer;

A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

By:Cordero,Loida F.

PRESUMPTION OF MARRIAGE FOR MAN AND WOMAN DEPORTING THEMSELVES TO BE MARRIED.

Maria Del Rosario Mariategui, Et Al vs. Hon. Court of Appeals, Jacinto Mariategui, Julian Mariategui and Paulina Mariategui

G.R. No. L-57062 January 24, 1992

Facts: Lupo Mariategui contracted three marriages during his lifetime. On his first wife, Eusebia Montellano, who died on November 8, 1904, he begot four children, Baldomera, Maria del Rosario, Urbana and Ireneo. With his second wife, Flaviana Montellano, he begot a daughter named Cresencia. And his third wife, Felipa Velasco, he begot three children, namely Jacinto, Julian and Paulina.

At the time of Lupo’s death he left certain properties with which he acquired when he was still unmarried. Lupo died without a will. Upon his death, descendants from his first and second marriages executed a deed of extrajudicial partition on Lot No. 163. However, the children on Lupo’s third marriage filed with the lower court an amended complaint claiming that they were deprive on the partition of Lot No. 163 which were owned by their common father. The petitioners, children on first and second marriage, filed a counterclaim to dismiss the said complaint. Trial court denied the motion to dismiss and also the complaint by the respondents, children on third marriage.

Respondents elevated the case on Court of Appeals on the ground that the trial court committed an error for not finding the third marriage to be lawfully married and also in holding respondents are not legitimate children of their said parents. Court of Appeals rendered a decision declaring all the children and descendants of Lupo, including the respondents, are entitled to equal shares of estate of their father. However, petitioners filed a motion for reconsideration of said decision.

Issue: Whether or not respondents were able to prove their succession rights over the said estate.

Ruling: With respect to the legal basis of private respondents’ demand for partition of the estate of Lupo Mariategui, the Court of Appeals aptly held that the private respondents are legitimate children of deceased.

Lupo Mariategui and Felipa Velasco were alleged to have been lawfully married in or about 1930. This fact is based on the declaration communicated by Lupo Mariategui to Jacinto who testified that “when his father was still living, he was able to mention to him that he and his mother were able to get married before a Justice of Peace of Taguig, Rizal.” The spouses deported themselves as husband and wife, and were known in the community to be such. Although no marriage certificate was introduced to this effect, no evidence was likewise offered to controvert these facts. Moreover, the mere fact that no record of the marriage exists does not invalidate the marriage, provided all requisites for its validity are present.

Under these circumstances, a marriage be presumed to have taken place between Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage; that a child born in lawful wedlock, there being no divorce, absolute of from bed and board is legitimate; and that things happened according to the ordinary course of nature and the ordinary habits of life.

Article 4.

The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45.

An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administrative liable. (n)

By: De Jesus, Camille T.

Chapter 3.

Void and Voidable Marriages

⬩ Aritcle 35 (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

⬩ If there is a total absence for one, the marriage is void.

⬩ If there is a defect or infirmity in one of the formal requisites, the marriage is not void.

Example:

If the license was issued without complying with the requirements of publication such marriage is valid, but the infirmity may cause the liabity of the public officer who issued the license.

Republic v. Liberty Albios, G.R. No. 198780, October 16, 2013, Mendoza, J

Facts: Liberty Albios contracted a marriage with Daniel Lee Fringer to acquire citizenship and agreed to pay him of $ 2,000. After the marriage, Fringer returned to the United States and she did not pay him the $ 2,000 because he did not petition for citizenship.

Both the RTC and CA ruled in favor of Albios declaring that the marriage was void ab initio for lack of consent. However, the Office of the Solicitor General (OSG) elevated the case to the Supreme Court, they states that the case do not fall within the concept of a marriage in jest as the parties intentionally consented to enter into a real and valid marriage.

ARTICLE 5
FAMILY CODE OF THE PHILIPPINES
TITLE I – MARRIAGE

(Maia Caireen R. Rosales-Ademe #6)

Any male or female of the age of eighteen years (18) or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage

RULES ON VALIDITY OF MARRIAGE

● The marriage is valid if there is consent of the parents

● If the parties to a marriage are below the ages of eighteen (18), even with the consent of their parents, the marriage would still be void

● Blood relationship between the contracting parties is impeded

● If a grandfather marries a granddaughter, the marriage is void because it is incestuous (improperly intimate)

● The impediments in Article 38 of the Family Code also make the marriage void by reason of public policy.

● Filipinos related within the fourth civil degree of consanguinity cannot marry in the Philippines

REASON FOR INVALIDITY IF BELOW 18 YEARS OF AGE

● Extreme youth may not lend stability to the marriage and the family

● Law requires some degree of maturity

ILLUSTRATION:

A and B, both 17 years of age, Filipino citizens, got married. The marriage is void because of lack of capacity to marry. This is true even if the marriage was celebrated abroad where the marriage was valid there as such. The reason is that, the capacity of Filipino citizens to marry is determined by Philippine law and not the law of the place where the marriage was celebrated. (See Art. 15, New Civil Code).

Suppose A in the problem above was 27 years old and B was only 17 years of age, the marriage would still be void because the law requires that both contracting parties must have legal capacity to contract marriage.

GENDER REQUIREMENT

The law requires that the parties to a marriage must be a male and a female for the establishment of conjugal and family life.

• “conjugal” and “family life” refers to reproduction of children as one of the purposes of marriage

“Article 68 of the Family Code mandates, among other things, that the husband and wife shall live together.”

MARRIAGE IS THE LICENSE TO HAVE SEX WITH ONE’S SPOUSE - If one spouse refuses to provide sex to the other, such refusal being constant and senseless, it can be said that he/she is refusing to perform his/her essential marital obligation.

Senseless and protracted refusal is equivalent to “psychological incapacity”.

TSOI v. CA

G.R. No. 119190, January 16, 1997,78 SCAD 57

TORRES, JR.,:

“Who is to blame when a marriage fails?”

This case was originally commenced by a distraught wife against her uncaring husband which decreed the annulment of the marriage on the ground of psychological incapacity. Petitioner appealed the decision of the trial court.

F A C T S :

Ø After CHI MING TSOI (defendant) and GINA LAO-TSOI (plaintiff) got married, they slept together on the same room for the first night of their marriage at the house of the defendant’s mother. There was no sexual intercourse happened between them during the first night. The same thing happened on the second, third, and fourth nights.

Ø In an effort to have their honeymoon in a private place, they went to Baguio, City. During their stay for 4 days, there was no sexual intercourse between them.

Ø The plaintiff claims that the defendant was impotent, and a closet homosexual , and only married her to maintain his residency status here in the Philippines.

Ø The defendant submitted himself to medical examination, and the result stated that there was no evidence of impotency and he is capable of erection and intercourse.

I S S U E :

Whether or not the refusal of the petitioner to have sex with his wife constitutes a Psychological Incapacity and therefore a ground for the annulment of their marriage

H E L D :

After the trial, the marriage was void.

It appears that there is absence of empathy between petitioner and private respondent. Marital union is a two-way process. Marriage is definitely not for children but for two consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution.

The law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68, Family Code)

>>>>

The defendant filed an instant petition. He contended that both of them constitutes psychological incapacity holding that both of them refused to have sex with each other.

RULING ON THE DEFENDANT’S PETITION:

The Court found the gravity of the failed relationship trapped in unfulfilled vows and unconsummated marital obligations. The defendant’s petition was denied due to lack of merit.

Article 8.

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

By: Guiang, Aprilyn M.

Why does the law require a public ceremony of the marriage?

This is one way of intervention by the State in order to ensure that if one knows of a legal impediment to the marriage, then he should manifest it to the solemnizing officer during the celebration. If there is one who manifests such legal impediment, the solemnizing officer would stop the ceremony.

Will the marriage be void if not solemnized publicly?

No, a violation of this code will not render the marriage void because publicity is not an essential requisite.

Even the law requires that the marriage ceremony be made public as it must be done publicly in the following;

a. chambers of the judge, or in open court

b. in the church, chapel or temple,

c. in the office of the consul-general, consul or vice-consul

d. if there is a written request of the parties that it be solemnized elsewhere in a sworn statement, the same can be done.

Even if there is no such request, or even if it is not in writing or it is not in a sworn statement, still the marriage is valid as such requisite is not an essential one.

Illustration

The marriage of A and B was solemnized by the mayor at the town plaza without any request and during the period of the political campaign

The marriage is valid provided that all the essential requisites are present.

Even if no request was made, it is still valid as the failure to comply with that formal requirement does not affect the validity of the marriage.

Article 9.

A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title.

By: Guiang, Aprilyn M.

The law requires that marriage license shall be issued in the place of habitual residence of the parties.

This is a formal requirement that a violation of the same does not render the marriage void. It is merely an irregularity which if committed may result in the liability of the Local Civil Registrar who issued it knowing that the applicants for a marriage license do not reside in the place where they applied for a license.

Illustration

A and B, both residents of San Pedro, Laguna, applied for and were issued a marriage license in Binan, Laguna.

It appears to be a violation of Article 9 of the Family Code, but since it is merely a formal requirement, the marriage would still be validly celebrated with the use of that license.

There is however, an exception to the rule, that is, when the marriage is one of exceptional character where there is no need for a marriage license.

Case:

EULOGIA BIGORNIA DE CARDENAS, plaintiff-appellee, vs. LEONCIO CARDENAS and FLORENCIA RIÑEN, defendants-appellants.

GR No. l-8218

padilla, j.:

Facts:

Eulogia Bigornia and Leoncio Cardenas were married at Malate, Manila on July 10, 1927 before Ministers George W. Wright and they lived together for sometime.

Evidenced presented was the original marriage contract and sworn affidavit of defendant Leoncio dated August 17, 1945 that he was legally married to Eulogia Bigornia

Without divorce, separation, dissolution or annulment of first marriage, Leoncio married again to Florencia Rinen at Ilocos Norte on April 19, 1948 before Justice the Peace Vicente R. Campos.

Eulogia filed a case to annul the marriage entered into by and between the defendants upon the ground that when said marriage was entered into on April 1948, she was still alive.

The Court rendered a judgment declaring the marriage between the defendant null and void ab initio. From the judgment the defendant appealed and they insist on their contention that there is nothing that shows that Minister George W. Wright had authority to solemnize the marriage between Leoncio and Eulogia.

Issues:

a. Whether or not the first marriage of Leoncio Cardenas is valid.

b. Whether or not the second marriage of Leoncio Cardenas is valid.

Held:

a. Yes. The marriage certificate attesting that a marriage ceremony was performed by a minister gives rise to the presumption that all legal formalities required by law had been complied with and the contracting parties believed in good faith that such solemnizing officer had such authority. It was called putative marriage. It was incumbent upon the defendants to show such lack of authority on the part of the minister.

b. No. The marriage of Leoncio Cardenas and Florencia Rinen was null and void ab initio, considering there has been no divorce, separation, dissolution or annulment of the marriage.

ARTICLE 10

Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul, or vice-Consul of the RP. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.

By: Ibanez, Jonathan M.

ARTICLE 11

Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following:

1. Full name of parties

2. Birthplace

3. Age and birthdate

4. Civil status

5. If previously married, how, when and where the marriage was dissolved.

6. Present residence and citizenship

7. Degree of relationship of parties

8. Full name, residence, citizenship of father

9. Full name, residence, citizenship of mother

10. Full name, residence, citizenship of guardian or person having charge, in case the parties has neither father nor mother and is under the age of 21 years.

The applicants, their parents or guardians shall not be required to exhibit their residence certificate in any formality in connection with securing the marriage license.

By: Ibanez, Jonathan M.

Article 12

The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality.

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age.

By: Gladys Agaid Lambayong

This article merely enumerates the requirements of the civil registrar of the contracting parties. These requirements are the original birth certificates or the baptismal certificates. In the absence of the original copies of the said documents, certified copies of which would suffice even without a documentary stamp. In the absence of the aforementioned original or certified documents, the parties may instead submit their current residence certificate or an instrument sworn before the local civil registrar. However, such would not be required if the parents of the contracting parties personally appear before the civil registrar to swear to the correctness of the ages of the parties, or if the local civil registrar is convinced by merely looking the parties that they are of the required ages.

Article 13

In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage.

In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse.

By: Gladys Agaid Lambayong

Just the same as the preceding article, article 13 also enumerates the requirements required by the contracting parties, but this time for parties where one of them is previously married. What is needed are the birth or baptismal certificate of the parties, and the death certificate of the deceased spouse or the judicial decree of divorce, or of annulment, or of nullity of the previous marriage. But in case of the absence of a death certificate, an affidavit stating the civil status of the contracting party and the name and date of death of deceased spouse.

Below is a case digest originally listed in Article 4 of the Family Code.

Sally Go-Bangayan v. Benjamin Bangayan, Jr.

GR No. 201061, July 3, 2013

Petitioner: Sally Go-Bangayan

Respondent: Benjamin Bangayan, Jr,

Ponente: Justice Carpio

This case was a petition for review assailing the decision and the resolution of the Court of Appeals.

FACTS:

Respondent alleged that he was married to Azucena Alegre on September 10, 1973, and they had three children.

In 1979, the respondent developed a romantic relationship with the petitioner. They lived together as husband and wife after Azucena left for the USA. The petitioner’s father was against their relationship. To appease the petitioner’s father, she brought the respondent to an office in Pasig City where they signed a purported marriage contract on March 7, 1982. Knowing that the respondent was still married to Azucena, the petitioner assured him that the marriage contract would not be registered. Their cohabitation produced two children. During their cohabitation, they acquired real properties.

However, their relationship ended when the petitioner left for Canada together with their two children. She filed criminal actions for bigamy and falsification of public documents against the respondent, using their simulated marriage contract as evidence. In turn, the respondent filed a petition for declaration of a non-existent marriage and/or declaration of nullity of marriage before the trial court on the ground that his marriage with the petitioner was bigamous and that it lacked the formal requisites to a valid marriage.

The trial court ruled in favor of the respondent. The purported marriage license no. N-07568 was not issued to them. It was ruled that the marriage was not recorded with the local civil registrar and the NSO because it could not be registered due to the respondent’s subsisting marriage to Azucena. It was ruled that bigamy was not committed because of the lack of a marriage license.

Petitioner filed a verified and vigorous motion for inhibition with motion for reconsideration but the trial court denied the motion. She appealed the decision before the Court of Appeals. CA ruled that the trial court did not err in declaring the respondent’s marriage to the petitioner null and void. Petitioner moved for reconsideration of the CA’s decision but was denied

ISSUE:

Whether the Court of Appeals committed a reversible error in affirming the trial court’s decision declaring the marriage between the petitioner and respondent null and void ab initio and non-existent.

RULINGS:

NO. The Court did not see inconsistency in finding the marriage between the respondent and petitioner null and void ab initio and, non-existent at the same time. Under Article 35 of the Family Code, a marriage solemnized without a license, except those covered by Article 34 where no license is necessary, "shall be void from the beginning." In this case, the marriage between Benjamin and Sally was solemnized without a license. It was duly established that no marriage license was issued to them and that Marriage License No. N-07568 did not match the marriage license numbers issued by the local civil registrar of Pasig City for the month of February 1982. Thus, the marriage was void ab initio according to Section 3 of the Family Code. The marriage between Benjamin and Sally was also non-existent. Applying the general rules on void or inexistent contracts under Article 1409 of the Civil Code, contracts which are absolutely simulated or fictitious are "inexistent and void from the beginning." Thus, the Court of Appeals did not err in sustaining the trial court’s ruling that the marriage between Benjamin and Sally was null and void ab initio and non-existent.

Article 14

In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between ages of eighteen and twenty-one, they shall in addition to the requirements of the preceding articles, exhibit to the local registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned.

Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both application for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications.

By: Meneses-Gapac, Xiennia B.

If the parties to the marriage are between 18-21 y/o, they must secure a written consent and/or an affidavit from their respective parents. Else, their marriage is voidable.

Minimum marriageable age: 18 y/o

The parties to the marriage must also secure a valid written consent and/or an affidavit from their respective parents.

If the parents consented and later it was found out that one of the parties or both of them were below the age of 18y/o, the marriage is void ab initio.

The law seeks to preserve the marriage bond
If A and B got married before a person who is not authorized to solemnize marriages but either or both believed in good faith that he could solemnize marriages, the marriage is valid.

If one of the parties was aware of the lack of authority of the solemnizing officer, he or she could not file an action for declaration of nullity of the marriage. He or she could not benefit of his own wrongdoing.

Article 15

Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor.

A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.

By: Meneses-Gapac, Xiennia B.

The law merely enumerates the contents of an application for marriage license (age, civil status)

If there is an impediment (e.g. age or civil status), the Civil Registrar will still issue the license but with a notation of the same.

The certificate of Annulment for previous marriage (if there is any), must be attached to the application as proof of his capacity to contract marriage.

Presentation of birth certificate

A Death certificate must be presented if one or either of the parties is a widow/widower (given that they are legally married before). If no Death Certificate, he/she may execute an affidavit setting forth his/her actual civil status and the name and date of death of the deceased spouse.

So if X and Y got married without the consent of their parents, is their marriage deemed to be invalid under the law?

No. Even if the parties failed to obtain their parents’ or guardian’s consent, their marriage is still considered as valid subject to the right of their parents or guardians to file for the annulment of their marriage within five (5) years from the celebration of the marriage. (Article 47 of the Family Code of the Philippines)

Arañes vs. Judge Occiano
AM No. MTJ-02-1390

Facts:

Mercedita Arañes filed charges against Judge Salvador Occiano of the Municipal Circuit Trial Court of Batalan, Camarines Sur with Gross Ignorance of Law. Occiano solemnized Arañes’ marriage without the requisite marriage license in latter’s house which is outside judge’s jurisdiction. Arañes was not able to claim her right to inherit his deceased husband’s property and she was deprived of receiving her husband’s pension. Occiano avers that the ceremony took place in Arañes’ house because the groom had a difficulty walking & he could not stand travelling.

Judge was aware that there was no marriage license but due to the pleas of the couple and everything was prepared already and the visitors were there, he agreed to solemnize the marriage. He reminded them that marriage won’t be valid without the license. They promised to give it within the day but they never did. Arañes desisted but Court still decided the case.

Issue:

Whether or not the marriage is valid

Ruling:

No. Judges can only solemnize marriage within their territorial jurisdiction.2. Marriage license is a requisite for marriage and without it, marriage is void. It is the marriage license that gives the solemnizing officer the authority to solemnize a marriage. And since there was no license, Occiano didn’t have the authority to officiate the ceremony. Judge Occiano fined P5,000.00.

Art. 16.

In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling.

Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application.

Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.

Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n)

By: Perolina, Nil Jay V.

The mere fact that the advice was not given and the marriage was solemnized does not make the marriage void. The formalities required by law must however be complied with.

The issuance of the marriage license even before the lapse of the 90-day period if no advice was granted does not make the marriage void. It is still valid, but criminal, civil or administrative sanctions may be imposed on the officer issuing the license.

Art. 17.

The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications.

The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public.

This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

By: Perolina, Nil Jay V.

After the receipt of the application for marriage license, the local civil registrar shall prepare a notice which shall be posted for at least ten (10) days at the bulletin board outside of his office in conspicuous places or even in places accessible to the public.

It calls upon anyone who has any knowledge of any legal impediment of either or both of the contracting parties to report to the local civil registrar.

This notice is one of the modes by which the State interferes in the marriage to prevent violations of the marriage law. It is noted, however, that if the local civil registrar does not publish the application and still, he issues the license, the marriage is still valid, because after all, publicity is not an essential requisite of marriage. The said public officer may, however, be held criminally or administratively liable.

Case:

A.M. No. MTJ-96-1088

Rodolfo Navarro v Judge Hernando C. Domagtoy

July 19, 1996 , 72 SCAD 328

ROMERO, J.

FACTS:

First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife.

Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte.

The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte.

Issue:

Whether or not marriage is void

Ruling:

No, the marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a subsisting marriage between Gaspar Tagadan and Ida Peñaranda.

The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month suspension and a stern warning that a repetition of the same or similar acts will be dealt with more severely.

Considering that one of the marriages in question resulted in a bigamous union and therefore void, and the other lacked the necessary authority of respondent judge, the Court adopts said recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a deeper understanding of the law.

Respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.

Article 18

In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a bond required for the issuance of the order.

By: Pomintel-Acuno, Florabel

Impediments refer to legal objections or hindrances to the making of a contract.

The completion of the period of publication in the above article is the posting of notice outside the local civil registrar’s office for 10 days.

Article 19

The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or their oath before the local civil registrar.

By: Pomintel-Acuno, Florabel

If the local civil registrar has knowledge of legal impediment of the parties or if one is brought to his knowledge by anyone, he would just note down the same in the application.

If there is a court order preventing for the issuance of the license, then, the registrar will not issue it.

Article 20

The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued.

By: Pomintel-Acuno, Florabel

The prescribe period in the license is mandatory because law declares the automatic cancellation upon expiration.

If the marriage is solemnized after 120 days from the date of the issuance, the marriage is void for lack of marriage license.

Marriage license is valid anywhere in the Philippines.

Case: Restituto M. Alcantara, Petitioner

Rosita A. Alcantara and Hon. Court of Appeals, Respondents

Citation: G.R. No. 167746

Date: August 28, 2007

Ponente: Chico-Nazario, C.J.

FACTS:

Petitioner submits that at the precise time that his marriage with the respondent was celebrated, there was no marriage license because he and respondent just went to the Manila City Hall on December 8, 1982 and dealt with a "fixer" who arranged everything for them. They got married the same day.

Marriage ceremony was held on March 26, 1983 at San Jose de Manuguit Church, still no marriage license was secured instead they presented the marriage contract of their civil wedding.

In 1988, they parted ways and lived separate lives. Hence, a petition for annulment of marriage against Rosita Alcantara was filed on February 14, 2000.

ISSUE:

Whether or not the marriage of the petitioner and respondent is valid without marriage license.

Whether or not the marriage is valid if the license number indicated in the certification and marriage contract is different

RULING:

Yes it is still valid.

The marriage contract reflects a marriage license number. Furthermore, a certification was also issued by the civil registrar of Carmona, Cavite. The Court still holds that there is no sufficient basis to annul petitioner and respondent’s marriage. Issuance of a marriage license in a city or municipality, not the residence of either of the contracting parties, and issuance of a marriage license despite the absence of publication or prior to the completion of the 10-day period for publication are considered mere irregularities that do not affect the validity of the marriage. An irregularity in any of the formal requisites of marriage does not affect its validity but the party or parties responsible for the irregularity are civilly, criminally and administratively liable.

On the issue of different license number in the marriage contract and the certification, yes the marriage is still valid.

It is presumed, that it is only a typographical error because the certificate is very precise in that it specifically identified the parties to whom the marriage license was issued. The marriage contract reveals the overlapping of the numbers 0 and 1, such that the marriage license may read either as 7054133 or 7054033.

Semper praesumitur pro matrimonio. The presumption is always in favor of the validity of the marriage.Every intendment of the law or fact leans toward the validity of the marriage bonds. The Courts look upon this presumption with great favor. It is not to be lightly repelled; on the contrary, the presumption is of great weight. Supreme Court affirmed the decision of the CA.

Article 21

When either or both the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.

Stateless persons are refugees from other countries shall in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a)

By: Rosales, Gayle Marion R.

The reason for the rule is that the capacity of foreigners to marry is determined by their personal law or national law. The certificate will ensure that foreigner is capacitated to marry.

The rule is that if they are allowed to marry under their national law, the marriage is valid except –

1. immoral, bigamous or polygamous marriages;

2. Immorally considered incestuous marriages

a. between ascendants and descendants of any degree, legitimate or illegitimate

b. collateral line, between brothers and sisters of the full or half-blood, whether the relationship be legitimate or illegitimate

ANNOTATION:

The marriage is still valid even without the said certificate of legal capacity. This is not one of the requirements of a valid marriage. It is a mere added requirement before a marriage license is issued. But if it turns out that the foreigner is not really capacitated, then, the marriage is not valid because of lack of capacity. A subsequent issuance of such certificate may be an evidence to declare such marriage void.

If a foreigner is a refugee or a stateless person, then a mere affidavit stating the circumstance of his legal capacity would be sufficient. The reason for the latter is obvious, as no diplomatic or consular official would issue such certificate.

ILLUSTRATION:

If A, a Filipino, would like to marry B, a foreigner, B should submit a certificate of legal capacity issued by the respective diplomatic or consular official of their country in order to contract a marriage.

If A, a Filipino, would like to marry B, a foreigner and refugee, B should submit an affidavit stating the circumstance of his legal capacity. Otherwise, the marriage is not valid because of lack of capacity.

G.R. No. 186571 August 11, 2010

GERBERT R. CORPUZ, Petitioner, vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL, Respondents

BRION, J.:

FACTS:

-Petitioner Gerbert Corpuz was a former Filipino citizen who acquired Canadian citizenship through naturalization. He married a Filipina. He later filed a petition for divorce for his first wife since he discovered that she was having an affair. This was granted. Two years after the divorce, Corpuz found another Filipina to love. He desired to marry her. So he registered the Canadian divorce decree in the Civil Registry Office. But he was informed that despite registration of the divorce decree, the marriage between him and his first wife subsists under Philippine law and for the divorce decree to be enforceable, it must first be judicially recognized by a competent Philippine court.

-Petitioner then filed for judicial recognition of foreign divorce and declaration of marriage as dissolved with the RTC. The RTC denied the petition on the basis that the petitioner lacked locus standi. Thus, petitioner directly appeals to the Supreme Court via a petition for review on certiorari under Rule 45 of the Rules of Court.

ISSUE:

Whether or not the Civil Registry Office acted out of line in registering the foreign divorce

RULING:

Yes. Article 407 of the Civil Code requires the entry in the civil registry of judicial decrees that produce legal consequences touching upon a person’s legal capacity and status. But while the law requires the entry of divorce decree in civil registry, the law and the submission of the decree by themselves do not ipso facto authorize the decree’s registration. The law should be read in relation with the requirement of the judicial recognition of the foreign judgment before it can be given res judicata effect.

Hence, the Civil Registry acted out of line when it registered foreign decree of divorce on the petitioner and the respondent’s marriage certificate without judicial order recognizing said decree. It is patently void and cannot produce any legal effect.

Article 22

The marriage certificate, in which the parties shall declare that they take each other as husband and wife shall so state:

1. The full name, sex, and age of each contracting party;

2. Their citizenship, religion and habitual residence

3. 3. The date and precise time of the celebration of marriage;

4. 4. That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title;

5. 5. That either or both the contracting parties have secured parental consent in appropriate cases;

6. 6. That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and

7. 7. That the parties have entered into a marriage settlement if any, attaching a copy thereof. (67a)

8. The law merely states the contents of the marriage certificate.

By: Rosales, Gayle Marion R.

Article 23

It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a)

By: Rosales, Gayle Marion R.

Continuing Articles on the Requisites of Marriage

Reported by DONA M. VALBUENA, #17

Article 24

It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed be exempt from documentary stamp tax.

Article 25

The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in the said book the names of the applicants, the date on which the marriage license was issued and such other data may be necessary.

Question: Does the non-recording of a marriage certificate (by the Local Civil Registrar) make it void?

G.R. No. 173540 - January 22, 2014

PEREGRINA MACUA VDA. DE AVENIDO, Petitioner,
vs.
TECLA HOYBIA AVENIDO, Respondent.

PEREZ, J.:

FACTS OF THE CASE

● Both women claiming to be validly married to Eustaquio Avenido. Respondent Tecla Hoybia Avenido (Tecla) instituted on 11 November 1998, a Complaint for Declaration of Nullity of Marriage against Peregrina Macua Vda. de Avenido (Peregrina) on the ground that she (Tecla) and Eustaquio were married on 30 September 1942 in Talibon, Bohol in rites officiated by the Parish Priest of the said town

● Peregrina and Eustaquio were also married, their marriage having been celebrated on 30 March 1979 at St. Jude Parish in Davao City

● Among the documentary evidence presented by Tecla was a Certification of Marriage between Eustaquio Sr., and Tecla issued by the Parish Priest of Talibon, Bohol on 30 September 1942 (Tecla was not in her possession a copy of their Marriage Certificate)

● On 25 March 2003, the RTC rendered a Decisiondenying Tecla’s petition for "DECLARATION OF NULLITY OF MARRIAGE", as well as Peregrina’s counter-claim.

● Tecla went to the Court of Appeals assigning the RTC’s error in disregarding her marriage to Eustaquio

● In its 31 August 2005 Decision, the CA ruled in favor of Tecla by declaring the validity of her marriage to Eustaquio, while pronouncing on the other hand, the marriage between Peregrina and Eustaquio to be bigamous, and thus, null and void

● Aggrieved Peregrina went to the Supreme Court

ISSUES

1. Whether or not the court can validly rely on the "presumption of marriage" to overturn the validity of a subsequent marriage;

2. Whether or not secondary evidence may be considered and/or taken cognizance of, without proof of the execution or existence and the cause of the unavailability of the best evidence, the original document; and

3. Whether or not a Certificate of Marriage issued by the church has a probative value to prove the existence of a valid marriage without the priest who issued the same being presented to the witness stand?

h HELD

●  Yes. There was a presumption of lawful marriage between Tecla and Eustaquio as they deported themselves as husband and wife and begot four (4) children. The presumption was supported by documentary evidence
●      The establishment of the fact of marriage was completed by the testimonies of Adelina, Climaco and Tecla;
●      The certifications of marriage issued by the parish priest of the Most Holy Trinity Cathedral of Talibon, Bohol was given probative value

Hence the Court DENIED the Petition and the assailed Decision of the Court of Appeals in CA-G.R. CV No. 79444 is AFFIRMED. The marriage between petitioner Peregrina Macua Avenido and the deceased Eustaquio Avenido is hereby declared NULL and VOID

Extra info: What is Local civil registrar (LRC)?

● Civil registry was instituted in Act 3753 approved by the Philippine Legislatures on November 26, 1930

● Civil Registrar – created under Section 3 of Act 3753 which provides that every municipality and cities shall have local civil registrars

● Duties of local civil registrar are under Section 4 of Act 3753 – the safekeeping and preservation of civil register books which shall have proper entries of birth and death register, marriage register, legitimation, acknowledgement, adoption change of name and naturalization register

ARTICLE 26

All Marriages solemnized outside the Philippines in accordance the laws in force in the country they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under the Philippine law. (As amended by E.O. No. 227)

By: Calano, Ernest Ryan

Articles 26, Par. 1 of the Family Code makes a cross-reference to Articles 35(1), (4), (5) and (6), 36, 37 and 38. All these laws refer to void marriages that even if they are valid where they were celebrated, still, they are void in the Philippines in view of the controlling rule that what determines the status, condition and legal capacity of Filipinos is Philippine Law (Article 15 NCC). If the marriage is void because of alack of legal capacity like when the parents or anyone of them is below 18 years, or if it is bigamous or polygamous, or where there was mistake in the identity of a party, or there was no recording of the documents under Articles 52 and 53 of the Family Code; or if one of the parties is suffering from “psychological incapacity’; or if the parties are related by blood under Article 37; or what is otherwise known as incestuous marriage, or if it is contrary to public policy, the marriage is still void even if valid where celebrated. This is so because the law that determines their validity is Philippine Law which binds them even though they are living abroad.

The second paragraph of Article 26 of the Family Code has cured the injustice under the old principles in the Civil Code for, while before, if a Filipina married a foreigner and the latter obtained a decree of divorce in his own country, the Filipina was still considered married because of Article 15 of the Civil Code mandated that she was still married since the law that governed her legal capacity and status was Philippine law. But such an injustice has been cured where the law now allows here to remarry.

Originally, the rule as contemplate by the framers of the Family Code is that, the marriage must be a mixed marriage, between a foreigner and a Filipino in order that Article 26 Paragraph 2 may apply and that it must have been mixed from the very beginning. This is the literal intention of the framers of the Family Code. If it was mixed after it was celebration, the law does not apply, It must be noted that the despise such intention of the framers of the Family Code, the Supreme Court ruled otherwise in Republic v. Orbecido III, October 5, 2005. It is also a requirement that the foreigner spouse shall initiate the divorce.

The rule in Paragraph 2, Article 26 of the Family Code impliedly recognizes the effect of divorce obtained in a foreign country but only in a limited sense. Such a recognition is merely intended to cure an injustice to a Filipino where after having been divorced by the foreigner spouse, he or she would still be considered married.

ALICE REYES VAN DORN, petitioner,

vs.

HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON respondents.

G.R. No. L-68470 October 8, 1985

MELENCIO-HERRERA, J.:

Petitioner Alice Reyes Van Dorn is a citizen of the Philippines while private respondent Richard Upton is a citizen of the United States. They were married in Hongkong in 1972 and established their residence in the Philippines. They begot two children born on April 4, 1973 and December 18, 1975, respectively. But the parties were divorced in Nevada, United States, in 1982 and the petitioner had remarried also in Nevada, this time to Theodore Van Dorn.

On July 8, 1983, Richard Upton filed a suit against petitioner, asking that Alice Van Dorn be ordered to render an accounting of her business in Ermita, Manila and be declared with right to manage the conjugal property.

Issue:

Whether or not the foreign divorce between the petitioner and private respondent in Nevada is binding in the Philippines where petitioner is a Filipino citizen.

Held:

As to Richard Upton, the divorce is binding on him as an American Citizen. Owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. The divorce is likewise valid as to the petitioner.

As such, pursuant to his national law, private respondent Richard Upton is no longer the husband of petitioner. He would have no standing to sue Alice Van Dorn to exercise control over conjugal assets. He was bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he did not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property.

FILIPINO INITIATING DIVORCE AGAINST A FOREIGNER SPOUSE

As can be gleaned from the law, effects of a foreign divorce are now recognized in the Philippines but subject to certain conditions. One such situation where the effects of a foreign divorce were recognized in the Pilapil v. Ibay-Somera, et. At., G.R. No. 80116, June 30, 1989, where it was said that when the foreigner divorced the Filipina, the marital relationship was severed. She can no longer be prosecuted for adultery if she cohabits with another man. A Filipina should not be discriminated against in her own country.

VALIDITY OF FOREIGN DIVORCE IN THE PHILIPPINES

Though Philippines does not have such divorce, it may be recognized by the Philippine law if it is validly obtained in the country where divorce was decreed. And divorced may be recognized in the Philippines by showing legal proof to the courts. Proving a foreign law, under which the divorce was secured is mandatory, considering that the Philippine court cannot and could not be expected to take judicial notice of foreign laws. For the purpose of establishing divorce as a fact, a copy of the divorce decree itself must be presented and admitted in evidence. This is in consonance with the rule that a foreign judgement may be given presumptive evidentiary value only after it is presented and admitted in evidence.

ASIDE FROM RECOGNITION OF DIVORCE DECREE, COURT CAN RULE ON CAPACITY OF THE FORMER SPOUSE TO REMARRY

Additionally, on action based on the second paragraph of Article 26 of the Family Code is not limited to the recognition of the foreign divorce decree. If the court finds that the decree capacitated the alien spouse to remarry, the courts can declare that the Filipino spouse is likewise capacitated t o contract another marriage. No jurisdiction, however, can make a similar declaration for the alien spouse (other than that already established by the decree), whose status and legal capacity are generally governed by his national law.

Following elements must concur in order for the said article to apply; (a) that there is a valid marriage celebrated between a Filipino citizen and a foreigner; and (b) that a valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. Article 26 (2) applies not only to cases where a foreigner was the one who procured a divorce of his/ her marriage to a Filipino spouse, but also to instances where, at the time of the celebration of the marriage, parties were Filipino citizens, but later on, one of them acquired foreign citizenship by naturalization, initiated a divorce proceeding, and obtained a favorable decree.

When the court recognized a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and property relation, it should not stop short in likewise acknowledging that one of the usual and necessary consequences of absolute divorce is the right to remarry.

BAD EFFECTS IF WE INTERPRET THE LAW STRICTLY.

A prohibitive view of Paragraph 2 of Article 26 would do more harm that good. If we disallow a Filipino citizen who initiated and obtained a foreign divorce from the coverage of Paragraph 2 of Article 26 and still require him or her to first avail of the existing “mechanisms” under the Family Code, any subsequent relationship that he or she would enter in the meantime shall be considered as illicit in the eyes of the Philippine law. Worse, any child born out of such “extramarital” affair has to suffer the stigma of being branded as illegitimate.

Article 27

In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives;

By: Laurente, Ivy M.

ILLUSTRATION

Article 27 talks about marriages in articulo mortis.

Assuming A and B are couples and lived together without legally solemnizing their relationship. A got sick and wanted to be legally married to B before he dies. Whether there is a marriage license or not, the marriage will be valid, since the marriage was performed at the point of death, it is considered that they have no enough time to accomplish all the necessary requisites.

Article 28

If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without the necessity of a marriage license;

By: Laurente, Ivy M.

ILLUSTRATION

Article 28 refers to the marriages done afar from the local civil registrar that the parties to the marriage cannot before him due to lack of transportation. A person who has the authority to solemnize marriage can solemnize it without the necessity of a marriage license, provided that he must take steps to ascertain the ages and relationships of the parties or that no legal impediment to marry one another exists.

Article 29

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

By: Laurente, Ivy M.

Article 29 provides the duties and things to be accomplished by the officer or any other legal person after a marriage was done under Article 27 and 28.

ARTICLE 33

MARRIAGES AMONG MUSLIM OR AMONG MEMBERS OF THE ETHNIC CULTURAL COMMUNITIES MAY BE PERFORMED VALIDITY WITHOUT THE NECESSITY OF MARRIAGE LICENSE, PROVIDED THEY ARE SOLEMNIZED ACCORDANCE WITH THEIR CUSTOM , RITES OR PRACTICES.

By: Abrigo, Mary Anne L.

Article 33 of the Family Code makes a a valid marriage of Muslims or members of ethnic cultural minorities even without a marriage license provided that – the ceremony is accordance with their customs, rights and practices.

If the marriage is between two (2) Muslims, who are residents of Manila and solemnized by a judge of Manila in accordance with Christian rites and practices, there is a need for marriage license, otherwise it is void. This is so because the condition for validity of such marriage without a license is that the same must be solemnized in accordance with their custom, rights and practices.

ARTICLE 34

NO LICENSE SHOULD BE NECESSARY FOR THE MARRIAGE OF A MAN AND A WOMAN WHO HAVE LIVED TOGETHER AS HUSBAND AND WIFE FOR AT LEAST 5 YEARS WITHOUT LEGAL IMPEDIMENT TO MARRY EACH OTHER. THE CONTRACTING PARTIES SHALL STATE THE FOREGOING FACTS IN AN AFFIDAVIT BEFORE ANY PERSON AUTHORIZED BY LAW TO ADMINISTER OATHS. THE SOLEMNIZING OFFICER SHALL ALSO STATE UNDER OATH THAT HE ASCERTAINED THE QUALIFICATION OF THE CONTRACTING PARTIES AND FOUND NO LEGAL IMPEDIMENT TO THE MARRIAGE.

By: Abrigo, Mary Anne L.

It dispenses with the requirement of marriage license where the parties have been living together as husband and wife without the benefit of marriage for a period of 5 years or even more. It further requires that there must be no legal impediment to marry one another during such coverture.

Illustration 1 :

A and B have been living together as husband and wife for 6 years. If they get married, then there is no need for a marriage license. In lieu of the marriage license, an affidavit stating that they have been living together for more than 5 years and without any legal impediment to marry one another is sufficient.

Suppose A was only 16 years old of age when they started living together and they would decide to get married, a license is required. They are not exempted from the requirement because of an impediment to marry one another

B AND C were MARRIED. C started living with A. C died on its 3rd year with A. Still there is no need for a license because of a legal impediment to marry one another during the co-habitation. If there is no license, the marriage is void.

Article 34 requires that a man and woman without marriage licence to be valid, they must have lived together and exclusively with each other for a continuous and unbroken period of at least 5 years before the marriage. The five-year common law cohabitation should be a period of legal union had it not been for the absence of marriage. This five-year period should be the years immediately before the day of marriage and it should be a cohabitation and characterized by exclusivity – meaning no third party was involved.

LEGAL RATIFICATION OF COHABITATION

1. The man and the woman must living in together for five years.

2. The parties have no legal impediment to marry each other.

3. The fact of absence in legal impediment between the parties must present at the time of marriage.

4. The parties must execute an affidavit stating that they have lived together for at least 5 years.

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage ( Borja-Manzano V. Judge Sanchez, 354 SCRA1

BORJA- MANZANO V. JUDGE SANCHEZ

354 SCRA 1, March 2001

Facts of the Case:

Complainant Herminia Borja-Manzano said and contest that she was the lawful wife of the late David Manzano and been married with four children from their marriage. However he found out that his husband was contracted another marriage and both parties were. Solemnized by the judge, the same having a contracted marriage and the latter will suffer bigamous and their vows will be void.

Respondent Judge claimed that when he officiated the marriage, he didn’t know that the husband was legally married. What he knew that the two was living together as husband and wife for seven years without the benefit of marriage as shown in their joint affidavit. Through the basis of the Joint Affidavit, the judge solemnized the marriage in accordance with Art 34 of the Family Code. According to the judge, had he known that the late Manzano was married he would have advised the latter not to marry again , other wise the husband could be charged with bigamy

ISSUE:

Whether or not the reason of the Judge in solemnizing the marriage is valid ?

HELD :

No. Article 34 states that “ No license shall be necessary for the marriage of a man and a woman who live together for at least five years without any legal impediment. The respondent judge cannot take refuge on the Joint Affidavit stating that they cohabiting as husband and wife for seven years. Just like separation for at least five years does not severe the tie of the previous marriage.

Article 36
A Marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligation of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

By: Austria,Honeylee B.

The Family code did not define the concept of psychological incapacity and intended to give elbow room for the courts to determine under what circumstances a person may be suffering from psychological incapacity.

Psychological incapacity- is the failure of a party to comply with the essential marital obligations of marriage which is psychologically or mentally rooted.

Characteristics of Psychological Incapacity:

a.Gravity- must be serious and grave

b.Judicial Antecedence- it existed upon or after the celebration of after the marriage.

c.Incurable

It is sufficient to be established by the totality of evidence presented that is related to the alleged psychological incapacity of one of the spouse of both of them.

Examination from an expert is not sine qua non to determine psychological incapacity especially if the totality of evidence already is sufficient.

Marital Obligations : Art 68-71,220, 221, 225 of the Family Code

Husband and wife are obliged to live together, observe mutual love, respect and fidelity and render mutual help and support. Fix their domicile. Jointly responsible for the support of the family, expenses and conjugal obligations. Management of the household. Having parental authority upon the person and property of the children

Church Tribunals declaring a marriage void based on Canon 1095 of the Code of Canon law , is not controlling or decisive, but can be given a great respect by the courts.

Other form of Psychoses:

At the time of the inception the party have an unsound mind, concealment of drug addiction, concealment of habitual alcoholism, concealment of homosexuality or concealment of lesbianism renders the marriage voidable (Art. 46 of the Family code)

During the marriage the party have an unsound mind, drug addiction,habitual alcoholism, homosexuality or lesbianism renders Legal Separation (Art. 45 of the Family Code)

Article 36 is not to be confused with divorce law that cuts marital bond at the time the causes therefore manifest.

Neither for Legal Separation, for it is rooted on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity and the like.

Examples of Psychological incapacity:

Histrionic Personality

Double insanity

Solicitor General is authorized to intervene in the proceedings for nullity and annulment of marriage in behalf of the State in CA or SC. Constitution seek to preserve and protect the sanctity of a family because it is primary social institution of the State and marriage is the foundation of a family. In RTC fiscal or prosecutor attorney can intervene in behalf of the State.

A person declared psychologically incapable can still remarry.

G.R. No. 236629

July 23, 2018

Republic of the Philippines v. Liberato P. Mola Cruz

Facts:

Respondent and Liezl was married on August 30, 2002 in Bacolod City. They started dating when Liezl's sister gave Liezl's number to the respondent and became textmates. At the beginning of their dating, Liezl was in Japan for 6 months as an entertainer while ther respondent is here in the Philippines. The Couple got married when Liezl returned home, then later moved to japan where Liezl again contracted as an entertainer and respondent worked as a construction worker.Respondent noticed changes in Liezl as she started going out without his permission, giving him the cold treatment and started getting angry for no reason. The couple returned to the Philippines after the release of Liezl for detention due to overstaying in Japan. Then Liezl confessed to the respondent that she had a romantic affair with a Japanese man but despite her confession it did not stop their illicit affair with the Japanese man. Her confession caused stress to the respondent as he was hospitalized.

Respondent expressed willingness to forgive her wife but Liezl chose to walk away from their marriage. The Respondent worked in Singapore and continued to woo her wife. He later found out that Liezl cohabited with her lover in their house. To the respondent's surprise Liezl introduced him to his lover as her brother. Respondent went along the charade because she threatened to leave their home. Liezl continued to work at a night club despite the respondent's offer her to start a business.

The Respondent filed a petition for declaration of nullity of marriage under Article 36.

RTC granted the respondent's petition and relied on the Psychological reports and testimony of an expert witness Dr. Pacita Tudla,a Clinical Psychologist. Dr. Tudla Found that Liezl was afflicted with histrionic behavior, a pervasive pattern of behavior characterized by excessive emotionality and attention seeking behavior.

Tends to be perceived by others as egotistical, unreliable and seeking immediate gratification.Dr. Tudla presented the following indicators of Liezl's disorder: going out without her husband's permission; coldly treating her husband verbally and sexually;quick anger at the slightest or no provocation at all;arrest in Japan for overstaying; admission to affair; insensitive towards her husband's feelings introducing him as a brother to her lover, nightlife with her friends; choosing to work at a night club instead of engaging a decent job. Dr. Tudla found that her disorder existed prior to the marriage because she grew up to be irritable, rebel when her demands where not met. The poor upbringing by her father resorting to corporal punishment and her mother tolerating her whims. Her incapacity is to grave and seriously impaired the discharge of her obligations of marriage. Dr. Tudla also stated that her disorder is incurable as it was ingrained in her personality and treatment would be ineffective because Liezl is unaware on her own disorder.

CA affirmed the decision of RTC.

Issue:

Whether or not Liezl's psychological incapacity to comply with her marital obligations was sufficiently established by the totality of evidence presented by the respondent.

Held:

Psychological incapacity pertains to the inability to understand the obligations of marriage as opposed to mere inability to comply with them. Psychological incapacity must be characterized by:

a.Gravity

b.Juridical Antecedence

c.Incurability

Article 36- A Marriage contracted by any party who, at the time of celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Both CA and RTC did not err in finding totality of evidence presented by respondent, sufficiently established link between the actions of Liezl showing her psychological incapacity to understand and perform her marital obligations and her histrionic disorder. Blatant insensitivity and lack of sanctity to the marital bond to her husband when she introduced him as a brother to her lover.

The severance of their marital vinculum will be better protect the state's interest to preserve the sanctity of marriage and family, the importance of which seems utterly lost on respondent.

WHEREFORE, the Petition is DENIED. The decision of CA is AFFIRMED.

ARTICLES 37-38

(Loida F. Cordero #4)

Incestuous- relation or marriages of persons who are closely related by blood in the direct line, whether legitimate or illegitimate.

Abhorrent- strong dislike or hatred, unacceptable.

Frowned- expression of disapproval

Article 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate:

Between ascendants and descendants of any degree; and

Between brothers and sisters, whether of the full or half blood.

Rules on incestuous marriages

1).The law declares void incestuous marriages. There are reasons, like:

Science and experience have established cavil that such intermarriages very often result in deficient and degenerate offspring, seriously deteriorating the race.

It is abhorrent to the nature of man, not only to civilized men but also to barbarous and semi-civilized people.

It tends to confuse rights incident to the family relations.

2).Incestuous marriages debase the family, violate morals and decency.

3).Brothers and sisters cannot marry, whether the relationship is that of full or half blood or legitimate or illegitimate. Even if they get married abroad and it is valid there, the same is also void.

Article 38. The following marriages shall be void from the beginning for reasons of public policy:

Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree or first cousins

Between step-parents and stepchildren

Between parents-in-law and children-in-law

Between the adopting parent and the adopted child

Between the surviving spouse of the adopting parent and the adopted child

Between the surviving spouse of the adopted child and the adopter

Between an adopted child and a legitimate child of the adopter

Between adopted children of the same adopter

Between parties when one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse

Void by reason of adoption

Illustration:

A and B are married. They adopted X. When A died, B and X wanted to get married. They cannot, otherwise, the marriage is void, as they have the relationship of adopting parent and adopted child

Even if A is single, he still cannot marry his adopted daughter by reason of public policy as the adopted child has the same rights as that of a legitimate child.

If X got married to Y and X would die. A cannot marry Y, the surviving spouse of X, since a surviving spouse of the adopted cannot marry the adopter.

Still the marriage is void if it is between the legitimate child of A and B and X, because X has been elevated to the status of a legitimate child. So, it is as if X and the legitimate child of A and B are brothers and sisters.

Suppose A and B adopted X and Y, still X and Y cannot get married because the law prohibits the marriage of both adopted children. They are elevated to the status of legitimates, hence, it is as if they are now brothers and sisters

Void by reason of intent to kill

Illustration:

A and B are married. A wants to marry X, so he killed his wife B. Thereafter, A married X. The marriage is void by reason of public policy. It is not only contrary to public policy, but it is also contrary to law to kill another

The rule is also applicable if, A would kill Y, the spouse of X

The law prohibits parties where one, with the intent to marry the other, killed the other person’s spouse or his or her own spouse.

If the killing is accidental, the law does not apply and the marriage is valid.

Article 39

The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by R.A. 8533)

By: De Jesus, Camille T.

⊳ If the marriage is void, an action for declaration of its nullity does not prescribe. A defense based thereon does not also prescribe.

⊳ Void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can be assail it but any proper interested party may attack a void marriage.

Amelia Garcia-Quiazon, et al. v. Ma. Lourdes Belen, GR. No. 189121, July 21, 2013

Facts:

⊳ Eliseo died intestate on 12 December 1992. Maria Lourdes Elise Quiazon (Elise), represented by her mother, Ma. Lourdes Belen (Lourdes), filed a Petition for Letters of Administration before the Regional Trial Court (RTC) of Las Piñas City. Elise claims that she is the natural child of Eliseo having been conceived and born at the time when her parents were both capacitated to marry each other. She impugned the validity of Eliseo’s marriage to Amelia by claiming that it was bigamous for having been contracted during the subsistence of the latter’s marriage with one Filipito Sandico (Filipito). To prove her filiation to the decedent, she attached her Certificate of Live Birth signed by Eliseo as her father and sought her appointment as administratrix of her late father’s estate.

Issue:

⊳ Did the Court err in declaring the marriage of Amelia to Eliseo void?

Ruling:

⊳ No. The Court ruled that the existence of a previous marriage between Amelia and Filipito was sufficiently established by no less than the Certificate of Marriage issued by the Diocese of Tarlac and signed by the officiating priest of the Parish of San Nicolas de Tolentino in Capas, Tarlac. The said marriage certificate is a competent evidence of marriage and the certification from the National Archive that no information relative to the said marriage exists does not

diminish the probative value of the entries therein.

Article 40

The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)

By: De Jesus, Camille T.

⊳ Even if the marriage is void, there is a need to have it declared void is because of the fact that the parties to the marriage cannot decide for themselves the invalidity of their marriage.

What Article 40 covers.

⊳ applies only to a situation where the previous marriage suffers from nullity while the second marriage does not.

⊳ what requires a judicial declaration of nullity is previous marriage, not the subsequent marriage.

⊳ does not apply to situation where is the first marriage does not suffer from any defect while the second if void.

Terre v. Terre, 211 SCRA 6, July 2, 1992

Facts:

⊳ Dorothy Terre was married to her alleged first cousin, Merlito Bercenillo. Jordan Terre, law student and single, successfully convinced Dorothy that her marriage was void ab initio for the reason of public policy and that they are free to contract marriage. In their marriage license, despite Dorothy’s objection, Jordan wrote “single” as her status, explaining that since her marriage was void ab initio. All through their married state, Dorothy supported Jordan aside from allowance from his parents. After getting Dorothy pregnant, Atty. Terre abandoned them and subsequently contracted another marriage to Helina Malicdem in 1986. Atty. Terre was charged with abandonment of minor and bigamy.

Issue:

⊳ Whether or not Atty. Terre’s marriage with Dorothy is null and void.

Ruling:

⊳ Yes, When the second marriage was entered into, respondent’s prior marriage with complainant was subsisting, no judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior marriage of respondent with complainant, thus her second marriage is void.

ARTICLES 41 – 42
FAMILY CODE OF THE PHILIPPINES

(Maia Caireen R.Rosales-Ademe #6)

ARTICLE 41.

A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, UNLESS before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

ARTICLE 42

The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, UNLESS there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

VALID BIGAMOUS MARRIAGE

Where a spouse has been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse is already dead

- this period has been reduced to two years if in the disappearance of the absent spouse, there is danger of death under the circumstances set forth in Article 391 of the Civil Code.

INSTANCES OF PRESUMPTIVE DEATH

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

2. A person in the armed forces who has taken part in war, and has been missing for four years;

3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.

MARRIAGE THAT IS VALID IN ART. 41.

1. The absent spouse must have been absent for four or two years under the circumstances provided by law;

2. The present spouse must not know the whereabouts of the absent spouse;

3. There must be a well-founded belief that the absent spouse is already dead;

4. There must be institution of a summary action for the declaration of presumptive death of the absent spouse;

5. There must be a final judgment declaring the absent spouse presumptively dead.

EFFECT OF DECLARATION OF PRESUMPTIVE DEATH

• The first marriage is not dissolved or terminated despite the declaration of presumptive death of the absent spouse, except if it has been previously annulled or declared void

• If the reappearance of the absent spouse is not proven, it would remain to be valid. The registration of the affidavit of reappearance is merely a presumptive notice of reappearance which is disputable.

QUESTION:

1. Suppose, there is no affidavit of reappearance registered but the absent spouse personally or physically appears, would the second marriage be terminated?

- Yes. The registration of an affidavit of reappearance is a mere notice of reappearance, disputable in character.

2. But if the absent spouse appears physically, then, how can the present spouse dispute it?

- The mere registration of an affidavit of reappearance terminates the subsequent marriage, then, with more reason if he/she personally reappears.

FOUR REQUISITES FOR THE DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY CODE:

1. That the absentee spouse has been missing for four consecutive years, or two consecutive years, if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the deceased.

“Article 83 of the Civil Code merely requires that there be no news that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code”

“Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.”

- - The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened

Reasons why there is a need for the absent spouse to be declared presumptively dead before the present spouse may contract a subsequent marriage:

The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible.

Republic vs. CA, et al.

G.R. No. 159614, December 9, 2005

(Callejo, J.)

FACTS:

· Alan B. Alegro filed a petition for the declaration of presumptive death of his wife, Rosalia (Lea) A. Julaton.

· Lea arrived home late in the evening and he berated her for being always out of their house. He told her that if she enjoyed the life of a single person, it would be better for her to go back to her parents. When he arrived home later in the day, Lea was nowhere to be found. Lea did not return to their house anymore.

· He went to the house of Lea’s parents to see if she was there, but he was told that she was not there. He also went to the house of Lea’s friend, but he was informed that Lea’s friend had left for Manila. Alan sought the help of Barangay Captain Juan Magat, who promised to help him locate his wife. He also inquired from his friends of Lea’s whereabouts but to no avail.

· Alan reported Lea’s disappearance to the local police station and to the National Bureau of Investigation (NBI) on July 9, 2001.

· He filed a petition to declare her presumptively dead. After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor General adduced evidence in opposition to the petition.

· The court rendered judgment granting the petition, declaring Rosalia presumptively death for the purpose of Alan’s subsequent marriage.

· The OSG appealed the decision to the Court of Appeals which affirmed the decision of the RTC. The OSG filed a petition for review on certiorari of the CA’s decision alleging that Alan failed to prove that he had a well-founded belief that Lea was already dead, alleging that he failed to exercise reasonable and diligent efforts to locate his wife.

ISSUES:

1. 1. Whether or not the petition is without merit.

2. 2. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse.

HELD:

The petition is meritorious. Under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

In sum, the Court finds and so holds that the respondent failed to prove that he had a well-founded belief, before he filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton was already dead.

The petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 73749 is REVERSED and SET ASIDE.

Article 43

The Termination of the subsequent marriage referred to in the preceding article shall produce the following effects:

1. The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the Court spouse by testate or interstate succession.

2. The absolute community property of the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted the said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in the favor of the common children, or if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;

3.Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donation made to said donee are revoked by operation of law;

4. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designations be stipulated as irrevocable;

5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate or interstate succession.

By: Austria,Honeylee B.

Paragraph 1 recognizes the fact that even there is a prior existing marriage, children born or conceived of the subsequent marriage are legitimate.

Paragraph 2 recognizes the validity of the subsequent marriage and existence of a property relationship in the second marriage.The spouse who contracted the marriage in bad faith shall forfeited in favor of 1) common children 2) absence of children, the children of the guilty spouse 3) default of the latter, to the innocent spouse

Paragraph 3 emphasize the effect if one of the spouse contracted the marriage in bad faith the donations the donations made to the donee are revoked by operation of law.

The donor need not go to court to effect the revocation of the donation. The effect of revocation is that the property shall be reverted to the donor.

Paragraph 4 gives the innocent spouse the right to revoke the designation of an insurance beneficiary even if the insurance policy states that it is not revocable. Bad faith does not entitle the guilty spouse the benefit of such designation.

Paragraph 5 states the disqualification to inherit, the designation of insurance as well as the donation to the spouse in bad faith. No one would be enriching himself at the expense of the innocent spouse.

Article 44

If both spouses of the subsequent marriage acted in bad faith, the said marriage be viod ab initio and all donations by reasons of marriage and testamentary dispositions made by one in far of the other are revoked by operation of law.

By: Austria,Honeylee B.

Reference to the subsequent marriage after the declaration of presumptive death of the absent spouse.If the spouse knew the whereabouts of the absent spouse yet she still filed for the declaration of presumptive death, he/she is in bad faith.

There is not need to perform the positive act of revocation. The law itself revokes the same, with the net effect of these donations or testamentary dispositions being rendered void and the properties being reverted to the former owner.

Eduardo Manuel v. People

GR no. 165824, November 29, 2005

Callejo, Sr J:

Facts:

Eduardo Manuel was previously was married to Rubylus Gaia Without the marriage having been dissolved contracted another marriage with Tina Gandelara-Manuel without her knowing the existence of the first marraige of Eduardo to Rubylus. Eduardo met Tina in Dagupan City as a 21 year old living in Bonuan, Dagupan City while Eduardo was 39. Eduardo proposed to her and assuring that he was single and even assured by Eduardo's parents that Eduardo is single. They got married on April 22, 1996 before Judge Antonio C. Reyes.In the year 1999, Manuel started making himself scarce and only went to their house twice or thrice a year 2001 Eduardo took all his clothes, did not return and stopped giving financial support.

Tina became curious and made inquiries from NSO and learned that Eduardo was in fact already married when they exchanged their own vows.

Eduardo contended that he declared that he was single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid and he did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

RTC found Eduardo Guilty beyond reasonable doubt of bigamy.CA modified the indeterminae penalty and affirmed in all other aspects.

Issue:

Whether on not Eduardo should be convicted of Bigamy provided that her previous marriage is still subsisting.

Held:

The SC found Eduardo Guilty, even though be believed in good faith that his previous marriage is void because he did not hear anything from Rubylus in the last 20 years. He failed to file to the court a Declaration of presumptive death of his Wife Rubylus before contracting marriage to Tina.

The petition was denied for lack of merit. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.The prosecution proved that Eduardo and Rubylus and was not judicially declared a nullity, hence the marriage still subsist. Ignorance of the law excuses no one form compliance therewith. It is a burden of the petitioner to prove his defense that when he married the Tina in 1996 he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years.he should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife. However he failed to discharge his burden.

SC Affirmed the decision of CA.

Article 45.

A marriage may be annulled for any of the following causes, existing at the time of the marriage:

1. That the party in whose behalf it is the sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardians or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

2. That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

3. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

4. That the consent of either party was obtained by the force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

5. That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

6. That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)

By: Guiang, Aprilyn M.

The law refers to voidable marriages which are valid until they are annulled. They may suffer from some infirmities but they can even be ratified.

Voidable Marriage can be cured or cleansed by the act of parties of freely cohabiting with one another.

Paragraph 1 of Article 45

Voidable marriage

● Contracted between persons at the ages 18 years but below 21years of age

● Without the consent of parents or guardians

Rules on annulment

● If it is the party who would file the action it must be done within five (5) years after attaining the age of twenty-one (21). (Art. 47. Family Code)

● If it is the parents or guardian who would file, then, it should be done at any time before the party reaches the age of twenty-one (21)

Paragraph 2 of Article 45

Voidable marriage

● Insanity

Rules on annulment

● It must be filed at any time before the death of either party

● By the insane spouse, during a lucid interval or after gaining sanity

● It may be filed by the same spouse, who had no knowledge of the insane’s insanity or by any relative or guardian or person having charge of the insane

Paragraph 3 and 4 of Article 45

Voidable marriage

● Fraud, intimidation, or undue influence

Rules on annulment

● It must be filed within five (5) years from the discovery of fraud, or from the time the force, intimidation, or undue influence has disappeared or ceased

Paragraph 5 of Article 45

Voidable marriage

● Physically incapable of consummating the marriage with the other

● Incapacity continues and appears to be incurable

Rules on annulment

● It refers to impotency and not sterility.

● Test of Impotence is not the capacity to reproduce, but the capacity to copulate

● Sterility is not ground for annulment because he/she can still perform acts of copulation

Case:

Felix Sarao v. Pilar Guevarra

GR No. 47063; 40 OG 263

Facts:

Felix Sarao and Pilar Guevarra were married in Manila on June 3, 1936. On Afternoon on the same day, when Sarao tried to have a coitus with Guevarra, she refused and begged to wait until evening. However, when night came and tried to have act with her, she complained of pains in her private part and even noticed foul smell coming out from her genitals. Every attempt was a failure because his wife complained of pains in her genitals, and he did not want his wife to suffer.

Upon advice of a doctor, and with the plaintiff’s consent, the defendant submitted to an operation on August 7, 1936, and which the uterus and ovaries were removed. This rendered her incapable of procreation; nevertheless, she could copulate. Plaintiff, however, since witnessing the operation of his wife, lost all desires to have access to his wife, hence, he asked for annulment of marriage.

Issue:

Can Sarao’s claim prosper?

Held:

No, The annulment cannot be granted. The incapacity for copulation was only temporary. The defect must be lasting to be a ground for annulment. The supervening sterility of the wife is not a ground for annulment because the test of impotence is not the capacity to reproduce, but the capacity to copulate.

Article 46.

Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

2. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

3. Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of marriage;

4. Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)

By: Guiang, Aprilyn M.

The grounds for annulment of the marriage must be existing at the time of marriage. The law speaks of concealment and non-disclosure, hence, very clearly, the grounds must be already existing at the time of the celebration of the marriage.

Grounds for annulment

➔ Non disclosure of conviction of a crime involving moral turpitude where the penalty is more than six years imprisonment.

Rules : Judgment must be final

Reason : social humiliation and moral suffering endured by the innocent spouse

➔ Concealment by the wife of the fact of pregnancy by a man other than her husband

Rules : Pregnant at the time of marriage by a man other than her husband

Reason : To prevent a stranger from intruding into the successional rights of the husband

Concealment of premarital sex by the wife however, is not a ground for legal separation in view of the fact that the law says that no other misrepresentation or deceit as to character or chastity shall constitute such fraud as will give grounds for action for annulment of the marriage. The same rule is applicable to the man who may have hidden from his spouse the act of premarital sex with other women before he got married. What is the fraudulent is the concealed pregnancy

➔ Concealment of a sexually-transmissible disease, regardless of nature

➔ Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism

Rules : Existing at the time of marriage

Not Grounds for Annulment

● Character

● Health

● Rank

● Fortune

● Chastity

Case:

Aurora A. Anaya v. Fernando O Palaroan

G.R. No. L-27930, November 26, 1970

Reyes, J.B.L., J.:

Facts:

Aurora Anaya and Fernando Palaroan were married on December 4, 1953. Thereafter, on January 7, 1954, the defendant filed an action of annulment of the marriage on the ground of force or intimidation. However, the CFI (now RTC) dismissed the case, upholding the validity of the marriage and granted the plaintiff's counterclaim.

However, while a counterclaim was being negotiated to settle the judgement, plaintiff herein prayed for the annulment of marriage and for moral damages alleging that Fernando had divulged to her the fact that several months prior to the marriage, he had premarital relationship with a close relatives of his and that the non-divulgement of such to her had definitely wrecked their marriage; that the frank disclosure of which, certitude precisely her from giving her consent to the marriage and therefore, it constitutes fraud as contemplated in No.4 of Article 85, New Civil Code in relation to Article 86, New Civil Code (Now Article 46, Family Code)

Issue:

Whether or not the non-disclosure to a wife by her husband of his pre-marital relationship with another woman is a ground for the annulment of marriage.

Held:

No, non-disclosure to a wife by her husband of his pre-marital relationship with another woman is not a ground for the annulment of marriage.

For Fraud as a ground for the annulment of marriage, it is limited exclusively by law referring to non-disclosure of a previous conviction involving moral turpitude and concealment pregnancy.

Article 46, last paragraph stated that no other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

A man having pre-marital sex with other women before he got married is not ground for the annulment of marriage.

Article 47.

The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had no knowledge of the other’s insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45 by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;

(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)

By: Ibanez, Jonathan M.

The law enumerates the persons who may file an action for the annulment of marriage and the periods within which the action must be filed. If the actions are not filed within the periods prescribed by law, the same would prescribe.

Article 48.

In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a)

By: Ibanez, Jonathan M.

Reason for the law. The intention of the law is clear, that is to preserve the marriage. The State has interest in the marriage as the foundation of the family, that is why, it is required that in cases of annulment or declaration of nullity of marriage, the prosecutor or fiscal assigned to the court where the case is pending must appear on behalf of the State to see to it that there would be no collusion between the spouses or see to it that the evidence is not fabricated. This law emphasizes the fact that marriage is not a mere contract but an inviolable social institution. If the fiscal or prosecutor finds collusion or fabrication of the evidence during the trial, he can move for the dismissal of the case. In fact, the law even prohibits the rendition of judgment based on stipulation of facts or confession of judgement. As said elsewhere, the nature, consequence and incidents of marriage are determined by law and not subject to stipulations. The requirement that the court shall order the prosecuting attorney to appear is intended to prevent annulment of marriage in cases where no ground therefor really exists. The Court should proceed with the greatest vigilance and care, not only to prevent fraud and collusion by the parties, but also to guard against an honest mistake under which they may be acting. (Capistrano, Civil Code of the Phils., 1950 ed., p. 105).

No default in annulment of marriage.

Well-entrenched in Philippine law is the rule that a party in action for the annulment of marriage cannot be declared in default. This is so because the granting of annulment of marriage or declaration of nullity of the same by default is fraught with danger of collusion. The collusion is suspected when the defendant, despite the service of summons, does not file an answer or contest the action, hence, the duty of the court to order the prosecutor to appear to prevent collusion between the parties and to take care that the evidence to be presented is not fabricated. The reason for the law is obvious from the policy that marriage is not a mere contract, but an inviolable social institution in which the State is virtually interested because the State finds no strong anchor than on good, solid and happy families.

Tuason vs. CA, et al. G.R. No. 116607, April 10, 1996 70 SCAD 132

Facts:

A and B got married. During the first 10 years of the marriage, they were a normal and happy couple and begot two children. Due to violent fights, suspected acts of infidelity and drug addiction on both sides and extreme animosities, B filed a complaint for declaration of nullity of her marriage. She alleged that A was already suffering from “psychological incapacity” at the time of the marriage, incapacitating him to comply with essential marital obligations which have become manifest only after the marriage. A answered and denied all the imputations against him. Instead, he accused B as the one guilty of infidelity and their personal differences started when B did not accord him the respect and dignity due him as a husband. B presented four witnesses, while A participated in the proceedings through counsel. After B rested her case, A moved for the postponement of the hearing for the presentation of his evidence, which was granted. On the scheduled hearing, he again failed to appear. His lawyer did not appear too, hence, the trial court issued an order declaring A as having waived his right to present evidence. The case was decided for B. After the judgment became final due to his failure to appear, and after two (2) months, A filed a petition to set aside the judgment contending that when he failed to appear, the trial court should have ordered the prosecuting officer to intervene for the State and inquired as to the reason for his non-appearance instead of forfeiting his right to present evidence, invoking Article 48 of the Family Code.

Held:

Article 48 of the Family Code is inapplicable. For one, A was not declared in default by the trial court for failure to answer. He filed his answer to the complaint and contested the cause of action alleged by B. He actively participated in the proceedings by filing several pleadings and cross-examining the witnesses of B. It is crystal clear that every stage of the proceeding was characterized by a no-holds-barred contest and not by collusion. The role of the prosecuting attorney or fiscal in the annulment of marriage is to determine whether collusion exists between the parties and take care that the evidence is not suppressed or fabricated. A’s vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. Neither was there any allegation by A that evidence was suppressed or fabricated by any of the parties. Hence, the non-intervention of the prosecuting attorney was not fatal to the validity of the proceedings in the trial court. (See also Pacete vs. Carriaga, 231 SCRA 321; Macias vs. Judge Ochotorena, July 30, 2004).

The Solicitor General is authorized to intervene in proceedings for nullity and annulment of marriages.

No less than the Constitution seeks to preserve the sanctity of the marriage. The reason is that, marriage is the foundation of the family and the family is the foundation of society. That is why, the law on marriage is restrictive. Even if there is no answer of the defendant in actions for declaration of nullity of marriage or annulment thereof or even in legal separation, there is an inherent opponent, the State. That is why, more often than not parties would question the appearance of the State through the Solicitor General in such proceedings. The reason why the State intervenes is to protect its interest in the marriage.

In a case, it was argued that only the prosecuting attorney or fiscal may intervene on behalf the State in proceedings for annulment or nullity of marriage, hence, the Solicitor General has no personality to appear. The Supreme Court brushed aside such contention and ruled:

“That Article 48 does not expressly mention the Solicitor General does not bar him or his Office from intervening in proceedings for annulment or declaration of nullity of marriages. Executive Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor General as the principal law officer and legal defender of the Government. His Office is tasked to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers.”

“The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence and, bearing in mind that the Solicitor General is the principal law officer and legal defender of the land, then his intervention in such proceedings could only serve and contribute to the realization of such intent, rather than thwart it.”

“Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend actions on behalf of the People of Republic of the Philippines once the case is brought before the Court or the Court of Appeals. (Metrobank vs. Tonda, 338 SCRA 254 [2000]). While it is the prosecuting attorney or fiscal who actively participates, on behalf of the State, in a proceeding for annulment or declaration of nullity of marriage before the RTC, the Office of the Solicitor General takes over when the case is elevated to the Court of Appeals or the Supreme Court. Since it shall be eventually responsible for taking the case to the appellate courts when circumstances demand, then it is only reasonable and practical that even while the proceeding is still being held before the RTC, the Office of the Solicitor General can already exercise supervision and control over the conduct of the prosecuting attorney or fiscal therein to better guarantee the protection of the interests of the State.”

In fact, the Court had already recognized and affirmed the role of the Solicitor General in several cases for annulment and declaration of nullity of marriages that were appealed before it, summarized as follows in the case of Ancheta vs. Ancheta:

In the case of Republic vs. CA, 268 SCRA 198 (1997), the Court laid down the guidelines in the interpretation and application of Article 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State:

“The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.” (Id., at 213).

The Court in the case of Malcampo-Sin vs. Sin, 355 SCRA 285 (2001), reiterated its pronouncement in Republic vs. CA, supra., regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State.

Finally, the issuance of the Court of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, which became effective on March 15, 2003, should dispel any other doubts of respondent Crasus as to the authority of the Solicitor General to file the instant Petition on behalf of the State. The Rule recognizes the authority of the Solicitor General to intervene and take part in the proceedings for annulment and declaration of nullity of marriages before the RTC and on appeal to higher courts. The pertinent provisions of the said Rule are reproduced below ––

Sec. 5. Contents and form of petition. ––

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. . . . .

Sec. 18. Memorandum. –– The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action the dispositive part of the decision shall be published once in a newspaper of general circulation.

(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General.

(2) Notice of Appeal. –– An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. (Rep. vs. Crasus Iyoy, G.R. No. 152577, September 21, 2005).

Article 49

During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall provide for appropriate visitation rights of the other parent.

By: Gladys Agaid Lambayong

During the pendency of an action of annulment or nullity of marriage, the Court shall:

1. Provide for the support of the children and the spouse;

- To provide support for the spouse is a recognition of the fact that the spouses still have a duty to support one another.

- To provide support for children is a duty of the parents. This is anchored with the principle that the best interest of the children is of utmost importance

2. Provide for the custody of the common children;

- The rule is, a child below seven years old cannot be separated from his mother, except if there is a compelling reason to separate the child from the mother. A child of seven or above years old has the right to choose between his parents whom he wants to stay with. But this rule is still covered with the principle that the best interest of the child is of paramount importance, thus the court may give custody to the other parent for compelling reasons.

3. Give paramount consideration to the moral and material welfare of the children and their choice of the parent with whom they want to remain;

- The Court ruled that in all cases, involving the custody, care, education and property of the children, the latter’s welfare is paramount. Below is case in relation to this provision:

4. Provide for appropriate visitation rights of the parent.

- This provision is true if the custody of the child is awarded to one of the parents. In cases of disagreement on visitation rights, it is incumbent upon the Court to provide for the same in the judgement annulling the marriage or declaring the marriage void.

5. This provision is true if the custody of the child is awarded to one of the parents. In cases of disagreement on visitation rights, it is incumbent upon the Court to provide for the same in the judgement annulling the marriage or declaring the marriage void.

Cervantes v. Fajardo

G.R. No. 79955, January 27, 1989

Petitioners: Spouses Nelson L. Cervantes and Zenaida Carreon Cervantes

Respondents: Gina Carreon Fajardo and Conrado Fajardo

Ponente: Justice Padilla

This was a petition for writ of Habeas Corpus filed against the respondents over the person of the minor, Angelie Anne Cervantes.

FACTS:

Minor, Angelie, was the daughter of the petitioners who were common-law husband and wife. Respondents offered the child for adoption to petitioners who took the care and custody of the child when she was barely two weeks old. Respondent Gina executed an affidavit of consent to the adoption of the child by the petitioners. On August 20, 1987, RTC of Rizal granted the petition of adoption, ordering the child be freed from parental authority of her natural parents as well as from legal obligation and maintenance to them, and that henceforth, be known as Angelie Anne Cervantes, a child of herein petitioners and capable of inheriting their estate.

In March or April, 1987, respondents demanded an amount of Php150,000 from the petitioners, otherwise, they would get back their child. Petitioners refused to give in to the demand. Consequently, respondent Gina took the child from the petitioners’ residence. She refused to return the child when the petitioners demanded her to do so. She stated that she had no desire to give up her child for adoption and that the affidavit of consent to the adoption was not fully explained to her. However, she would return the child if the petitioners paid her the amount of Php150,000.

ISSUE:

Whether or not the adoptive parents have rightful custody over the minor child.

RULING:

YES. The Court held that the minor had been legally adopted with the full knowledge and consent of respondents. A decree of adoption had the effect, among others, of dissolving the authority vested in natural parents over the adopted child, except where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental authority over the adopted shall be exercised jointly by both spouses. The adopting parents have the right to the care and custody of the adopted child and exercise parental authority and responsibility over him.

In all cases involving the custody, care, education and property of children, the latter's welfare is paramount. The provision that no mother shall be separated from a child under five (5) years of age, will not apply where the Court finds compelling reasons to rule otherwise. In all controversies regarding the custody of minors, the foremost consideration is the moral, physical and social welfare of the child concerned, taking into account the resources and moral as well as social standing of the contending parents. Never has the Court deviated from this criterion. In the present case, respondent Conrado was legally married to another woman other than respondent Gina. This open cohabitation will not accord the minor desirable atmosphere where she can grow and develop into an upright and moral-minded person. Additionally, respondent Gina had also given birth to another child by another married man. For a minor to grow up with a different father could also affect the moral outlook and the values of the minor.

Article 50

The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.

The final judgement in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

By: Gladys Agaid Lambayong

Absolute Community versus Conjugal Partnership of Gains

Under the regime of absolute community property, all properties owned by the spouses before the marriage and those that they acquire during the marriage shall form part of the absolute community and is shared equally by husband and wife (Article 91, Family Code). On the other hand, under the regime of conjugal partnership of gains, only those properties acquired during the marriage through the efforts or industry of either or both spouses as well as the income or fruits of their exclusive properties that accrue during the marriage will comprise the conjugal partnership (Article 106, Family Code).

The case of Eric Jonathan Yu v. Caroline T. Yu, G.R. No. 164915, March 10, 2006, explained the second provision of Article 50. Pending the action for declaration of nullity of marriage, the issue on the custody and support of the common children is necessarily decided. The custody issue is merely an incidental to the main action, the nullity of marriage. The exception to this provision is when such matters had been previously adjudicated in previous judicial proceedings. In such cases, the principle of res judicata applies. It cannot be decided again in a different proceeding.

Article 51.

In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.

By: Meneses-Gapac, Xiennia B.

In the judgment declaring a marriage void or annulling the marriage, the court shall provide for the following: • Liquidation, partition and distribution of the properties of the spouses; • Custody of the common children; • Support for the common children; and • Delivery of the presumptive legitimes of the children

As a rule, the conjugal dwelling is given to the spouse with whom majority of the children choose to remain. • This rule is not absolute. The court shall decide and should take the best interest of the children.

Article 52.

The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. •This article requires the registration of the judgment annulling the marriage, or the decree declaring the marriage void, the partition and distribution of the properties of the spouses as well as the delivery of the children’s presumptive legitimes in the appropriate civil registry and registries of property. If they do not comply with the requirement of recording, then, the same shall affect third persons.

By: Meneses-Gapac, Xiennia B.

Question: What if they did not comply with the requirement of recording in Article 52 of the FC and they contracted subsequent marriages, are the marriages valid?

Answer: It is void. As the law says: either of the former spouse may marry again after compliance with the requirements of Article 52

Rep vs. Crasus Iyoy

G. R. No. 152577

Facts:

The husband, Crasus Iyoy, filed a petition for the nullity of his marriage with his wife, Fely. It was when Fely left the Philippines for the United States when Iyoy received a letter from her requesting that he sign the enclosed divorce papers, however, Iyoy disregarded the letter. After sometime, Iyoy just got knowledge that Fely had already been married to an American abroad. Iyoy then filed a nullity of marriage due to psychological incapacity of his wife. Fely alleged that after securing a divorce from Iyoy she married her American husband and acquired American citizenship. She argued that her marriage to her American husband was legal because now being an American citizen, her status shall be governed by the law of her present nationality. RTC declared the marriage between Iyoy and Fely null and void ab initio but petitioner republic finds RTC’s judgment contrary to law and evidence thus raise the issue to CA, wherein it invokes Article 26 of the Family Code. A petition was raised to the higher court and among the arguments was that Court of Appeals committed serious errors of law in ruling that Article 26, paragraph 2 of the Family Code is inapplicable to the case at bar.

Issue:

Whether or not the divorce decree acquired by Fely from the United States is valid and recognized in the Philippines

Ruling:

No, the divorce decree acquired by Fely was not valid. Fely obtained her divorce when she was still a Filipino citizen. In a literal meaning of paragraph two of Article 26 cannot be applied in such a way that, Fely is not yet considered an alien at the time the divorce was acquired and therefore she does not have the capacity to remarry and the marriage is still considered as subsisting.

Art. 53.

Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null

and void.

By:Perolina, Nil Jay V.

Question:

If they did not comply with the requirement of recording in Article 52 of the Family Code and they contracted subsequent marriages, are the marriages valid?

Answer:

It is believed that they are void, as the law says that either of the former spouse may marry again after compliance with the requirements of the provisions of Article 52.

Art. 54.

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

By:Perolina, Nil Jay V.

There are 2 kinds of marriages referred to in Article 54 of Family Code that can produce legitimate children prior to their declaration as void marriages. They are:

1. those marriages under Article 36 where there is “psychological incapacity”;

2. those marriages under Article 53 where the decree annulling or declaring the marriage void, the partition, distribution of properties of the spouses and the delivery of the presumptive legitimes of the children have not been recorded in the proper civil registry or registries of property.

Case Digest:

G.R. No. 122749

Valdes v. RTC, Branch 102, Quezon City, et al

July 31, 1996, 72 SCAD 967

Vitug, J.

Facts:

The petition for review bewails, purely on a question of law, an alleged error committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has failed to apply the correct law that should govern the disposition of a family dwelling in a situation where a marriage is declared void ab initio because of psychological incapacity on the part of either or both of the parties to the contract.

Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdes sought the declaration of nullity of the marriage pursuant to Article 36 of the Family Code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102).

Gomez sought a clarification of that portion in the decision. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in unions without marriage.

Issue:

Whether or not petition will be granted

Ruling:

No, the Supreme Court ruled that in a void marriage, regardless of the cause thereof, the property relations of the parties are governed by the rules on co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts.

A party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party’s efforts consisted in the care and maintenance of the family.

FAMILY CODE OF THE PHILIPPINES

TITLE II: LEGAL SEPARATION

History of the Law on Legal Separation

· During the Spanish regime, only relative divorce (otherwise known as legal separation) provided for by the Partidas, was in force.

· The Partidas, like other municipal laws, were continued in force under the American sovereignity.

· In 1917, the divorce law, Act 2710 was passed, declaring absolute divorce with many restrictions and on only one ground to wit, adultery on the part of the wife or concubinage on the part of the husband.

· The Code Commission did not liberalize the divorce law, it merely reproduced the provisions of Act 2710 and added more restrictions, one of which was that no judgment for divorce shall be granted based on stipulation of facts or on confession of judgment

· The Code Commission also revived relative divorce because absolute divorce was discriminatory in its operation against the Catholics.

· The Congress voted to eliminate absolute divorce from the Project so that only relative divorce was retained in the Code as finally approved.

· The term “relative divorce” was changed to “legal separation” following the suggestion and wishes of the women Catholics, who said that a Catholic woman would not want to be known as a divorcee, but only as legally separated from her husband.

Definition:

Legal Separation

Ø also known as Relative divorce or mensa et thoro

Ø is the separation of the spouses from bed and board without dissolving the marriage bond

Ø the spouses are not free to contract subsequent marriages

Ø the spouses are entitled to live separately

Divorce or Annulment

Ø also known as Absolute Divorce or vincula matrimonii

Ø marriage is dissolved

Ø spouses can contract subsequent marriages

· divorce is mentioned or included because of Article 26 Paragraph 2 of the Family Code, which we already discuss, which recognizes the effects of a foreign divorce obtained by the foreigner-spouse in mixed marriage, capacitating the foreigner to marry again under his national law

Article 55

A petition for legal separation may be filed on any of the following grounds:

(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

(5) Drug addiction or habitual alcoholism of the respondent;

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

By: Pomintel-Acuno, Florabel

· The key words are ― repeatedly and grossly

· there are 10 grounds listed in this Article unlike in Article 97 of the NCC where there are only three

o adultery - wife

o concubinage – husband

o attempt by one against the life of the other

· the first ground under Article 55 is…..

· The petitioner have the burden to prove that the violence is repeated

· The spouse cannot use this as a ground when it happened only once

· There must be undue pressure since some pressure is expected in every marriage.

(8) Sexual infidelity or perversion;

· This is the Adultery or Concubinage

· Adultery – is committed when married woman has carnal knowledge with a man other than her husband

· Concubinage – is committed when a married man performs the following acts

o By keeping a mistress in the conjugal dwelling

o By cohabiting with her in any other place

o Having carnal knowledge with a woman other than his wife under scandalous circumstances

(9) Attempt by the respondent against the life of the petitioner; or

· under this ground, there is no need for conviction

(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

For purposes of this Article, the term “child” shall include a child by nature or by adoption.

Article 56

The petition for legal separation shall be denied on any of the following grounds:

(1) Where the aggrieved party has condoned the offense or act complained of;

(2) Where the aggrieved party has consented to the commission of the offense or act complained of;

(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

(4) Where both parties have given ground for legal separation;

(5) Where there is collusion between the parties to obtain decree of legal separation; or

(6) Where the action is barred by prescription.

By: Pomintel-Acuno, Florabel

· Condonation is the forgiveness of a marital offense constituting a ground for legal separation

· The wrongdoer, as implied by law, shall not again commit the offense and shall thereafter treat the other spouse with conjugal kindness

· Breach of the condition will revive the original offense

· Condonation is implied from sexual intercourse after knowledge of the other’s infidelity

· Consent may come prior to the act of infidelity

· If the parties agreed in writing that they would separate and that they can have new partners, the other party cannot secure decree of legal separation because of a prior consent to the infidelity

· Consenting by one spouse to an offense by the other will bar a suit for legal separation

· Principle of volenti non fit injuria will apply

· Volenti non fit injuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict.

· If both parties is guilty of infidelity, none of them can seek a decree of legal separation, as basic principle, one shall go to court with clean hands

· Collusion presupposes an agreement of the husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed a breach of matrimonial duty, for the purpose of enabling the other to obtain the legal remedy as for a real injury

· It is suspected that there is collusion between the parties if the defendant does not file an answer despite service of summons.

· Legal separation prescribes after 5 years following the occurrence of the cause for the same

· The aggrieved party must complain within the period prescribed by law otherwise, his or her silence may mean his assent thereto

Case: Benjamin Bugayong, plaintiff-appelant

Leonila Ginez, defendant-appellee

Citation: G.R. No. L-10033

Date: December 28, 1956

Ponente: Felix, J.

FACTS:

Benjamin Bugayong, a serviceman in the United States Navy, was married to defendant Leonila Ginez on August 27, 1949 at Asingan, Pangasinan, while on furlough leave. Leonila Ginez left the dwelling of her sister-in-law and informed heer husband by letter that she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college there.

As early as July 1951, Benjamin Bugayong, while far from home, received some information on the acts of infidelity of his wife. So he went home to verify the truthfulness of the alleged infidelity. On August 1952, he sought for his wife and after finding her, convinced her to go with him and live as a husband and wife. The petitioner tried to extract the truth about his wife’s unfaithfulness, but the defendant instead of answering his query, merely packed up her things and left him. The petitioner took that gesture as a confirmation of the accusation.

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan an action for legal separation against his wife. Leonila Ginez timely filed an answer vehemently denying the averments of the complaint and setting affirmative defenses, and filed a motion to dismiss on the ground that the acts have been condoned.

ISSUE:

WON plaintiff can file legal separation on the ground of infidelity despite his act of sleeping with his wife for 2 night.

RULING:

No, the plaintiff cannot file legal separation on the ground of sexual infidelity.

Condonation is the conditional forgiveness or remission by a husband or wife of a matrimonial offense which one of the spouse has committed. A legal separation will not be granted for adultery or concubinage where the parties continue to live together after it was known or there is sexual intercourse or sleeping together for a single night because it constitute condonation.

The court ruled against the plaintiff saying that with the onduct of the latter in sleeping together with his wife despite his belief that his wife has committed acts of infidelity deprives him of any action for legal separation because he actually condoned said sexual infidelity and this comes within the restriction of Article 56, par 1 of the Family Code.

Article 57

An action for legal separation shall be filed within five years from the time of the occurrence of the cause.

By: Rosales, Gayle Marion R.

ANNOTATION:

A spouse may have known a cause for legal separation, but he may have opted to keep quiet; hence, slept on his right to file an action for legal separation. One reason for the prescriptive period is that the law seeks to preserve the marriage as a social institution. For, even if the prescription has not been alleged as defense, but it is shown by the allegations in the complaint as well as the evidence, the Court can still dismiss the action since it can take judicial notice of prescription.

G.R. No. L-11766 October 25, 1960

SOCORRO MATUBIS, plaintiff-appellant,
vs.
ZOILO PRAXEDES, defendant-appellee.

Luis N. de Leon for appellant.
Lucio La. Margallo for appellee.

PAREDES, J.:

FACTS:

Plaintiff and defendant were legally married on January 10, 1943. For failure to agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status remained unchanged until April 24, 1956 when action was filed for legal separation alleging abandonment and concubinage. Plaintiff, in 1948 condoned and/or consented in writing to the concubinage committed by the defendant husband.

ISSUE:

Whether or not the period to bring the action for legal separations has already elapsed and whether or not the legal separation may be granted to an innocent spouse who has consented and/or condoned in writing to concubinage committed by her husband

RULING:

Art 102 of the NCC (now Art 57, FC) provides that an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when the cause occurred. (Now 5 years under Art 47 of the FC)

The plaintiff became aware of the illegal cohabitation of her husband with Asuncion in January 1955. The complaint was filed on April 24, 1956. The present action was, therefore filed out of time and for that reason the action is barred.

Art 100 of the NCC (now Art 57 of FC) provides that separation maybe claimed only by the innocent spouse, provided that there has been no condonation or consent to the adultery or concubinage. As shown by evidence, the plaintiff has consented to the commission of concubinage by her husband in writing. This stipulation in writing is an unbridled license she gave her husband to commit concubinage. Having consented to the concubinage, the plaintiff cannot claim legal separation.

NOTE:

Under Article 57 of the Family Code, the period to file an action for legal separation is now absolutely 5 years from the time of the cause of action occurred.

Article 58

An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.

By: Rosales, Gayle Marion R.

ANNOTATION:

The basic purpose of the law in suspending the trial of an action for legal separation until after the lapse of 6 months since its filing is to give the parties an elbow room to reconcile. For, if there is reconciliation prior to the trial, the court can dismiss the action. In fact, even after a judgment has been rendered, if the parties manifest that they have already reconciled, the Court in the same proceedings can still set aside the decree of legal separation.

Purpose of the 6-month suspension period.

The period is evidently intended as a cooling-off period to make a possible reconciliation between the spouses. The healing balm of time may aid in the process.

However, this period does not have the effect of overriding the other provisions of the Code such as the determination of the custody of the children, the grant of alimony and support pendente lite. The hearing of ancillary remedies such as for preliminary injunctions may proceed to prevent, for instance, the husband from disposing conjugal properties designed to injure the interest of the wife.

TITLE II LEGAL SEPARATION

ARTICLE 60 & 61

Reported by DONA M. VALBUENA #17

ARTICLE 60 – No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care of that the evidence is not fabricated or supressed

No decree of legal separation can be issued on the basis of stipulation of facts or confession of judgment. Such stipulation or confession may be evidence of collusion between the parties. However, if aside from confession of judgment, there is evidence aliunde* to prove a ground for legal separation, still it can be granted.

*from another source; from a source other than (Mirriam Webster Dictionary)

G.R. No. L-13553- February 23, 1960
Jose De Ocampo versus Serafina Florenciano
Ponente – Justice Bengzon

Facts of the case:

Jose De Ocampo and Sefarina Florenciano were married in 1938. They lived as husband and wife and begot children. In March 1952, Jose found out that his wife was carrying an illicit relationship. She was sent to Manila to study beauty culture, Jose found out that she was again carrying adulterous relationships with other men, and by June 1952 she left him and they lived separately. In June 1955 Jose surprised his wife and found out that she is living with another man. Jose signified his intention to file for legal separation, the defendant manifested her conformity provided she will not be charged with adultery in a criminal action.

On July 5, 1955, the Jose De Ocampo filed a legal separation on the ground of adultery. The Court of First Instance (CFI) of Nueva Ecija dismissed the case. The Court of Appeals affirmed, holding that there was a confession of judgment plus condonation or cosent to the adultery and prescription.

Issue:

Whether or not there was a confession of judgment, condonation or consent to the adultery and prescription in respect to Art. 100 and Art. 101 of the New Civil Code? (Art. 56 FC)

Held:

Where there is evidence of adultery independently of the defendant’s statement agreeing to the legal separation, the decree of separation should be granted, since it would not be based on the confession upon the evidence presented by the plaintiff (there were other witnesses presented who testified as to the veracity of the adulterous relationships the wife committed). What the law prohibits is a judgment based exclusively on defendant’s confession

ARTICLE 61 – After the filing of petition for legal separation, the spouses shall be entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers as those of a guardian under the Rules of Court.

G. R. No. 106169- February 14, 1994

Sabalones versus CA, et. al.
Ponente – Justice Cruz

Facts of the case:

Samson Sabalones and Remedios Gaviola are married with children. After his retirement from the diplomatic service, Samson Sabalones came back to the Philippine but did not return to his family but live with another woman Thelma Cumareng. While he was in the diplomatic service, he left the administration of their properties with his wife. He filed for a judicial authorization to sell a building and lot located in Greenhills, San Juan City.

The legal wife countered with a prayer to grant a decree of legal separation and order the liquidation of their properties with forfeiture of her husband’s share for adultery.

The RTC ruled in favor of the wife and decreed a legal separation with forfeiture of husband’s share in the conjugal properties, declaring further that he is not entitled to support from his wife.

The RTC decision was appealed at the Court of Appeals. The filed a motion for issuance of write of preliminary injunction because the husband was interfering with the administration of their properties and harassing their tenant in their Forbes Park property.

The Court of Appeals granted the preliminary injunction prayed by the wife.

The husband assailed the CA’s writ of preliminary injunction.

Issue:

Whether or not the CA erred in issuing an injuctive relief against the husband?

Held

The Court held that the RTC’s decision was implicitly denying the husband his shares on the conjugal properties thus disqualifying him as administrator thereof. The CA in effect designated the wife when it issued an injunctive relief thus designating the wife as the administrator. The petition was denied for lack of merit.

Article 62

During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a)

By: Calano, Ernest Ryan

The law makes cross-reference to article 49 of the Family Code which mandates that during the pendency of an action for annulment or declaration of nullity of marriage, the court shall provide for the support for the spouses , and the custody and support of the common children. The court shall also give paramount consideration to the moral and material welfare of the children and their choice of the parent with whom they wish to remain. All these measures are applicable in cases of legal separation

Custody and Support of the common children:

• If there is a child below 7 years of age, he cannot be separated from the mother as a rule because no one in the world can answer for the needs of a child below the age of seven years. But because of her adultery, child can be separated. The court may award the custody to the father. Or if there is a choice of a child, seven years old or above, still the court may not respect the same if it is to the best interest of the child that the choice be not respected or recognized.

• The court is not always bound by such choice. In its discretion, the court may find the chosen parent unfit and award the custody to the other parent, or even to a third person as it deems fit under the circumstances.

Espiritu v. Court of Appeals

G.R. No. 115640, 15 March 1995

MELO, J;

FACTS:

Reynaldo Espiritu and Teresita Masanding began to maintain a common law relationship of husband while in US. Teresita works as a nurse while Reynaldo was sent by his employer, National Steel Corporation, to Pittsburgh for a temporary post. They begot a child in 1986 named Rosalind. After a year, they went back to the Philippines for a brief vacation when they also got married. Subsequently, they had a second child named Reginald.

In 1990, they decided to separate. Reynaldo pleaded for second chance but instead of Teresita granting it, she left Reynaldo and the children and went back to California. Reynaldo brought the children in the Philippines and left them with his sister. When Teresita returned in the Philippines sometime in 1992, she filed a petition for a writ of habeas corpus against Reynaldo and his sister to gain custody of the children.

ISSUE:

Whether or not the custody of the two children should be awarded to the mother.

RULING:

No. In cases of care, custody, education and property of children, the latter’s welfare shall be the paramount concern and that even a child under 7 years of age may be ordered to be separated from the mother for compelling reasons. The presumption that the mother is the best custodian for a child under seven years of age is strong but not conclusive. At the time the judgment was rendered, the 2 children were both over 7 years of age. The choice of the child to whom she preferred to stay must be considered.

It is evident in the records submitted that Rosalind chose to stay with his father/aunt. She was found of suffering from emotional shock caused by her mother’s infidelity. Furthermore, there was nothing in the records to show that Reynaldo is unfit, well in fact he has been trying his best to give the children the kind of attention and care which their mother is not in the position to extend. On the other hand, the mother’s conviction for the crime of bigamy and her illicit relationship had already caused emotional disturbances and personality conflicts at least with the daughter.

Hence, the custody of the minors was reinstated to their father.

Article 63

The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;

(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and

(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)

By: Calano, Ernest Ryan

EFFECTS OF LEGAL SEPARATION

As to the right to live separately, the same is even a right during the pendency of the action for legal separation. But even if they are living separately from one another, still they are considered as married, for the rule is that the marriage bond is not severed. As a consequence, one cannot be compelled to submit to one’s self to sexual intercourse with the other.

Legal separation likewise dissolves the absolute community or the conjugal partnership of gains. Then it shall be liquidated, but the offending spouse shall have no right to any share of the net profits earned by the community of properties. Instead, the share shall be forfeited in favor of the following:

a. The common children

b. If there are no common children, the children of the guilty spouse by a previous marriage; or

c. In default of children, the innocent spouse.

The provision of law depriving the guilty spouse of any share in the profits earned by the community of properties is anchored on moral grounds.

Custody of Children:

As a rule, the custody of minor children is awarded to the innocent spouse, except if there is a child below 7 years of age. As has been mentioned earlier the adultery of the mother is a compelling reason to separate a child from the mother.

Such separation from the guilty spouse is based on the principle that he or she is morally unfit. In case the best interest of the child or minor requires, as where the innocent spouse often travels because of nature of work or profession that he may neglect his children, the court may appoint a third person as a guardian for such minors.

There are minors who may be more than seven years of age and they may have chosen the innocent spouse. But if their choice does not serve their best interest, the court may still appoint a third person or guardian.

Decree of legal separation; property relation of the spouses; effect on guilty spouse.

*The conjugal partnership is dissolved and liquidated and the offending spouse would have no right to any share of the net profits earned by the conjugal partnership.

*It must be noted that the forfeiture is only for the said profits, the increase in value between the market value of community property at the time of the celebration of marriage and the market value at the time of it’s dissolution.

G.R. NO. 155409 June 8, 2007

VIRGILIO MAQUILAN, petitioner,
vs.
DITA MAQUILAN, respondent.

AUSTRIA-MARTINEZ, J.:

Facts:

Petitioner discovered that private respondent was having illicit sexual affair which prompted the petitioner to file a case of adultery against private respondent and the her lover. Both the private respondent and her lover were convicted of the crime charged and were sentenced to suffer an imprisonment ranging from one (1) year, eight (8) months, minimum of prision correccional as minimum penalty, to three (3) years, six (6) months and twenty one (21) days, medium of prision correccional as maximum penalty.

During the pre-trial of the said case, petitioner and private respondent entered into a COMPROMISE AGREEMENT. The said Compromise Agreement was given judicial imprimatur by the respondent judge in the assailed Judgment On Compromise Agreement.

However, petitioner filed an Omnibus Motion, for the repudiation of the Compromise Agreement and the reconsideration of the Judgment on Compromise Agreement by the respondent judge on the grounds that his previous lawyer did not intelligently and judiciously apprise him of the consequential effects of the Compromise Agreement. The petitioner contends that the Compromise Agreement is void because it circumvents the law that prohibits the guilty spouse, who was convicted of either adultery or concubinage, from sharing in the conjugal property. Since the respondent was convicted of adultery, the petitioner argues that her share should be forfeited in favor of the common child under Articles 43 and 63 of the Family Code.

Issue:

Whether or not the action for repudiation of the compromise agreement shall prosper.

Held:

No. The crime of adultery does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of such property inter vivos. The court held that the subject Compromise Agreement is VALID without prejudice to the rights of all creditors and other persons with pecuniary interest in the properties of the conjugal partnership of gains.

ARTICLE 64

After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.

The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a)

By: Laurente, Ivy M.

T E R M S D E F I N E D

BENEFICIARY – any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution

LEGAL SEPARATION – judicially authorized separation from bed and board — a mensa et thoro — but the spouses remain married. There are at least 10 grounds under the Family Code by which legal separation can be effected (Article 55, Family Code)

DONATION – an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725, Civil Code)

ALIENATION – the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another

LIEN – an encumbrance that attaches to a certain transaction or specific property for the satisfaction of a debt or performance of an obligation or other duty that is created by operation of law, e.g., by agreement of the parties in a contract, as in a mortgage lien

ENCUMBRANCE – a lien or claim on the title or possession of property which thus burdens its use or sale, or transfer

The law provides for other effects of legal separations as:

( 1) The innocent spouse may revoke donations made by him/her to the offending spouse;

(2) The innocent spouse may revoke the designation of guilty spouse as beneficiary in any insurance policy even if such designation is stipulated as irrevocable;

The revocation of the donation must be recorded in the registry of property where the property is located. This is to protect the parties against the rights of innocent third persons.

ILLUSTRATION

A, prior to his marriage to B, donated real property to the latter. It was registered later under her name, but 10 years later after their marriage, B gave rise to a cause for legal separation. A sued for legal separation and it was granted, pronouncing B as the guilty spouse. A revoked the donation but the revocation was not recorded in the registry of property. In the meantime, or after the revocation, B sold the property to C, a buyer in good faith and for value, and obtained a title. The revocation is not effective as against C, the buyer in good faith and for value because of the protection given by the Torrens System to a buyer in good faith and for value. For C not even look beyond the title of B to determine if there is a defect therein. In fact, Article 64 of the Code says that alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation is registered in the registries of property shall be respected.

According to the law, revocation is not by operation law. Revocation requires actions that should be filed in court to that effect and the law prescribes a period of five years from the time the decree of legal separation has come final. That means that the inaction of the innocent spouse for five years is equivalent to a waiver of his rights to revoke the donation as this is a right that can be waived whether impliedly or expressly and the waiver is valid.

On the matter of the revocation of the designation in an insurance policy, the law requires for its effectivity that a written notice be given to the insured.

Article 65

If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n)

By: Laurente, Ivy M.

The joint manifestation that will be filed with the court will be needing the consent and signature of both parties as proof of their mutual intention and consent to legally live together again as husband and wife after their legal separation.

With regard to effects of a legal reconciliation, the filing of such manifestation to set aside a previous decree of legal separation shall have the following consequences:

(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and

(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.

ILUSORIO VS. BILDNER

G.R. No. 139789, May 12, 2000

Facts:

Potenciano Ilusorio, a lawyer, 86 years old, was married to Erlinda Ilusorio. They lived together for 30 years and their marriage gave them 6 children namely Ramon, Lin Illusorio-Bildner (defendant), Maximo, Sylvia, Marietta, and Shereen. In 1972, they separated in bed.

In 1997, Potenciano arrived in the Philippines from tUS and he stayed for 5 months in Antipolo City with her wife. During his stay in Antipolo City, his children Sylvia and Lin alleged that their mother, Erlinda overdose Potenciano resulting in deterioration of Potenciano’s health.

Subsequently, in February 1998, Erlinda filed with RTC petition for guardianship over Potenciano and his property due to the latter’s old age, frail health, poor eyesight, and impaired judgment. In May 1998, after he attended a meeting, he did not go back to Antipolo and lived at his Condominium in Makati instead.

In 1999, Erlinda Kalaw Ilusurio, petitioner filed with CA a petition for habeas corpus to have custody of his husband alleging that the respondent refused her demands to see and visit her husband and prevented Potenciano from returning to Antipolo.

Issue:

Whether or not, petitioned writ of habeas corpus should be granted to Erlinda Kalaw Ilusorio.

Held:

No. Sec 1. of RULE 102, REVISED RULES OF COURT OF THE PHILIPPINES provided that the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

According to the Supreme Court, there is no evidence that there is actual detention of Atty. Potenciano’s liberty. Despite his old age, it doesn’t hinder him to be mentally capacitated. Atty. Potenciano’s mental state was observed and it was proven that he had an alert mind and he also managed to answer all the significant questions.

Considering his state of mind, it is measured that he can make choices of his own. The Supreme Court cited that the CA exceeded its authority for granting visitation rights for habeas corpus, and it was against Atty. Potenciano’s right to privacy.

Also, no court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other means process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.

ARTICLE 66.

The reconciliation referred to in the next preceding Article shall have the following consequences;
     a. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and
     b. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.
The court order containing the foregoing shall be recorded in the proper civil registries.
By: Sarmiento, Sheryl P.
§ Reconciliation after the decree of legal separation rescinds the decree and renders it void.
§ The pendency of the action for legal separation stops the proceedings. It even causes its dismissal.
ARTICLE 67
The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify:
1.  The properties to be contributed anew to the restored regime
2.  Those to be retained as separate properties of each spouse; and
3.  The names of all their known creditors, their addresses and the amounts owing to each.
The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of properties.
The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor’s claim.
By: Sarmiento, Sheryl P.
G.R. NO. 155409              June 8, 2007 (Art.63)
VIRGILIO MAQUILAN, petitioner,
vs.
DITA MAQUILAN, respondent.
AUSTRIA-MARTINEZ, J.:
FACTS
• Petitioner and the private respondent are spouses who once had a blissful married life and out of which were blessed to have a son. However, their once sugar coated romance turned bitter when petitioner discovered that private respondent was having illicit sexual affair with her paramour, which thus, prompted the petitioner to file a case of adultery against private respondent and the latter’s paramour. Consequently, both the private respondent and her paramour were convicted of the crime charged and were sentenced to suffer imprisonment.
• Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of Marriage, Dissolution and Liquidation of Conjugal Partnership of Gains and Damages imputing psychological incapacity on the part of the petitioner.
• Petitioner and private respondent entered into a COMPROMISE AGREEMENT where they separated and divided their properties.
• Petitioner filed a Motion for Reconsideration of the aforesaid Order, but the same was denied.
• The respondent Judge in the assailed Order dated January 21, 2002, denied the aforementioned Omnibus Motion.
ISSUE
Whether or not a spouse convicted of adultery, can still share in the conjugal partnership.
HELD
Yes. The contention that the Compromise Agreement is tantamount to a circumvention of the law prohibiting the guilty spouse from sharing in the conjugal properties is misplaced.
Under Article 143 of the Family Code, separation of property may be effected voluntarily or for sufficient cause, subject to judicial approval. The questioned Compromise Agreement which was judicially approved is exactly such a separation of property allowed under the law. This conclusion holds true even if the proceedings for the declaration of nullity of marriage was still pending. However, the Court must stress that this voluntary separation of property is subject to the rights of all creditors of the conjugal partnership of gains and other persons with pecuniary interest pursuant to Article 136 of the Family Code.

TITLE III

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

ARTICLE 68

The husband and wife are obliged to live together, observe mutual love, respect , fidelity and render mutual help and support.

By: Abrigo, Mary Anne L.

When wife may establish separate dwelling.

While the husband and wife are obliged to live together, the wife may establish a separate dwelling under circumstances, wit ;

(a) The husband is immoderate and barbaric in his demands for sexual intercourse (Goitia v. Campos-Rueda, 35 Phil. 54 )

(b) Gross insult made upon her by the husband; and

(d) Living together, a personal act

(e) If the wife refuses to live with the husband , she cannot compelled to go back because the act of living together is a personal act which cannot be demandable by a court action. If the wife insists, the husband may not be compelled to support her if her refusal is without just cause ( Art 100. Family Code)

(f) The obligation to live together, observe mutual love and respect and fidelity and render mutual help and support are among the essential duties to the marriage bond ; otherwise such party who cannot comply with these basic marital covenants may be declared as one suffering from psychological incapacity (Santos v. CA,et.al GR No. 112019, January 4, 1995, 58 SCAD 17 )

(g) A husband cannot, by mandatory injunction, compel his wife to return to the conjugal dwelling.

MARIANO B. ARROYO

V. DOLORES C. VASQUEZ DE ARROYO, 42 PHIL 54

FACTS OF THE CASE :

Mariano B. Arroyo and Dolores C. Vasquez De Arroyo were united in the bonds of wedlock by marriage in the year 1910. They have lived as man and wife and went away from the common home with the intention of living separately from her husband. After efforts had been made by husband without avail to induce her to resume marital relations, this action was initiated by him to compel his wife to return the matrimonial home and live with him as a dutiful wife. The defendant answered , admitting the marriage , and that she had left her husband without his consent.

Accordingly she in turn prayed for affirmative relief consisting of

1. Decree of separation

2. Liquidation of the conjugal partnership

3. An allowance for counsel fees and permanent separate maintenance. Upon hearing the case, the lower court rendered judgement in favor of defendant.

ISSUE :

Whether the plaintiff husband is entitled to a permanent mandatory injunction requiring the defendant wife to return to the conjugal home and live with him as a wife according to the precepts of law and morality.

HELD :

Where the wife is forced to leave the marital home because of ill-treatment from her husband, he can be compelled to provide for her separate maintenance , without regard to whether a cause for divorce exists or not. In this case, it is obvious that the cross complaint filed by the wife is not a well founded and none of the reliefs sought therein can be granted.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the situation where the couple has many residences.

While the obligation of the spouses to live together is mandated by law, the same cannot however be compelled by any proceeding in court. The reason is that, the act of living together is a mere voluntary act of the spouses. Hence if one of the spouses leaves the conjugal dwelling, the other spouse cannot go to court and seek for an order to compel such spouse to return. A writ of habeas corpus will not even issue to compel a spouse to live with another.

Article 69

The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

By:Aguilba, Ray Dean F.

DOMICILE

—Domicile is residence coupled with the intention to remain for an unlimited time. No length of residence without intention will constitute domicile.

—Minors follow the domicile of their parents.

—The fixing of the family domicile should be by mutual agreement by husband and wife.

—In case of disagreement between husband and wife, the Court shall decide in a judicial summary proceeding in accordance with Article 253 of the Family Code.

—Difference between DOMICILE and RESIDENCE

Domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning while residence is a place of abode, whether permanent or temporary.

EXEMPTIONS

A spouse can validly live away or separately from the other:

1. If the latter should live abroad;

2. By other valid and compelling reasons

Note:

These exemptions shall not apply if it is not compatible with the solidarity of the family.

IMELDA ROMUALDEZ-MARCOS, Petitioner

COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, Respondents

G.R.No. 119976, September 18, 1995

KAPUNAN, J.:

This was a Petition for Cancellation and Disqualification filed by Cirilo Roy Montejo, an incumbent representative of the First District of Leyte against Imelda Romualdez-Marcos with the Commission on Elections alleging the petitioner’s failure to meet the constitutional requirement for residency.

FACTS

In 1938 when Imelda Romualdez was just a child, established her domicile in Tacloban, Leyte where she spent her highschool in Holy Infant Academy from 1938 to 1949 and subsequently pursued her college degree at St. Paul’s College (Divine Word University). She also taught in Tacloban particularly in Leyte Chinese School before she went to Manila in 1952 to work at the House of Representatives. In 1954 she married the late President Fernand E Marcos when he was then a congressman of Ilocos Norte. She live in San Juan, Rizal in 1959 when President Marcos was elected as senator where she became a registered voter.

In 1965 when President Marcos won the presidency, they live in Malacanang Palace where she became a registered voter of San Miguel, Manila.

In 1995, she decided to run as Representative of First District of Leyte. However, her opponent, Cirilo Roy Montejo filed a “Petition for Cancellation and Disqualification” with the Commission on Election based on the allegation that the petitioner did not meet the constitutional requirement for her residency when the petitioner declared seven months of residency in her Certificate of Candidacy. In her corrected COC, the petitioner she added the phrase “since childhood” to resolve the mistaken information about residency.

ISSUE

Whether or not Imelda Romualdez -Marcos should be disqualified to run as representative of the First District of Leyte due to lack of residency

HOLDING

No, Imelda domiciled in Leyte when she was a child when her father brought them there. It is said that the children follow their parent’s domicile. In this case it is clear that Imelda’s legal residence or domicile of origin by operation of law is Leyte that even though she left that place because of her work at the House of Representative and subsequently after getting married to the late President Ferdinand Marcos, there was no clear proof that she actually abandoned and lost her domicile of origin despite of having several residence thereafter. Thus, her residence of origin should be deemed to continue.

Having been determined that the herewith questioned issue of residency is untenable for the purpose of election, the Supreme Court ruled in favor of the petitioner for having possessed the necessary residence qualifications to run for congressional seat.

Article 70

The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties.

By:Aguilba, Ray Dean F.

Support is a joint responsibility. Both spouses are responsible for the support of the family.

Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendant, education and transportation, in keeping with the financial capacity of the family (art. 194)

BRIGIDO B. QUIAO, Petitioner,

vs.

RITA C. QUIAO, KITCHIE C. QUIAO, LOTIS C. QUIAO, PETCHIE C. QUIAO, represented by their mother RITA QUIAO, Respondents.

G.R. No 176556 July 4, 2012

REYES, J.:

Facts:

Petitioner Brigido Quiao was married to respondent Rita Quiao in 1977 and got four children. They had no separate properties prior to their marriage.

In 2000, Rita filed a complaint against Brigido for legal separation for cohabiting with another woman. Subsequently, the RTC rendered a decision in 2005 declaring the legal separation of the parties pursuant to Article 55, thereby awarding the custody of their three minor children in favor of Rita, who is the innocent spouse.

The properties accrued by the spouses shall be divided equally between them subject to the respective legitimes of their children; however, Brigido’s share of the net profits earned by the conjugal partnership shall be forfeited in favor of their children in accordance to par. 9 of Article 129 of the Family Code.

A few months thereafter, Rita filed a motion for execution, which was granted by the trial court. By 2006, Brigido paid Rita with regards to the earlier decision; the writ was partially executed.

After more than nine months, Brigido filed a motion for clarification asking the RTC to define “Nets Profits Earned.” In answer, the court held that the phrase denotes “the remainder of the properties of the parties after deducting the separate properties of each of the spouses and debts.”

Upon a motion for reconsideration, it initially set aside its previous decision stating that net profit earned shall be computed in accordance with par. 4 of Article 102 of the Family Code. However, it later reverted to its original Order, setting aside the last ruling.

Issue:

Whether or not the offending spouse acquired vested rights over ½ of the properties in the conjugal partnership.

Held:

In the case at bar, since it was already established by the trial court that the spouses have no separate properties, there is nothing to return to any of them.

The listed properties are considered part of the conjugal partnership. Thus, ordinarily, what remains in the listed properties should be divided equally between the spouses and/or their respective heirs. However, since the trial court found the petitioner the guilty party, his share from the net profits of the conjugal partnership is forfeited in favor of the common children, pursuant to Article 63(2) of the Family Code.

So, as not to be confused, like in the absolute community regime, nothing will be returned to the guilty party in the conjugal partnership regime, because there is no separate property which may be accounted for in the guilty party’s favor.

Article 71

The management of household shall be the right and duty of both spouses.the expenses for such management shall be paid in accordance with the provisions of Article 70.

By: Austria,Honeylee B.

The spouses are jointly responsible for the support of the family. Such support may be taken from the following:

1.Absolute community of property or conjugal partnership.

2.Income or fruits of separate properties of each spouse

3.From separate properties of each spouse

Support from the properties of each spouse shall be taken only if there is insufficiency of income or fruits of separate property of each spouse. Otherwise, support shall be satisfied from the income or fruits of the separate properties of each spouse.

Article 72

When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or the family, the aggrieved party may apply to the court for relief.

By: Austria,Honeylee B.

Afford relief within the conjugal union without destroying it as in legal separation. It is the maxim equity that there is no wrong without a remedy. The law specified the important rights and duties between a husband and wife, and a neglect of duty on the part of either or any act that brings dishonor,danger or material injury upon the other must have corresponding remedy. It puts the form and manner of remedy in the discretion of the court.

G.R. No. L-19671

Pastor Tenchavez v. Vicenta Escaño

REYES, J.B.L., J.:

Facts:

Vicenta Escaño is a 27 year old Student of commerce in University of San Carlos Cebu City that exchanged vows with Pastor Tenchavez a 32 year old an engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register. Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love.

Few weeks before the secret marriage their engagement was broken as Vicenta returned the engagement and ring for another suitor.Her love for Pastor beckoned, she pleaded for his returned and they reconciled. This time they planned to get married and elope. The elopement did not happen but they got married.To the surprise of Vicenta's parents they wanted to re-celebrate to validate what he believed to be an invalid marriage due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage.Unfortunately the re-celebration did not happen because the Father of Vicenta recieved a letter from a maid saying that Pastor has amorous relationship with Pacita Noel.Without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was approved, and she left for the United States.

She filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character."

Then she got married to Russell Leo Moran, in Nevada.

Issue:

Whether or not Vicenta Escaño is liable for her failure to comply with her duties and deserting Pastor without justification.

Held:

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escaño remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained from the State of Nevada, on grounds of "extreme cruelty, entirely mental in character."

At the time the divorce decree was issued, Vicenta Escaño, like her husband, was still a Filipino citizen. She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines.

Article 72 of the Family Code states that since the woman gave dishonor to the family the aggrieved party may apply to court for relief.

WHEREFORE, Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escaño, entencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and attorneys' fees

Heirs of Raymundo Banas V. Heirs of Bibiano Banas 134 SCRA 260

Quisumbing, J;

Facts:

The heirs of Raymundo Bañas alleged in their complaint for the partition or recovery of hereditary share, fruits and damages against the heirs of the late Bibiano Bañas, that Raymundo Bañas was the acknowledge natural son of Babiano Bañas and that descent, they are entitled to a share in the estate of the late Bibiano Bañas. In support of this claim they presented a handwritten document found by Trinidad Vecino Vda. De Bañas after the death of his husband, she discovered a document which establish Raymundo's filiation, a letter addressed to Raymundo by Bibiano where he stated the complimentary ending "Su Padre".

The Trial Court dismissed the action on the ground that the evidence was not sufficient the claim that Raymundo was an acknowledge natural child of Bibiano

Issue:

Whether or not Raymundo Bañas was acknowledge as a natural child of Bibiano.

Held:

Raymundo was not an acknowledge child of Bibiano on the basis of a letter with a complimentary ending of "su padre" , especially if the full context is to be taken in consideration.It is not considered as indubitable acknowledgment but merely an indication of paternal solitude.

Doctrine of incidental acknowledgment is where a voluntary acknowledgment may be done incidentally in a public document. A distinction must be made between Voluntary which the recognition is incidental or Compulsory which is direct and express.

"con tal que de ellos aparezca suficentemente la intencion de hacerio" the intent to recognize must be sufficiently apparent in the document.

It is clear that incidental acknowledgment is not applicable in the evidence because it is not a public document only a private letter stating that the boy is staying out late and not studying for school or helping his mother."Su padre" is merely indication of paternal solitude.

Article 73

(Loida F. Cordero #4)

Article 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious and moral grounds.

In case of disagreement, the court shall decide whether or not:

-The objection is proper

-Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.

Equal rights of man and woman rules:

Article 117 of the Civil Code where it was only the husband who had the right to object if the wife would engage in or exercise a profession or occupation or business. Now the wife has been given the same right to object. There must be a good reason for objection and objecting spouse must present evidence.

Rules if business benefited family:

If benefits have accrued to the family before the objection, the absolute community of property or conjugal partnership is liable for damages. The reason for this rule is that no one shall unjustly enrich himself at the expense of another.

If benefits accrued after the objection, the separate property of the spouse who did not secure the consent of the other shall be solely liable for obligations incurred.

The creditors who acted in good faith are protected. So that, if one of the spouse transacted with a creditor without the consent of the other spouse but the creditor did not know of the absence of such consent, the absolute community of property or the conjugal partnership shall be liable.

Article 74

(Loida F. Cordero #4)

The property relations between husband and wife shall be governed in the following order:

By marriage settlements executed before the marriage

By the provisions of this Code

By the local customs

AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO MAGSAJO

VS.

COURT OF APPEALS and SPOUSES ALFREDO & ENCARNACION CHING

G.R. No. 118305 February 12, 1998

Facts:

Philippine Blooming Mills obtained a P 50,300,000.00 loan from petitioner Ayala Investment. As an added security for the credit line extended to PBM, respondent Alfredo Ching, Executive Vice President, executed security agreements and making himself jointly and severally answerable with PBM’s indebtedness to Ayala Investments.

PBM failed to pay the loan. Thus , Ayala Investments filed a case for sum of money against PBM and Alfredo Ching. The lower court issued a writ of execution of pending appeal. Thereafter, deputy sheriff Magsajo caused issuance and service upon respondents – spouses of a notice of sheriff sale on three of their conjugal properties.

Private respondents, spouses Ching, filed a case of injunction against petitioners alleging that petitioners cannot enforce the judgment against conjugal partnership levied on the ground that the subject loan did not redound to the benefit of the said conjugal partnership. Upon application of private respondents, the lower court issued a temporary restraining order to prevent Magsajo from proceeding with the enforcement of the writ of execution and with the sale of the said properties at public auction.

Issue:

Whether or not loan acquired by PBM from Ayala Investments as guaranteed by Alfredo Ching be redounded to the conjugal partnership of the spouses.

Ruling:

The husband and the wife can engage in any lawful enterprise or profession. While it is

but natural for the husband and the wife to consult each other, the law does not make it a requirement that a spouse has to get the prior consent of the other before entering into any legitimate profession, occupation, business or activity. The exercise by a spouse of a legitimate profession, occupation, business or activity is always considered to redound to the benefit of the family. But an isolated transaction of a spouse such as being guarantor for a third person’s debt is not per se considered as redounding to the benefit of the family. Therefore, to hold the absolute community or the conjugal partnership property liable for any loss resulting from such isolated activity, proofs showing a direct benefit to the family must be presented.

Article 75

The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a)

By: De Jesus, Camille T.

⊳ If there is no agreement between the husband and wife, the property relationship between is absolute community of property.

Kinds of property regimes

The future spouses can agree on either of the following property regimes:

v Absolute community;

v Conjugal partnership;

v Complete separation of property;

v Dowry system, where the wife would bring in property to help the husband in supporting the family, subject to the condition that at the end of the marriage the property or its value shall be returned.

⊳ The marriage settlements must be made before the celebration of the marriage and not, thereafter in order that the same may be valid. In fact, they cannot change it during the marriage except as authorized by law.

Article 76

In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)

By: De Jesus, Camille T.

Uy v. Court of Appeals, G. R. no. 102726

Facts:

⊳ Natividad Calaunan-Uy was common-law wife of the late Menilo B. Uy, Sr. for which they has four children. On October 1990, soon after the death of Menilo, Tshiate Uy and Ramon Uy initiated proceedings for Letter of Administration of the Estate of Menilo. Represented by their children, Natividad moved to hold the proceedings and filed Partition of Properties Under Co-ownership to the Estate of Menilo. A Compromise Agreement was then submitted which was approved and a write of execution was issued. Tshiate claimed that she is the surviving spouse of Menilo by virtue of Hong Kong marriage, she then filed motion contending that said compromise agreement was a patent nullity and prayed that she and her son be allowed to intervene which the court allowed her and settling aside the compromise judgement.

Issue:

⊳ Whether or not property of co-ownership can be claimed by the allege surviving spouse.

Ruling:

⊳ The CA decision was set aside reinstating the order of the trial court. The action for partition is predicated on an alleged co-ownership between Natividad and Menilo, the property evidently acquired during the period of their common-law relationship.

Article 77

By: Maia Caireen R. Rosales-Ademe

Article 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property.

When marriage settlement may be changed?

The general rule is that, the parties cannot change or even modify their property relationship during the marriage. Any modification or change must be made before the celebration of the marriage. Any agreement to the contrary is void.

EXCEPTIONS TO THE RULE:

1. 1. In case of legal separation, the property relationship of the spouses shall be dissolved. But in case of reconciliation between the parties, the final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime

2. 2. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify:

a. The properties to be contributed anew to the restored regime;

b. Those to be retained as separate properties of each spouse; and

c. The names of all their known creditors, their addresses and the amounts owing to each.

3. 3. Another exception is where a spouse without just cause abandons the other. In that case, the other spouse may ask for judicial separation of property. (Article 128, Family Code)

4. 4. There may also be judicial separation of property on the following grounds:

a. That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

b. That the spouse of the petitioner has been judicially declared an absentee;

c. That loss of parental authority of the spouse of petitioner has been decreed by the court;

d. That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

e. That the spouse granted the power of administration in the marriage settlements has abused that power; and

f. That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

5. 5. Finally, Article 136 of the Family Code provides that the spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties

QUINTANA VS. LERMA, 24 PHIL. 285

G.R. No. L-33352, December 20, 1974

MAKALINTAL, C.J.:

FACTS:

● The petitioner filed a complaint for adultery against the respondent

● A complaint¹ against the petitioner for legal separation and/or separation of properties, custody of their children² and support, with an urgent petition for support pendente lite for her and their youngest son

● The respondent's complaint for legal separation is based on two grounds: concubinage and attempt against her life.

ISSUE:

Whether adultery is a good defense against the respondent's claim for support pendente lite.

HELD:

It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership property.

The distinction is material in this case. The support, not only of the spouses but also of the children, shall be taken from the conjugal property during the pendency of the legal separation proceeding.

Article 78

A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code

By: Meneses-Gapac, Xiennia B.

Title IX – Parental Authority

Article 78 (no longer applies)

Due to the reduction of the age of majority to 18 years under RA No. 6809

No minor can get married, otherwise, it is void.

RA 6809 repealed Article 78

Article 79

For the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto.

By: Meneses-Gapac, Xiennia B.

Interdiction

- A legal restraint upon a person incapable of managing his estate, because of mental incapacity, from signing any deed or doing any act to his own prejudice, without the consent of his curator or interdictor.

Persons who have been sentenced with civil interdiction

The law requires that a guardian be appointed for them by a court of competent jurisdiction

A person under civil interdiction cannot execute a document inter vivos, although he can do so mortis causa

Inter vivos - Between the living” A phrase used to describe a gift that is made during the donor's lifetime.

Mortiscausa – “In contemplation of approaching death” A phrase sometimes used in reference to a deathbed gift, or a gift causa mortis, since the giving of the gift is made in expectation of approaching death. A gift causa mortis is distinguishable from a gift inter vivos, which is a gift made during the donor's (the giver's) lifetime.

Civil Interdiction or civil death

Merely a restriction on capacity to act (Article 38, NCC)

Its effects are regulated by the provisions of Article 34 of the RPC:

Article 34 of the RPC

“Civil interdiction shall deprive the offender during the time of his sentence the rights of parental authority or guardianship, either as to the person or property of any ward, or marital authority, of the right to dispose of such property by an act or any conveyance inter vivos.”

Quintana v. Lerma

24 Phil. 285| February 5, 1913

Facts:

Gelasio Lerma appealed from the judgment of the lower court granting his wife, Maria Quintana, a sum of money allegedly due her based on a contract they made for support. The two were married in 1901 and entered into a written agreement of separation in February 1905, renouncing certain rights as against each other, dividing the conjugal property between them and defendant undertaking the duty to provide plaintiff P20-worth of monthly support and maintenance to be given within the first three days of each month.

Defendant claimed in his original answer to the action, that his wife lost her right to support by committing adultery. However, under article 152 of the Civil Code, adultery is not a recognized ground upon which obligation to support ceases. The lower court did not recognize the same defense when defendant reentered it in his amended complaint.

Issue:

Whether or not the written agreement made by plaintiff and defendant was void.

Ruling:

Yes. Under article 1432 of the Civil Code, “in default of express declarations in the marriage contract, the separation of the property of the consorts, during marriage, shall only take place by virtue of a judicial decree, except in the case provided by Article 50.” Therefore, the written agreement was void but the wife still has a right of action against the defendant under this Code.

Article 80.

In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:

1. Where both spouses are aliens;

2. With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

3. With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require formalities for its extrinsic validity (124a)

By: Guiang, Aprilyn M.

Application of the national law principle regardless of the place of celebration of the marriage. The law applies if the spouses are living in the Philippines or abroad, or even if they have properties located in the Philippines or abroad. Their national law follows them wherever they are.

If the spouses are aliens, their national law shall govern their property relationship. National law principle will applies.

Exceptions under paragraph 2 and 3;

Principle of lex situs. Lex situs (latin) means “law of the place where the property is situated”.

Illustration:

X and Y, both Filipinos, were married in the United States. If they enter into any marriage settlement, they shall be governed by Philippine law; hence, they can agree on the conjugal partnership regime, or complete separation or dowry system. If they have no agreement, then, they shall be governed by the principle that their property relationship is one of absolute community. Or, if the agreement is void, the property relationship shall be absolute community of property.

Article 81.

Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriage shall be valid (125a)

By: Guiang, Aprilyn M.

If the marriage does not take place; all stipulations in the marriage settlement would be void because if it otherwise, there would be unjust enrichment of the parties.

Furthermore, under Article 88 of the Family Code, the absolute community of property between the spouses shall commence at the precise moment that the marriage is celebrated.

The rule is not absolute.

There may be stipulations in the marriage settlement which remain valid even if the marriage is not celebrated.

Example:

A stipulation where a natural child may be recognized.

This remains valid even if the marriage is not celebrated because this stipulation does not depend upon the celebration of the marriage for its validity.

Case:

ROSA GUSTILO, Petitioner, v. AUGUSTO GUSTILO et al, Respondents.

G.R. No. L-18038. May 31, 1965

BENGZON, J.:

(Article 72)

Facts:

When Calixto Gustilo died in May 1952, he was survived by his wife Martina Poblador and their four legitimate children Augusto, Josefa, Carlos and Fe.

It appears that in August 1945, the spouses executed a deed of sale to their said children, of almost all of their real properties; and so, in November 1952, Rosa Gustilo, claiming to be an acknowledged natural daughter of Calixto Gustilo, filed this action to annul the sale, and to get the part allegedly corresponding to her, as acknowledged natural daughter, in the estate of Calixto Gustilo. Defendants are his widow and four legitimate children plus two banks, who become mortgagees of some realties.

CFI rendered judgment declaring that Rosa had been acknowledged as natural daughter by Calixto, was fictitious and void. It issued other orders, which, as we see the litigation, become immaterial. Previous to the judgment, the court had decreed the dismissal of the complaint against the two banking institution; and no appeal seems to have been taken therefrom.

Then, the respondents brought the matter to the CA; Hence, reversed the judgment, expressing the opinion that Rosa Gustilo had no interest to protect, nor right to see, because she was not a duly acknowledged natural child.

Issue:

Whether or not Rosa Gustilo can claim her right to the properties of Calixto Gustilo, whom she alleged claimed as her father.

Held:

No, Rosa Gustilo cannot claim her right to the properties of Calixto Gustilo, whom she alleged claimed as her father.

"Art. 278.— Recognition shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing.

Rosa Gustilo has not been recognized in a record of birth, nor in a will. It must be obvious that to be effective, must be one made by Calixto himself; and that the writing must be the writing of Calixto.

Article 80.

This rule shall not apply:

1. Where both spouses are aliens;

2. With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

By: Guiang, Aprilyn M.

If the spouses are aliens, their national law shall govern their property relationship. National law principle will applies.

Exceptions under paragraph 2 and 3;

Principle of lex situs. Lex situs (latin) means “law of the place where the property is situated”.

Illustration:

Article 81.

By: Guiang, Aprilyn M.

If the marriage does not take place; all stipulations in the marriage settlement would be void because if it otherwise, there would be unjust enrichment of the parties.

Furthermore, under Article 88 of the Family Code, the absolute community of property between the spouses shall commence at the precise moment that the marriage is celebrated.

The rule is not absolute.

There may be stipulations in the marriage settlement which remain valid even if the marriage is not celebrated.

Example:

A stipulation where a natural child may be recognized.

This remains valid even if the marriage is not celebrated because this stipulation does not depend upon the celebration of the marriage for its validity.

Case:

ROSA GUSTILO, Petitioner, v. AUGUSTO GUSTILO et al, Respondents.

G.R. No. L-18038. May 31, 1965

BENGZON, J.:

(Article 72)

Facts:

When Calixto Gustilo died in May 1952, he was survived by his wife Martina Poblador and their four legitimate children Augusto, Josefa, Carlos and Fe.

Issue:

Whether or not Rosa Gustilo can claim her right to the properties of Calixto Gustilo, whom she alleged claimed as her father.

Held:

No, Rosa Gustilo cannot claim her right to the properties of Calixto Gustilo, whom she alleged claimed as her father.

"Art. 278.— Recognition shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing.

TITLE IV —

PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Article 82

Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses.

By: Ibanez, Jonathan M.

Article 83

These donations are governed by the rules on ordinary donations established in title III of book III of the civil code, insofar as they are not modified by the following articles.

By: Ibanez, Jonathan M.

Requisites of donations propter nutias.

In order that donations propter nuptias may be valid, the following requisites must be present:

(a) they must be made before the celebration of the marriage;

(b) they must be made in consideration of the marriage;

Donations propter nuptias are governed by the statute of frauds in article 1403 of the civil code as they are agreements based upon the consideration of marriage, other than a mutual promise to marry. Hence, to be enforceable, it must appear in writing pursuant to the statute of frauds. Such writing need not be in a public instrument. It may be in a private writing. This is true with respect to donations in consideration of marriage but not in ordinary donations which require a public instrument and acceptance. (Article 749, new civil code).

Pilapil vs Ibay-Somera, et al. G.R No. 80116,

June 30, 1989

Regalado, J.:

This is a special civil action for certiorari and prohibition to review the decision of the RTC

FACTS:

Imelda Pilapil was married to Erich Geiling in Germany and their marriage bore one child. Geiling eventually filed for divorce in Germany stating the causes of failure of the marriage. Petitioner then filed an action for legal separation, support and separation of property before the RTC Manila. After the promulgation of the divorce decree, Geiling filed two consecutive complaints of adultery against Pilapil for having relationships with Chia and Chua. She asked the court to have her arraignment deferred but to no avail, as well as the motion to quash due to lack of jurisdiction. A temporary restraining order was eventually issued to him from implementing said order.

ISSUE:

Whether or Not a criminal case for adultery which took place after a divorce is barred by the previously acquired decree of divorce.

HELD:

The court ruled on the affirmative side. This was based on two concepts. First, that the civil code of the Philippines recognized a divorce acquired by an alien spouse in another country provided that it is valid based on his national law. The second concept is that adultery requires an offended spouse, which means that marital status is relevant. In the case at bar, Geiling’s divorce decree acquired in Germany is recognized in the Philippines freeing him and Pilapil from their marital bond and responsibility. Since they are validly divorced, Geiling cannot be considered an offended spouse to file an adultery case against Pilapil who had then the right and freedom to enter into another relationships.

VAN DORN vs. ROMILLO, G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner, VS. HON. MANUEL ROMILLO JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON, respondents October 8, 1985

FACTS:

Alice Reyes, the petitioner is a citizen of the Philippines while private respondent Richard Upton is a citizen of the united states. They were married in Hong Kong in 1972 and they established residence in the Philippines. They had two children and they were divorced in Nevada, USA in 1982. The petitioner remarried in Nevada to Theodore Van Dorn. The private responded filed against petitioner stating that the petitioner’s business is a conjugal property of the parties and that respondent is declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada court, where respondent acknowledged that they had no community property as of June 11, 1982.

ISSUE:

Whether or not the private respondent as petitioner’s husband is entitled to exercise control over conjugal assets?

RULING:

The petition is granted. Complaint is dismissed. The policy against absolute divorce cover only Philippine nationals. However, aliens may obtain divorce abroad, which may be recognized in the Philippines provided they are valid according to their national law. From the standards of American law, under which divorce dissolves marriage, the divorce in Nevada released private respondent from the marriage between them with the petitioner. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case as petitioner’s husband entitled to exercise control over conjugal assets. He is estopped by his own representation before said court from asserting his right over the alleged conjugal property.

Pacete vs Carriaga 231 SCRA 321

FACTS:

Concepcion alanis filed a complaint on october 1979, for the declaration of nullity of marriage between her erstwhile husband enrico pacete and one clarita de la concepcion, as well as for legal separation between her and pacete, accounting and separation of property. She averred in her complaint that she was married to pacete on april 1938 and they had a child named consuelo; that pacete subsequently contracted a second marriage with clarita de la concepcion and that she learned of such marriage only on august 1979. Reconciliation between her and pacete was impossible since he evidently preferred to continue living with clarita.

The defendants were each served with summons. They filed an extension within which to file an answer, which the court partly granted. Due to unwanted misunderstanding, particularly in communication, the defendants failed to file an answer on the date set by the court. Thereafter, the plaintiff filed a motion to declare the defendants in default, which the court forthwith granted. The court received plaintiffs’ evidence during the hearings held on february 15, 20, 21, and 22, 1980. After trial, the court rendered a decision in favor of the plaintiff on march 17,1980.

ISSUE:

Whether or not the RTC gravely abused its discretion in denying petitioner’s motion for extension of time to file their answer, in declaring petitioners in default and in rendering its decision on march 17, 1980 which decreed the legal separation of pacete and alanis and held to be null and void the marriage of pacete to clarita.

HELD:

The civil code provides that “no decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not collusion between parties exists. If there is no collusion, the prosecuting attorney shall intervene for the state in order to take care that the evidence for the plaintiff is not fabricated.”

Article 84

If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

By: Gladys Agaid Lambayong

Limitations on donations prior to marriage:

· Absolute community regime

o No limit as to the extent of the donation of the future spouses before or in consideration of the marriage

· Conjugal partnership or complete separation of properties or dowry system

o Limit is only one-fifth of their present property

Illustration:

Before the marriage, A had properties valued at Php500,000.00. He entered into a marriage settlement with B, his future spouse, where a conjugal partnership was agreed upon. The law allows A to give only 1/5 of such properties to B before and in consideration of the marriage.

Article 85

Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the done shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the done shall be entitled to the excess.

By: Gladys Agaid Lambayong

Rules if property donated is encumbered:

· Even if there is an existing lien or encumbrance on the property donated, the donation is still valid because the donor is still the owner of the encumbered property.

· If the mortgage is foreclosed and sold at a lesser price, the donee is not liable for the deficiency.

· If it sold for more, the donee is entitled to the excess.

Illustration:

The property donated is worth Php100,000.00. It was sold for Php70,000.00. The rule is that, the donee is not under obligation to pay the deficiency. However, if the property is sold for Php110,000.00, the done is entitled to the excess amount of obligation, the Php10,000.00

Below is a case originally listed in Article 87 of the Family Code

Gercio v. Sunlife Assurance Co. of Canada, 48 Phil. 53

G.R. No. 23703, September 28, 1925

Plaintiff-Appellee: Hilario Gercio

Defendants: Sun Life Insurance of Canada, et al.

Ponente: Justice Malcolm

The complaint filed by the plaintiff against the defendants was in the nature of madamus, to compel the defendant company to change the beneficiary in the policy by the defendant company with the plaintiff’s former wife, Andrea Zialcita, as beneficiary.

FACTS:

Defendant company issued a twenty-year endowment insurance policy on the life of the plaintiff. By its terms, the insurance company agreed to insure the life of the plaintiff for the sum of Php2,000 to be paid on February 1, 1930, or if the plaintiff should die before the said date, then to his wife, defendant Zialcita, should she survive him. The policy did not include any provision reserving to the insured the right to change the beneficiary.

Towards the end of 1919, defendant Zialcita was convicted of the crime of adultery. In 1920, a decree of divorce was issued which completely dissolved the bonds of matrimony between the plaintiff and his wife.

On March 4, 1922, plaintiff formally notified the defendant company that he had revoked his donation in favor to his former wife, Zialcita, and had designated his present wife, Adela Garcia de Gercio, as the beneficiary of the policy. The defendant company refused to change the plaintiff’s beneficiary.

The lower court decided against the defendant Zialcita. The judgement of the trial court was in favor of the plaintiff and ordered the defendant company to eliminate from the insurance policy the name of Andrea Zialcita as beneficiary.

ISSUE:

Can the plaintiff change the beneficiary in the insurance policy.

RULING:

NO. The Court applied the general principles of law in deciding the case to supplement the deficiencies in the Code of Commerce, Civil Code, and Insurance Act. The Code of Commerce has no provision whether to permit or prohibit the insured to change the beneficiary. The Civil Code has no provisions which relate directly and specifically to life-insurance contracts or to the destination of life insurance proceeds. The Insurance Act applies, likewise, has no provision either permitting or prohibiting the insured to change the beneficiary. To that end, the Court have gathered the rules which follow from the best considered American authorities. In adopting these rules, the Court do so with the purpose of having the Philippine Law of Insurance conform as nearly as possible to the modern Law of Insurance as found in the United States proper. The wife has an insurable interest in the life of her husband. The beneficiary has an absolute vested interest in the policy from the date of its issuance and delivery. So when a life insurance is taken out by the husband in which the wife is named as beneficiary, she has a subsisting interest in the policy. If the husband wishes to retain to himself the control and ownership of the policy he may so provide in the policy. But if the policy contains no provision authorizing a change of beneficiary without the beneficiary's consent, the insured cannot make such change. As to the effect produced by the divorce, the Philippine Divorce Law, Act No. 2710, merely provides in section 9 that the decree of divorce shall dissolve the community property as soon as such decree becomes final. Unlike the statutes of a few jurisdictions, there is no provision in the Philippine Law permitting the beneficiary in a policy for the benefit of the wife of the husband to be changed after a divorce. It must follow, therefore, in the absence of a statute to the contrary, that if a policy is taken out upon a husband's life the wife is named as beneficiary therein, a subsequent divorce does not destroy her rights under the policy.

The motion to change the beneficiary of the insured was dismissed.

Article 86

A donation by reason of marriage may be revoked by the donor in the following cases:

1. If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;

2. When the marriage takes place without the consent of the parents or guardian, as required by law;

3. When the marriage is annulled, and the donee acted in bad faith;

4. Upon legal separation, the donee being the guilty spouse;

5. If it is with a resolutory condition and the condition is complied with;

6. When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a) (Art. 765, NCC)

By: Meneses-Gapac, Xiennia B.

1. If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81

The celebration of the marriage is a condition sine qua non for the validity of a donation propter nuptias

The donation may either be made by one spouse in favor of the other. It may be made by a stranger

If the donation is made by a stranger:

The celebration of the marriage is a condition sine qua non for the validity of a donation propter nuptias

The donation may either be made by one spouse in favor of the other. It may be made by a stranger

propter nuptias – “Donations by reason of marriage” - are those which are made before the wedding celebration, in consideration of the same, and in favor of one or both of the future spouses.

2. When the marriage takes place without the consent of the parents or guardian, as required by law;

A, the man, married B, the woman, while the latter is at the age of 20. The consent of B’s parent’s was not given. Before their marriage, B donated properties to A. Under (2) of this Article, the donation can be revoked at the instance of B.

3. When the marriage is annulled, and the donee acted in bad faith;

If the donation was made by the spouse in favor of another and the donee is in bad faith, the donation is revoked by operation of law pursuant to Articles 43(3), 44, and 50 of the FC. There is no need, therefore, for the spouse who acted in good faith or the innocent spouse to file an action for revocation.

4. Upon legal separation, the donee being the guilty spouse;

Under Article 64 of the FC, after the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or her in favor of the offending spouse. The law, however, requires that the action for revocation be brought within five (5) years from the finality of the decision.

The action by the innocent spouse can be waived because if he/she doe not file such action for revocation, it would prescribe. His or her inaction can mean waiver of such right.

5. If it is with a resolutory condition and the condition is complied with;

A resolutory condition is one by which the happening of an event extinguishes an obligation.

In an obligation, subject to a resolutory condition, the thing is delivered to the other part and the latter acquires ownership over the same, subject to the condition that if the event happens, the obligation is extinguished.

6. When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a) (Art. 765, NCC)

Article 765 of the NCC provides for the following acts of ingratitude which may be grounds for revocation of a donation by reason of marriage:

If the donee should commit some offense against the person, the honor, or the property of the donor, or his wife or children under his parental authority;

Article 87

Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a)

By: Meneses-Gapac, Xiennia B.Article 87

By: Meneses-Gapac, Xiennia B.

Husband and wife cannot donate to one another

This is to prevent the weaker spouse from being influenced by the stronger one.

The law also seeks to protect the creditors, as they would be defrauded if the law allow them to donate to one another.

Exception:

The spouses can give to one another gratuitous advantage during family rejoicings (Christmas, birthdays, anniversaries, etc)

Prevents the possibility that one spouse may influence the other and that if in a common-law relationship, they are allowed to donate to one another during the marriage, then they would be placed in a better position than the spouse living in a legal union.

Cohabitation is not limited to sexual intercourse for even without sexual intercourse, there can be cohabitation.

The spouses cannot also sell to one another, except:

Where a separation of property was agreed upon in the marriage settlements

When there has been a judicial separation of property (Art. 1490, NCC)

Other prohibitions:

The husband and wife cannot enter into a universal partnership (Art. 1782, NCC)

This is virtually a donation to one another

The husband and wife cannot lease to one another (Art. 1646, NCC)

A spouse may be beneficiary of insurance

The prohibition against donations during the marriage does not include a spouse being the beneficiary of an insurance contract over the life of the other spouse.

Arbaca v Tabancura Vda. de Batocael
G.R. No. 146683 | Nov. 22, 2001

Facts:

Francisco Comille and his wife Zosima Montallana became the registered owners of Lot No. 437-A located at Balintawak St. and Rizal Avenue in Dipolog City, Zamboanga del Norte in January 1956. Zosima died in 1980 hence Francisco and his mother in law executed a deed of extrajudicial partition with waiver of rights, where the latter waived her share consisting of ¼ of the property in favor of Francisco.

Since Francisco do not have any children to take care of him after his retirement, he asked Leticia, his niece, Leticia’s cousin, Luzviminda and Cirila Arcaba, the petitioner, who was then a widow and took care of Francisco’s house as well as the store inside. According to Leticia, Francisco and Cirila were lovers since they slept in the same room. On the other hand, Erlinda Tabancura, another niece of Francisco claimed that the latter told her that Cirila was his mistress. However, Cirila defensed herself that she was a mere helper who could enter the master’s bedroom when Francisco asked her to and that Francisco was too old for her.

She denied having sexual intercourse with Francisco. When the nieces got married, Cirila who was then 34 year-old (widow) started working for Francisco who was 75 year old (widower). The latter did not pay him any wages as house helper though her family was provided with food and lodging. Francisco’s health deteriorated and became bedridden. Tabancura testified that Francisco’s only source of income was the rentals from his lot near the public streets.

Issue:

Whether or not the deed of donation inter vivos executed by Francisco in Arcaba’s favor was valid.

Ruling:

The court in this case considered a sufficient proof of common law relationship wherein donation is not valid. The conclusion was based on the testimony of Tabancura and certain documents bearing the signature of “Cirila Comille” such as application for business permit, sanitary permit and the death certificate of Francisco. Also, the fact that Cirila did not demand her wages is an indication that she was not simply a caregiver.

Art. 88.

The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (145a)

By: Perolina, Nil Jay V.

This law erased the anomalous situation in Article 145 of the Civil Code which provides that the conjugal partnership shall commence precisely on the date of the celebration of the marriage.

If we are to interpret it literally, then even before the actual celebration of the marriage, the parties already have a property relationship in operation.

For example, A and B’s marriage will be solemnized at 7 o’clock in the evening of December 9, 1999, does it mean that as early as 7 o’clock in the morning of that day, they are already governed by a property relationship?

That would be anomalous since a property can be acquired by onerous title prio to the marriage would be considered as part of the property relationship. The present law has clarified the doubt and the possible anomalous situation by saying that the absolute community of property shall commence at the precise moment that the marriage is celebrated.

Art. 89.

No waiver of rights, interest, shares and effects of the absolute community of property during the marriage can be made except in the case of judicial separation of property.

When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition to the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (146a)

By: Perolina, Nil Jay V.

The law confines to the fact that during the existence of the marriage, there can be no changes in the property relationship. In order that there may be modifications of the same, they must be done prior to the celebration of the marriage; otherwise, the same would be void, except if they are done by judicial action. Such modifications include any waiver of rights, interests, shares and effects of the absolute community of properties.

Art. 90.

The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. (n)

By: Perolina, Nil Jay V.

The law provides for the property regime in case of common-law relationships or void marriages. In fact, the Supreme Court in Valdez v RTC of Quezon City, et al., G.R. No. 122749, July 31, 1996, 72 SCAD 967, said that the property relationship in void marriages ab initio is co-ownership and if ever there is a declaration of nullity of a void marriage, even if based on psychological incapacity, the dissolution of the properties or distribution shall be based on the law on co-ownership where the parties shall be share and share alike.

It shall be noted, however, that the law abhors cohabitation in violation of the marriage vows. If frowns upon immorality. It protects the legitimate family, for if the other party in a cohabitation like in Agapay were allowed to get one-half of the properties upon termination of such relationship even without any material contribution, then, it would countenance immorality aside from causing undue prejudice to the legitimate family.

Case:

G.R. No. 122749

Valdez v RTC of Quezon City, et al.

July 31, 1996, 72 SCAD 967

Vitug, J.

Facts:

Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdez sought the declaration of nullity of the marriage pursuant to Article 36 of the Family code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102).

Consuelo Gomez sought a clarification of that portion of the decision directing compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without marriage." Parenthetically, during the hearing of the motion, the children filed a joint affidavit expressing their desire to remain with their father, Antonio Valdez, herein petitioner.

Issue:

Whether or not petitioner’s contention is correct

Ruling:

No, considering that Article 147 of the Family Code explicitly provides that the property acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares, plaintiff and defendant will own their "family home" and all their properties for that matter in equal shares.

In the liquidation and partition of properties owned in common by the plaintiff and defendant, the provisions on ownership found in the Civil Code shall apply.

This particular kind of co-ownership applies when a man and a woman, suffering no illegal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38"7 of the Code.

Section 2:

What Constitutes Community Property

Article 91

Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of celebration of marriage or acquired thereafter.

By: Pomintel-Acuno, Florabel

The law provides for two (2) kinds of properties that shall form part of the absolute community of properties; namely,

1. All properties owned by the spouses at the time of the celebration of the marriage;

2. All properties acquired after the celebration of the marriage

• Absolute community of properties is in keeping with the custom in majority of the Filipino families

• The husband and wife is the co-owner of the properties brought into and acquired during marriage.

• The law provides that even the parties are governed by the absolute community, they may agree that some properties be exempted from its coverage

Article 92

The following shall be excluded from the community property:

1. Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property;

2. Property for personal and exclusive use of either spouse; however, jewelry shall form part of the community property;

3. Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property.

By: Pomintel-Acuno, Florabel

Ø this will form part of the exclusive properties

Ø however, this rule is not absolute because the donor or grantor may provide in the deed of donation that it shall form part of the absolute community of the spouses

Ø Sample of personal and exclusive property are perfumes, shoes, clothes

Illustration:

A and B were married. They had 4 legitimate children. A died, hence B married C. But before their marriage, B acquired several properties. These constitute her exclusive properties because these were acquired by one who has legitimate children by former marriage.

* the purpose of the law is to protect the legitimate and interest of the legitimate children in the former marriage.

* the rule is equally applicable and with more reason if in the previous marriage, properties were acquired and there were legitimate children. If the properties in the first and second marriage would be mixed, it would be prejudicial to the children of the two marriages.

Article 93

The property acquired during the marriage is presumed to belong to the community, unless it is provided that it is one of those excluded therefrom.

By: Pomintel-Acuno, Florabel

Ø The law merely emphasizes the rule on absolute community of properties acquired during the marriage form part of their absolute communities of properties.

Ø It shall be exclusive property, provided that there are enough proof, if it is acquired by gratuitous title where no provision exist that it shall form part of the absolute community

Ø It is exclusive, if proven, that it is for personal and exclusive use of either spouse

CASE DIGEST:

Case: Josefina V. Nobleza, Petitioner

Shirley B. Nuega, Respondent

Citation: G.R. No. 193098

Date: March 15, 2015

Ponente: Justice Villarama Jr.

FACTS:

Respondent Shirley B. Nuega was married to Rogelio A. Nuega on September 1, 1990. Sometime in 1998, while they are not yet married, Shirley sent money to Rogelio for the purchase of residential lot in Marikina where they planned to eventually build their home.

On September 13, 1989, Rogelio purchased the subject house and lot for One Hundred Two Thousand Pesos (P102,000.00)6 from Rodeanna Realty Corporation. And sometime in 1989, Shirley settled the balance for the equity over the subject property.

One year after their marriage, Shirley went back to Israel for work. While overseas, she received information that Rogelio had brought home another woman, Monica Escobar, into the family home. In June 1992, Shirley filed two cases against Rogelio: one for Concubinage before the Provincial Prosecution Office of Rizal, and another for Legal Separation and Liquidation of Property before the RTC of Pasig City.

Shirley then advised the interested buyers - one of whom was their neighbor and petitioner Josefina V. Nobleza - of the existence of the cases that she had filed against Rogelio and cautioned them against buying the subject property until the cases are closed and terminated. But still, Rogelio, on his own and without the consent of herein respondent as his spouse, sold the subject property via a Deed of Absolute Sale dated December 29, 1992 - or during the subsistence of a valid contract of marriage.

ISSUE:

WON the sale of the subject property is void.

HELD:

Yes the sale is void. The trial court held that while the TCT shows that the owner of the subject property is Rogelio alone, respondent was able to prove at the trial court that she contributed in the payment of the purchase price of the subject property.

The nullity of the sale made by the husband is not premised on proof of respondent’s financial contribution in the purchase of the property. Actual contribution is not relevant in determining whether a piece of property is community property for the law itself defines what constitutes community property which is stated in Article 91 of the Family Code.

Since the subject property does not fall under any of the exclusions provided in Article 92, it therefore forms part of the absolute community property of the spouses. Finally, consistent with our ruling that Rogelio solely entered into the contract of sale with petitioner and acknowledged receiving the entire consideration of the contract under the Deed of Absolute Sale, Shirley could not be held accountable to petitioner for the reimbursement of her payment for the purchase of the subject property.

WHEREFORE, in view of the foregoing, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals dated May 14, 2010 and July 21, 2010, respectively, in CA-G.R. CV No. 70235 are AFFIRMED.

Article 94

The absolute community of property shall be liable for:

1. The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support;

2. All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other;

3. Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

4. All taxes, liens, charges and expenses, including major or minor repairs, upon the community property;

5. All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family;

6. Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement;

7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;

8. The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement;

9. Ante-nuptial debts of either spouse other than those falling under paragraph 7 of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict. In case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

10. Expenses and litigation between the spouses unless the suit is found to be groundless.

If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph 9, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

By: Rosales, Gayle Marion R.

Support of the family; source.

The reason for paragraph 1 of this Article is found in Article 195 of the FC which requires the spouses and the children, whether legitimate, or illegitimate to support each other.

Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education mentioned shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from the place of work.

In case of illegitimate children, the rule is that their support shall come from the separate property of each spouse if they have illegitimate children. If they have no separate properties or if there are, but not sufficient, then the absolute community of property shall advance the support, but the same shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or the conjugal partnership.

Obligations redounding to benefit of family.

All debts contracted by one spouse with or without the consent of the other are chargeable against the community of property. What is important is that they must have redounded to the benefit of the family or at least community of property so that they shall be liable to the extent that the debts may have benefited the family.

Ante-nuptial debts.

A spouse owns a house and lot; during the time that he is not yet married, he borrowed money to repair the same. That loan has not yet been paid at the time of the marriage. If he later on gets married and the house and lot becomes part of the absolute community of property, such ante-nuptial debt shall be borne by the absolute community of property as the loan redounded to the benefit of the family.

Ante-nuptial debts which do not redound to the benefit of the family shall not be borne by the absolute community of property. If that spouse who contracted it has no separate property to answer the same, then, the absolute community of property shall answer the same, but this shall be treated as advances from the absolute community of property, chargeable against his share upon liquidation of the absolute community of property or conjugal partnership.

This is true also if one spouse is held civilly liable for a quasi-delict or crime. If the spouse liable does not have sufficient properties or if his properties are not sufficient to answer for the same, then, the same shall be advanced by the conjugal partnership or absolute community of property. Such advances shall be deducted from his/her share of said community of property or conjugal partnership at the time liquidation.

Illustration:

If x, the husband of Y, hits a pedestrian and kills the latter, and when he is suit for damages, he is held liable for the same, the foregoing rule shall apply.

The law says that if the community property is not sufficient to answer for all the liabilities aside from those mentioned in paragraph 8, the spouses shall be liable solidarily with their separate properties.

G.R. No. 137548 September 3, 2007

HEIRS OF THE LATE DOMINGO N. NICOLAS, petitioners,

vs.

METROPOLITAN BANK & TRUST COMPANY, respondent.

SANDOVAL-GUTIERREZ, J.:

FACTS:

Spouses Domingo and Josefa Nicolas are the registered owners of two (2) parcels of land located at Sanville Subdivision, Quezon City. On these lots is the residential house of spouses Nicolas and their two children, herein petitioners. These properties are conjugal.

On May 19, 1986, Domingo Nicolas passed away.

On June 11, 1988, a fire gutted the office of the Register of Deeds of Quezon City. Among the records destroyed were the original copies of the spouses’ properties.

Sometime in 1988, Josefa Nicolas, the surviving spouse of Domingo, filed with the Land Registration Administration (LRA) an application for reconstitution of the two (2) land titles which was approved and ordered for the reconstitution of the destroyed TCTs but only in the name of applicant Josefa Nicolas.

In 1998, petitioners learned that their mother mortgaged the lots with Respondent Metropolitan Bank & Trust Co.; that the mortgage had been foreclosed; that respondent had the land titles consolidated in its name; and that respondent filed with the Regional Trial Court (RTC), Branch 77, Quezon City a petition for the issuance of a writ of possession which was granted.

Petitioners then filed with the RTC, Branch 22, Quezon City Civil Case for Annulment of Reconstituted Titles, Mortgage and Sale at Public Auction which is still a pending trial. They also filed a motion to quash the writ of possession, but it was denied.

Thereupon, they filed with the Court of Appeals a petition for certiorari but was dismissed.

It held that the trial court, in issuing the writ of possession in favor of the respondent, did not commit grave abuse of discretion amounting to lack or excess of jurisdiction considering that the trial court has the ministerial task to issue such writ.

Petitioners seasonably filed a motion for reconsideration, but this was denied. Hence, they contend that the Court of Appeals erred in dismissing their petition

ISSUE:

Whether or not that the writ of possession issued to Respondent METROPOLITAN BANK & TRUST COMPANY shall apply only to such portion of the lots pertaining to Josefa Nicolas and not the entire lot co-owned by the late Domingo Nicolas

RULING:

Petitioners as children and, therefore, compulsory heirs of spouses Nicolas, acquired ownership of portions of the lots as their legitime upon the death of their father or prior to the foreclosure of mortgage and the filing by the respondent of its petition for the issuance of a writ of possession.

The petition is granted. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 49926 is MODIFIED in the sense that the writ of possession issued by the RTC, Branch 77, Quezon City in LRC shall apply only to such portion of the lots pertaining to Josefa Nicolas as may be determined in Civil Case No. Q-98-34312 or in any other proper proceeding which petitioners may file.

Article 95

Gambling is never allowed by law. In case of losses incurred by one of the spouses, s/he shall answer the same with his/her exclusive properties. This is to encourage it as it tends to dissipate the properties of the family. If a spouse, however, wins, the winnings would form part of the absolute community of properties, because they are considered as earnings or properties acquired during the marriage.

By: Rosales, Gayle Marion R.

SYSTEM OF ABSOLUTE COMMUNITY

ARTICLE 96 & ARTICLE 97

Reported by DONA M. VALBUENA #17

ARTICLE 96 – The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to the recourse of the court by the wife for proper remedy, which must be availed within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance without the authority of the court or written consent of the spouse. In the absence of such authority, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, as may be perfected as binding contract upon the acceptance of the other spouse or authorization by the court before the offer is withdrawn either or both the offerors.

DIFFERENCES IN THE PROVISIONS OF CIVIL CODE & FAMILY CODE REGARDING ABSOLUTE COMMUNITY OF PROPERTIES

CIVIL CODE

FAMILY CODE

Husband is the designated administrator of the conjugal partnership property

(Art. 165. The husband is the administrator of the conjugal partnership," in view of the fact that the husband is principally responsible for the support of the wife and the rest of the family. If the conjugal partnership does not have enough assets, it is the husband's capital that is responsible for such support, not the paraphernal property. Responsibility should carry authority with it.) - G.R. No. 92245 June 26, 1991 (Melania Roxas versus CA & Antonio M. Cayetano)

Joint administration and enjoyment of community property by husband and wife.

In case of disagreement, the husband’s decision prevails, but the wife could question such decision within 5 years from the date of contract implementing such decision. After the period, the action shall prescribe.

A case to help illustrate the provisions of Article 96 of FC

G.R. No. 92245 June 26, 1991

MELANIA A. ROXAS, petitioner,
vs.
THE HON. COURT OF APPEALS and ANTONIO M. CAYETANO, respondents.

PARAS, J.:

FACTS OF THE CASE

Husband and wife Antonio S. Roxas and Melania A. Roxas were already estranged and living separately. Antonio Roxas entered into a lease contract their conjugal property with Antonio M. Cayetano. Subject property is located in Quirino Highway, Novaliches, Quezon City. The husband did not secure the consent of his estranged wife. The case was dismissed by the RTC judge on the ground that it failed to satisfy the test of sufficiency or lack of cause of action.

Aggrieved after her MR was dismissed by the RTC Judge, Melania Roxas appealed directly to the Supreme Court, but SC referred the matter to the Court of Appeals which affirmed in toto the assailed RTC Order.

ISSUE:

1. Whether or not the husband as the administrator has the right to dispose of, sell, or alienate their conjugal property without prior consent of the wife?

2. Whether or not Melania Roxas has any cause of action?

HELD:

The Court construed that the concept of encumbrance includes lease and other restrictions on use.

1. No. The Court held that under the provisions of Art. 166 of NCC “unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife's consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same.”

2. Yes. The Court held that under Article 173 of the New Civil Code, the wife may, during the marriage and within ten years from the transaction questioned, ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent is so required. Melania Roxas has a cause of action, the Court remanded the case to the trial court.

Article 97.

Either spouse may dispose by will of his or her interest in the community property.

The law authorizes the disposition by will of the interest of one spouse. One attribute of ownership is the right to dispose the property.

The disposition does not require the consent of the other spouse because the same can take effect only after the death of the testator.

Spouses can claim only equal part of the conjugal property.

Article 98

Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress.

By: Calano, Ernest Ryan R.

The law authorizes the spouses to dispose of by will his or her share in the community property. This right of disposition is a recognition of the right of ownership over such interest in the said property, but the heir will receive that portion allotted to the spouse, who executed the will in his favor, when there is liquidation and distribution of the properties.

This law must be distinguished from Article 97 of the Family Code. It prohibits a spouse from donating any community property without the consent of the other. In Article 97, the law allows either spouse to dispose by will of his or her interest in the community property.

Article 99

The Absolute community terminates:

1. Upon the death of either spouse;

2. When there is a decree of legal separation;

3. When the marriage is annulled or declared void; or

4. In case of judicial separation of property during the marriage under article 134 to 138

By: Calano, Ernest Ryan R.

G.R. No. 29168; December 29, 1928

ADOLFO AENLLE, applicant-appellant,
vs.
CLEMENTINA MARIA BERTRAND RHEIMS, claimant-appellee.
PHILIPPINE GUARANTY CO., INC., defendant-appellant.

STREET, J.;

This is an appeal from a decision of the Court of First Instance of Manila in cadastral expediente No. 43 (G. L. R. O. Record No. 204), whereby lots Nos. 16 and 17, block 1421, on Lamayan Street, district of Santa Ana, Manila, were declared to belong in undivided halves to Adolfo Aenlle and Clementina Maria Bertrand Rheims, in the character of conjugal property, and wherein it was further declared that the Philippine Guaranty Co., Inc., is the owner of a mortgage upon the undivided half pertaining to Aenlle in said property, with appropriate orders for the rectification of the Torrens certificate to conform with the declarations aforesaid. The appeal in this instance is prosecuted by the applicant, Adolfo Aenlle, from so much of said decision as declares said lots to pertain to the conjugal estate and as denies to him the exclusive ownership thereof, subject to the mortgage in favor of the Philippine Guaranty Co., Inc.; while the last named entity appeals from so much of the decision as declares that its mortgage constitutes a charge only upon the undivided half of Adolfo Aenlle.

The facts necessary to an understanding of the case are briefly these: The principal litigants in the case, Adolfo Aenlle and Clementina Maria Bertrand, were married on November 22, 1886, in London, England. After living together for many years the pair separated; and on July 7, 1917, the wife procedure a decree in the District Court of Washoe County, State of Nevada, U. S. A., purporting to divorce her from her husband. Returning to the Orient she contracted marriage, on February 10, 1919, with one George Rheims, at Victoria, Hongkong, China.

ISSUE: Whether or not the granting of said decree could not affect the lien of the Philippine Guaranty Co., Inc.?

HOLDING:

The appealed judgment was modified to the extent of declaring the mortgage in favor of the Philippine Guaranty Co., Inc., to be a charge upon the entire property in the two lots, Nos. 16 and 17, including improvements. As thus modified the judgment is affirmed, without costs. So ordered.

It is a rule laid down in Adolfo Aenlle v. Maria Rheims and Phil Guaranty Co.,, that the termination of the community property must be registered so that the third persons may not be prejudiced, as when the surviving spouse enters into a contract involving the community property after the death of the other spouse.

Speaking of prejudice to third persons, if after the death of one of the spouses, the surviving spouse sells properties of the community property, the innocent purchaser for value and in good faith must be amply protected. If any action is to be brought, it must be done against the surviving spouse.

One of the legal consequences of legal separation if the termination of the community property of property. However, if the parties reconcile, they are free to revive the same or to agree on a different property regime.

Note that the modes of termination of the absolute community of properties are exclusive in nature. There is no other way, like for example, in extra judicial partition between the parties.

The modification of the community property must be done before the celebration of marriage. Thereafter, or during the marriage, any modifications or changes in the community property must be done with judicial intervention.

As a consequences of the dissolution of the absolute community properties, whatever is acquired by one of the spouses thereafter belongs to him/her exclusively. At the same time, debts contracted thereafter are answerable by him/her exclusively.

Article 100.

The separation in fact between husband and wife shall not affect the regime of absolute community except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share. (178a)

By: Laurente, Ivy M.

ILLUSTRATION

A and B are married. B, without any justifiable reason, left the conjugal wedding. She cannot ask for support. But if she left the conjugal dwelling because she is being maltreated, insulted by her husband, A; then, she can ask for the support.

Suppose there is a need to sell or encumber the property of the spouses where the consent of the other is necessary and it cannot be obtained because of the fact that B has left the conjugal dwelling. Then, A can go to court and ask for judicial authorization for such sale. The authorization shall be sufficient substitute for such consent.

There are other consequences of the separation in fact of the spouses, such as:

(1) The separate properties of the husband and wife shall be solidarily liable for the support of the family if there are no sufficient properties of the community property.

(2) The present spouse may petition the court that he be authorized to administer ad encumber specific separate properties of the other spouse and use the fruits to satisfy his or her share.

ILLUSTRATION

A and B are married. A left the conjugal dwelling without justifiable cause. B can ask for judicial authority to administer some properties of B and use the fruits to satisfy A’s share.

If the husband brings a concubine in the conjugal dwelling, maltreats her, insult her, or forces her to live with persons whose habits, character, and language are offensive to her dignity, or compels her to be merely subordinate to his mother, the same may justify the wife live separately from him and pray to separate maintenance for her.

Spouses Ricky and Anita Wong, et al. V IAC, et al.

G.R. No. 70082, August 19, 1991

PONENTE; FERNAN, C.J.:

Facts:

Romarico and Katrina are married with 3 children, but most of the time of their marriage, they are no longer living together and the lived separately.

Spouses Ricky and Anita Wong filed a complaint against Romarico and Katrina regarding the indebtedness of Katrina. In 1972, Katrina entered into a contract with Anita Wong concerning the consignment to her pieces of jewelry worth P321,830.95.

Unfortunately, Katrina failed to return the said pieces of jewelry. Subsequently, Anita demanded the payment. Following the demand, Katrina issued a P55,00.00 bouncing check. Katrina was sued criminally, but since the obligation is considered purely civil in nature, a suit for the collection of money was filed against her ordering Katrina to pay the value of the jewelry, including interest and other expenses.

When the judgement became final and executory, the parcel of land that was sold on a public auction, was levied upon.

Issue:

(1) whether or not the property is conjugal

(2) whether the property is liable for the indebtedness of Katrina.

Held:

Since the property was acquired during the marriage, it was considered as conjugal , even though they are already living separately. While there is a proof that Romarico acquired the properties with money he had borrowed from an officemate, it is unclear where he obtained the money to pay the loan. If he paid it out of his salaries, then the money is part of the conjugal assets and not exclusively his. The presumption of the conjugal nature of properties subsists in the absence of clear, satisfactory, and convincing evidence to overcome said presumption or prove that the properties are exclusively owned by Romarico. In the determination of the nature of a property acquired by a person during coverture, the controlling factor is the source of the money utilized in the purchase.

Although it is considered as conjugal, the said property cannot be used to fulfil Katrina’s indebtedness since her obligation was not shown by the petitioners to be one of the charges against conjugal partnership.

Also, Katrina’s rights over the properties are merely inchoate prior to the liquidation of the conjugal partnership, the consent of her husband and her authority to incur such indebtedness had not been alleged in the complaint and proven at the trial.

Under the Civil Code (before the effectivity of the Family Code on August 3, 1988), a wife may bind the conjugal partnership only when she purchases things necessary for the support of the family or when she borrows money for the purpose of purchasing things necessary for the support of the family if the husband fails to deliver the proper sum; when the administration of the conjugal partnership is transferred to the wife by the courts or by the husband, and when the wife gives moderate donations for charity. Since it was proven that none of the provisions was established regarding Katrina’s indebtedness, the parcel of land cannot be used as a payment to fulfill Katrina’s obligation.

Article 101

If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (178a)

By: Laurente, Ivy M.

Abandonment has been defined in Partosa-Jo v. CA,216 SCRA 692.

“Abandonment implies departure of one spouse with intent never to return, followed by prolonged absence without just cause and without providing for means although able to do so. There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. The physical separation of the parties, coupled by the refusal by Jose Jo to give support to Prima, sufficed to constitute abandonment as a ground for legal separation of their conjugal property. Aside from this, he admittedly cohabitated with other women and have not established just cause for his refusal to comply with his duties as husband.”

Remedies in case of abandonment;

Article 101 provides for the remedies of a spouse in case of abandonment by the other such as:

(a) Petition for receivership;

(b) Petition for judicial separation of property;

When the spouse has been granted the authority to administer the community property, he/she cannot sell the same without the authority of the court. Selling is an act of dominion which requires the authority of the court or the consent of the other spouse. If there is no authority of the court or consent of the other spouse, the sale is void.

When there is abandonment?

There is abandonment by one spouse when he/she left the conjugal dwelling without any intention of returning and when he/she no longer complies with his/her marital, parental and property relations with the family.

(a) he/she left the conjugal dwelling for a period of three months

(b) He/she failed within three months to give any information as to his or her whereabouts.

If the spouse left for abroad to look for a job but he communicates with the present spouse and gives support to the family, there is no abandonment.

SECTION 6. Liquidation of the Absolute Community Assets and Liabilities

Article 102.

Upon dissolution of the absolute community regime, the following procedure shall apply;

1. An inventory shall be prepared, listing separately all the properties of the absolute community and exclusive properties of each spouse.

2. The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarity liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94.

3. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

4. The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

5. The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51.

6. Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children

By: Sarmiento, Sheryl P.

Community property to answer for all debts.

• All debts of the absolute community are to be paid out of its assets. If the community is not sufficient, then the separate properties of the spouses shall be answerable provided that such debts have been contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other.

• If the debts and obligations did not benefit the family and were contracted without the consent of the other spouse, said spouse shall bear such debts alone.

May a husband be held liable for the debts of his wife which were incurred without his consent and which did not benefit the conjugal partnership?

No. The husband can not be held liable for his wife’s obligations. In order to bind the conjugal partnership and its properties, the debts and obligations must be for the benefit of the conjugal partnership and that the husband must consent with his wife’s engaging in business. (Johnson Inc. v CA, et al.,)

Rules after payment of debts.

1. After the payment of all the obligations of the community property, the net remainder shall be divided between them, unless the spouses, in their marriage settlements, agreed on another division of the net assets or there has been a waiver of such share.

2. The presumptive legitime of the legitimate common children shall be delivered upon partition. However, they shall be still entitled to inherit from their parents upon their death.

3. In the absence of an agreement in the partition of the properties, the conjugal dwelling shall be delivered to the spouse with whom majority of the children choose to remain.

Article 103

Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

By: Sarmiento, Sheryl P.

Duty of the surviving spouse.

1) Liquidates the community property upon termination of the marriage by death

2) If no judicial settlement proceeding is instituted, the surviving spouse must liquidate the community property within one (1) year from the death of the deceased whether judicially or extra-judicially

What is the effect if the surviving spouse failed to liquidate the community property and contracts a marriage?

Ø The subsequent marriage shall be governed by the regime of mandatory complete separation of property.

Ø Article 102 Par (5) requires that the presumptive legitimes of the legitimate common children shall be delivered upon the liquidation of the community property.

G.R. No. 102692 September 23, 1996

JOHNSON & JOHNSON (PHILS.), INC., petitioner,
vs.
COURT OF APPEALS and ALEJO M. VINLUAN, respondents.

PANGANIBAN, J

FACTS

• The petitioner filed a motion against the spouses Delilah A. Vinluan, owner of Vinluan Enterprises, and her husband Capt. Alejo M. Vinluan for collection of a sum of money with damages.

• The defendant, Delilah Vinluan, purchased products of the corporation, as she was also engaged in the business of retailing Johnson products, among others. The defendants, under the name and style of "Vinluan Enterprises," thus incurred an obligation of P235,880.89, for which she issued seven (7) Philippine Banking Corporation checks of varying amounts and due dates however the checks bounced and dishonored for having insufficient funds.

• Several demands for payment were made by the plaintiff-respondent granting several extensions to the defendants but only partial payments were given.

• When no further payments were made to settle the obligation despite repeated demands, the plaintiff-respondent corporation was constrained to file a complaint.

• The trial court declared Delilah solely liable stating that plaintiff and defendant-husband had no privity of contract and that his proposal to a settlement of the subject obligations was not to be considered as admission of co-ownership to the business, common sense and our inborn mores of conduct dictate that a husband must give aid and comfort to his distressed wife."

• The trial court issued a writ of execution directing the Provincial Sheriff to execute the judgment on the properties of the defendant-wife. However, the two notices of levy on execution covered not only her exclusive or paraphernal properties, but also the real and personal properties of the conjugal partnership of the spouses Vinluan.

• The next day, her husband (herein private respondent) filed a third-party claim seeking the lifting of the levy on the conjugal properties.

• The trial court issued the first assailed Order fixing the value of the levied personal properties at P300,000.00, and denying the third-party claim and the motion to quash the levy on execution.

• Petitioner's motion for reconsideration of the first order (on the ground that it directly contravened the decision itself which had already become final and executory) was denied.

ISSUE

Whether or not the defendant husband, exonerated from the obligation contracted by his wife in the pursuit of her business also absolves the conjugal partnership from liability.

HELD

Yes. Respondent Court correctly ruled that the trial court cannot, in the guise of deciding the third-party claim, reverse its final decision. Commenting on the trial court's very patent "about-face" on the issues of consent of the husband, benefit to the family, and the husband's liability for obligations contracted by his wife, the court quoted the appellate Court’s decision:

“… The dispositive portion of the decision charges the defendant Delilah Vinluan alone to pay the plaintiff corporation, having already declared that the defendant-husband cannot be held legally liable for his wife's obligations. Perhaps, when it was later discovered that the defendant Delilah Vinluan did not have sufficient property of her own to settle the obligation, the conjugal properties of the defendant-spouses became the object of the levy. But in order to bind the conjugal partnership and its properties, the New Civil Code provides that the debts and obligations contracted by the husband (or the wife) must be for the benefit of the conjugal partnership (Article 161, par. 1); and that the husband must consent to his wife's engaging in business (Article 117).

“…Hence, the conjugal partnership, as well as the defendant husband, cannot be held liable. As originally decreed by the Court, only the defendant wife and her paraphernal property can be held liable. Since the power of the court in execution of judgments extends only to properties unquestionably belonging to the judgment debtor alone (Republic vs. Enriquez, 166 SCRA 608), the conjugal properties and the capital of the defendant husband cannot be levied upon”.

ARTICLE 106

Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements.

By: Aguilba, Ray Dean F.

ARTICLE 107

The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains.

By: Aguilba, Ray Dean F.

Article 88

The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulations, express or implied, for the commencement of the regime at any other time shall be void.(145a)

Article 89

No waiver of rights, interest, shares, and effects of the absolute community of property during the marriage can be made except in the case of judicial separation of property.

Conjugal Partnership of Gains

The spouses place in a common fund place the fruits of their separate property, and the income from their work or industry and the same is to be divided between them equally, generally, upon the dissolution of the marriage or the partnership. The spouses however retain ownership and administration of their separate properties. They also retain possession and enjoyment of the same. But either of them may transfer the administration to each other by means of a public instrument which must be recorded in the registry of property of the place where the property is located.

When you marry, part or all of your property becomes conjugal property. Part or all of your spouse’s property also becomes conjugal property.

Before marriage, Philippine law allows the future spouses to determine the property regime they want to govern their marriage.

They may decide on any one of the 3 regimes available:

1. Absolute community

2. Conjugal partnership of gains

3. Complete separation of property

Conjugal partnership of gains differ from absolute community of property

In absolute community, properties separately held before the marriage become part of the conjugal property.

In conjugal partnership of gains, only income and properties accumulated during the marriage are considered conjugal property.

What is Conjugal Partnership of Gains?

In a Conjugal partnership of gains, the conjugal property is the income or property generated by both spouses during the marriage.

Each partner’s separate property remains theirs. It was the default marriage regime before Aug 3, 1988 and comes into effect when the marriage was celebrated.

It can be waived before marriage through a marriage settlement.

In Conjugal Partnership of Gains, only properties and income gained during the marriage form the conjugal property.

How does conjugal partnership of gains differ from absolute community of property?

In absolute community, properties separately held before the marriage become part of the conjugal property.

In conjugal partnership of gains, only income and properties accumulated during the marriage are considered conjugal property.

Properties that are included from the Conjugal Partnership of Gains

1. Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;

2. Those obtained from the labor, industry, work or profession of either or both of the spouses;

3. The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse;

4. The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found;

5. Those acquired through occupation such as fishing or hunting;

6. Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and

7. Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse.

Properties that are excluded from the Conjugal Partnership of Gains

1. Conjugal partnership of gains are exclusive properties prior to marriage, properties obtained by gratuitous title, or properties that are bought/redeemed/bartered with the exclusive money or property of the wife or husband;

2. Property owned by one spouse before marriage remain the property of that spouse even after marriage;

3. Property that has been obtained by the exclusive money of one spouse is the property of that spouse; and

4. Property donated or inherited by a spouse during the marriage remains that spouse’s property.

G.R. No. 164201 December 10, 2012

EFREN PANA, Petitioner,

vs.

HEIRS OF JOSE JUANITE, SR. and JOSE JUANITE, JR., Respondents.

ABAD, J.:

FACTS:

Petitioner , his wife Melecia, and others were accused of murder. Efren was acquitted but Melecia and another person was found guilty and was sentenced to the penalty of death and to pay each of the heirs of the victims, jointly and severally for civil indemnity and damages.

Upon motion for execution by the heirs of the deceased, the RTC ordered the issuance of the writ, resulting in the levy of real properties registered in the names of Efren and Melecia. Subsequently, a notice of levy and a notice of sale on execution were issued.

Efren and his wife Melecia filed a motion to quash the writ of execution, claiming that the levied properties were conjugal assets, not paraphernal assets of Melecia.

ISSUE:

Whether or not the conjugal properties of the spouses Efren and Melecia can be levied and executed upon for the civil liability of Melecia?

HELD:

Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.

The payment of fines and indemnities imposed upon the spouses may be enforced against the partnership assets if the spouse who is bound should have no exclusive property or if it should be insufficient.

Since Efren does not dispute the RTC’s finding that Melecia has no exclusive property of her own, the above applies. The civil indemnity that the decision in the murder case imposed on her may be enforced against their conjugal assets after the responsibilities enumerated in Article 121 of the Family Code have been covered.

As stated in the provision of Article 121 It allows the payment of the criminal indemnities imposed on his wife.

Therefore the conjugal partnership of the spouses Efren and Melecia can be levied for the satisfaction of the indemnities imposed on her.

Article 108

The conjugal partnership shall be governed by the rules on the contract partnership in all that is not in conflict with what is expressly determined in this chapter or by the spouses in their marriage settlements.

By: Austria,Honeylee B.

In a conjugal partnership gains, the spouses place a common fund the proceeds, products and fruits and income of their separate properties and those acquired thereafter through their efforts or by chance. Upon the dissolution of teh conjugal partnership, net gains shall be divided equally between spouse at the liquidation of the conjugal partnership, but the rights over the net gains is merely inchoate because it may be found that after the liquidation there is no conjugal partnership gains to be divided.

The spouses may retain ownership and administration of their separate properties. Either of them may transfer the administration to each other by means of public instrument which must be recorded in the registry of property of the place where the property is located.

Presumption of conjugality- presumption that real properties acquired during the marriage is a conjugal.Such prima facie presumption, However can be overtuned by a cadastral court's specific findings that the property is paraphernal/exclusive in character.

Ramon Ong v. CA

Paras,J;

Facts:

Ramon C. Ong filed a complaint against defendants Arsenio Camino as Deputy Sheriff of Camarines Norte and Francisco Boix, to annul the auction sale of a parcel of land, allegedly owners conjugally by plaintiff and his former wife Teodora B. Ong, awarded in favor of Boix, as highest bidder, in an auction sale conducted on October 10, 1958 by the Deputy Sheriff of Camarines Norte, herein defendant Camino, pursuant to a writ of execution issued by the Court of First Instance of Manilajudgment is hereby rendered in favor of plaintiff, ordering the defendant Teodora B. Ong to pay to the plaintiff the sum P2,827.83, with interest of 8% per annum plaintiff's wife, Teodora B. Ong conducted her own logging business in Camarines Sur.she secured from Francisco Boix a loan in the amount of P2,827.83. unfortunately, because of mismanagement, Teodora defaulted in her obligation. This prompted Boix to file a complaint, based on the promissory notes executed by Teodora, to collect the sum legally due plus interest against Teodora and Ramon Ong, the latter being joined as husband of the former

Issue:

Whether or not surname "Ong" (which is the surname of the husband Ramon C. Ong) was carried by Teodora in the aforesaid declaration, that indicates that the subject property was acquired during the marriage. By reason thereof, the property in dispute is presumed to be owned jointly by both spouses.

Held:

We disagree. The mere use of the surname of the husband in the tax declaration of the subject property is not sufficient proof that said property was acquired during the marriage and is therefore conjugal. It is undisputed that the subject parcel was declared solely in the wife's name, but the house built thereon was declared in the name of the spouses.We hold that the lot in question is paraphernal, and is therefore, liable for the personal debts of the wife.

Section 2. Exclusive Property of Each Spouse

Article 109

The following shall be the exclusive property of each spouse:

1.That which is brought to the marriage as his or her own.

2.That which each acquires during the marriage by gratuitous title.

3.That which is acquired by the right of redemption, by barter or by exchange of property belonging to only one of the spouses;

4. That which is purchased with the exclusive money of the wife or the husband.

By: Austria,Honeylee B.

There may be properties acquired or owned by the spouses before the marriage and considered as exclusive properties of each spouses unless they are brought into the marriage as parts of the absolute community property.

Sale with right to repurchase.

If a future spouse sold his property with the right to repurchase before the marriage and reacquired it during the marriage, it is still an exclusive property of the spouse. If the money he used to repurchase the property came from the conjugal assets, the spouse must reimburse the conjugal partnership. Reimbursement shall be done at the liquidation of the conjugal partnership.

Nature of Inherited property

One of the spouse is recipient of a property through testamentary or intestate succession or even by donation, the property is an exclusive property of the spouse.

Award of Damages

Is one of the spouse meets an accident, the court awards damages for hospitalization expenses, medical assistance ans loss of salary. The SC said that these are conjugal properties. But any moral damages awarded for personal injury in such accident are exclusive properties.

Nature of Gratuity from the Government

Monetary benefits given by gratis by the government because of previous work is gratuity and should be considered a separate porperty.

Redemption of property

Of the husband redeems the paraphernal property of the wife with his money, he does not own the same. Ownership belongs to the heirs of the wife and the wife but the estate owes to the husband.

Property acquired by exchange

Exchange presupposes a barter.

Purchase of property

If the property is purchased with money of the wife and partly with conjugal money, the same is partly conjugal and partly exclusive.

A, owns a parcel of land, and the title states that: A is married to B. The description of marriage merely indicated the civil status of A.

Homestead law- a vested right over homestead law is acquired only by presentation of final proof and its approval by the Director of Lands. If the spouse dies before it is granted, the same belongs to the heirs and it would never be a conjugal property.

Wife is the owner of the exclusive property and later deliver its administration to his husband in a public instrument recorded in Registry of Property. The husband cannot dispose of the exclusive properties because selling is an act of ownership.

The party who invokes the presumption that all property of marriage belongs to the conjugal partnership, must first prove that the property was acquired during the marriage.

Roberto Laperal, Jr. and Purification Laperal v. Ramon Katigbak and Evelina Katigbak

Facts:

Roberto Laperal, Jr. and Purification Laperal alleged that the defedant Katigbak's borrowed money amounting to Php 14,000 in four promissory note and recieved 11 pieces valued at Php 97,500 for commission basis. They alleged that the respondent did not payed the borrowed money and returned the pieces of jewelry. Its is shown in the evidence that only Ramon Katigbak signed and Evelina did not, and only Ramon recieved the money and the jewerlies. Evelina moved to dismiss on the ground that there was no cause of action against her.

Issue:

Whether or not there is a cause of action against Evelina?

Held:

Defendant Evelina is not personally liable. Ramon cannot bind the paraphernal property unless he is assigned as the administrator of the properties, in this case was not. Ramon is alone and his separate properties is liable, provided that the obligations did not benefit the family.

Section 3.

Article 110

(Loida F. Cordero #4)

Article 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties.

Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place where the property is located.

As owner of his/her exclusive property, a spouse of age can mortgage, encumber, alienate, dispose of his/her exclusive property without the consent of the other. Both can appear in court to litigate with regard to the same but the owner-spouse may transfer the administration of his/her exclusive properties to that other spouse in a public instrument.

Article 111

(Loida F. Cordero #4)

Article 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same

Noveria P. Naguit vs. Court of Appeals, Osler U. Padua and Norberto B. Magsajo

G.R. No. 137675 December 5,2000

Facts:

On October 15,1991 the RTC of Makati Branch 133 found Rolando Naguit guilty for violation of BP 22. The RTC issued a writ of execution on June 23,1992. By that writ, respondent Sheriff Magsajo levied upon a condominium unit and sold at public auction for P318,050.00 in favor of private respondent, as the highest bidder. A certificate of sale was then issued in the name of private respondent and registered with the Registry of Deeds.

On August 1995, petitioner filed a complaint with the RTC of Makati against private respondent Padua and Sheriff Magsajo for the annulment of the sale and for damages with prayer for issuance of writ of preliminary injunction to enjoin the conveyance of title over the condominium. Petitioner claimed that the debt contracted by her husband did not redound to the benefit of the family, nor was it made with her consent, and therefore, should not be charged to the conjugal partnership of gains or to her exclusive property – the condominium in the case at bar.

On September 20,1995 RTC Branch 136 denied petitioner’s prayer for the issuance of preliminary injunction, explaining that the anomaly in the auction sale of the property claimed to be owned by her is a matter within the competence of the Court which authorized the levy on execution of judgment; and that if she believes that there were irregularities in the auction sale, the problem should have been threshed out before Branch 133 which authorized the levy on execution. Moreover, the court said that petitioner should elevated the matter to the higher tribunal and seeks proper injunctive relief therein, and not to refer to it which does not exercise an appellate authority over the court that issued the aforesaid writ of execution. Petitioner’s motion for reconsideration was denied.

On appeal to the Court of Appeals, the appellate court affirmed the decision of the lower court, ratiocinating that as wife of the judgment debtor, she cannot be considered a stranger to the case wherein the writ of execution was issued and thus, she should have presented her third party claim therein. In the event that her claim is denied, only then should she bring the matter before the appellate court. Petitioner’s motion for reconsideration was denied, hence, she appealed to the Supreme Court.

Issue:

Whether or not petitioner can file an independent action to recover her property.

Held:

Petition was granted.

The third party claimant may also avail of the remedy known as terceria, by executing an affidavit of his title or right of possession over the property seized and serving the same upon the officer making the levy and the judgment creditor. Thereafter, the officer shall not be bound to keep the property, unless the judgment creditor or his agent indemnifies the officer against such claim by a bond in a sum not greater than the value of the property levied on. An action for damages may be brought against the officer within one hundred twenty (120) days from the date of the filing of the bond. These remedies are cumulative and any one of them may be resorted to by a third-party claimant without availing of the others. Thus, the availment of the remedy of terceria is not a condition sine qua non to the filing of a proper action. An independent action may be resorted to even before or without need of filing a claim in the court which issued the writ.

Pursuant also to the ruling in Sy vs. Discaya, petitioner was deemed a stranger to the action wherein the writ of execution was issued and was therefore justified in bringing an independent action to vindicate her right of ownership over the subject property.

Contrary to the stand taken by the trial court, the filing of such an independent action cannot be considered an encroachment upon the jurisdiction of a co-equal and coordinate court. The Court issuing the writ of execution may enforce its authority only over properties of the judgment debtor. Thus, the sheriff acts properly only when he subjects to the execution of property undeniably belonging to the judgment debtor. If the sheriff levies upon the asset of a third person in which the judgment debtor has no interest, then he is acting beyond the limits of his authority and is amenable to control and correction by a court of competent jurisdiction in a separate and independent action. This was in consonance with the well- established principle that no man shall be affected by any proceeding to which he is a stranger.

Article 112

The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (n)

By: De Jesus, Camille T.

⊳ Effect if spouse granted administration sells the property.

The reason for the rule that the spouse who was granted the power to administer the exclusive properties of the other cannot sell the same is that the spouse administering such exclusive property violated his/her duties or obligations. Selling is an act of ownership which cannot be exercised by the administrator without the written consent of the owner or authority of the court. He is considered a mere trustee. Such an automatic termination is imposed by law to penalize the erring spouse.

⊳ Effect of sale by the owner spouse of administered property.

If the owner-spouse may transfer the administration of his/her exclusive properties to the other spouse, but in the meantime the property under administration is sold to another person, then, the administration is terminated because the seller-spouse is no longer the owner. Even if the property is under administration by the other spouse, the owner can still do all acts of ownership. If the owner-spouse sells the property being administered by the other, the administration shall automatically cease. The reason is that, the administering spouse is merely an agent but it is deemed termination upon the cessation of ownership by the owner-spouse.

Article 113

Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. (150a)

By: De Jesus, Camille T.

Black v. Republic, L-10869, November 28, 2958

Facts:

⊳ The petitioners filed in the Court of First Instance of Manila a petition to correct the birth certificate of their daughter, Marian Kathleen Black, who was born on April 15, 1955 in the City of Manila, by changing the latter's citizenship appearing therein from "Canadian" to "American". The Solicitor General filed a motion to dismiss, alleging that the correction sought in the petition will substantially affect the child's citizenship which is still controversial and therefore cannot be allowed under Article 412 of the new Civil Code which is applicable only to clerical mistakes. As the court granted the motion to dismiss, the petitioners have appealed.

Issue:

⊳ Whether or not Article 412 of the New Civil Code is applicable to correct the citizenship of the child.

Ruling:

⊳ No. the Court held that the act of writing the word "Canadian" in the birth certificates is not alleged to have been due to the error of the employee or clerk in the Office of the Civil Registrar of Manila who made the entry. Neither is the error visible to the eyes or obvious to the understanding. Upon the other hand, the desired correction involves the controversial matter of citizenship which should be threshed out in an appropriate action, and certainly not in proceedings to correct mistakes under Article 412 of the Civil Code.

ARTICLES 114 – 115

(Maia Caireen R. Rosales-Ademe, #6)

Article 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee spouse, whenever they have been advanced by the conjugal partnership of gains.

DEFINITION OF TERMS:

Onerous – having legal obligations that outweigh the advantages

Onerous donation - is one where there are burdens and charges or future services equal in value if not greater than that of the thing donated

Gratuitous – not involving a return benefit, compensation, or consideration

Aleatory – uncertain event or contingency as to both profit and loss

Illustration:

If A donates a one hectare lot to B in Quezon City, with the obligation to construct a children’s center/park worth P500,000.00, then, his exclusive property shall answer for such a charge or burden. If the P500,000.00 was advanced by the conjugal partnership, then, the exclusive properties of B must reimburse the conjugal partnership.

Article 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case.

Two situations contemplated in the provisions of Article 113 where a property is donated to the spouses or inherited by them with designation of shares, and where there is no designation of shares:

1. In both cases, such property belongs to them exclusively; and

2. If there is no designation as to their shares, the property shall be divided between them, but it shall belong to them exclusively.

Examples:

1. A donated a parcel of land to X and Y, spouses with designation of shares, like 1/2 to X and 1/2 to Y. The share of each spouse belongs to him/her exclusively.

2. In the problem above, if there is no designation of shares, then, the property shall be divided into two, share and share alike and still, the share of each shall belong exclusively to them.

ACCRETION - a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy. - the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees or co- legatees (Art. 1015, Civil Code), EXCEPT when Article 113 of the Family Code is considered

OWNERSHIP OF RETIREMENT BENEFITS

· - If they were acquired by gratuitous title, they are exclusive properties

· - If acquired by onerous title during the marriage, like contributions to pension funds or deduction from salaries of the common funds, they are conjugal properties.

RETIREMENT BENEFITS - payments or services provided after reaching the age of retirement or upon withdrawal from one’s position or occupation and are separate and distinct from the salaries received

- not conjugal properties but belong to the beneficiary designated by the deceased member.

PENSION - amount given regularly to an official or employee of the Government out of liberality and as an expression of its appreciation for past services.

- Pension received by the husband under C.A. No. 188 is conjugal and is answerable for the support of the family.

- Pension is gratuity only when it is granted for services previously rendered and which at the time they were rendered gave rise to no legal obligation

ANNUITY - The aleatory contract of life annuity binds the debtor to pay an annual pension or income during the life of one or more determinate persons in consideration of a capital consisting of money or other property, whose ownership is transferred to him at once with the burden of the income.

EXAMPLE:

A gave to B a building with the condition that B will give an annual income of P200,000.00 as long as A lives. Here, the ownership of the building is immediately transferred to B with the burden of the annual income. If the building is exclusive property, the annuity of P200,000.00 is separate property of the recipient.

GRATUITY - something voluntarily given in return for a favor or services; a bounty, a tip paid to the beneficiary for past services rendered purely out of the generosity of the giver or grantor

USUFRUCTS - a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.

LIFE INSURANCE BENEFITS - a special contract and the destination of the proceeds thereof is determined by special law which deals exclusively on the subject

- If the beneficiary is somebody other than the insured or his estate, the beneficiary is the owner of the insurance indemnity; if the insured made his estate as the beneficiary and the premiums were paid by conjugal funds, the proceeds of the insurance constitute conjugal property

SOCIAL SECURITY SYSTEM - The beneficiary or beneficiaries should be the ones to primarily profit under the System where the government had not contributed anything

- when the beneficiary is the estate, or when there is none designated, or if the designation is void, that the System is required to pay the employee’s heirs. A non-relative or a third person may be designated as beneficiary

ALANO vs.FLORIDO

G.R. No. L-42767 March 26, 1935

VILLA-REAL, J.:

This is an appeal from the judgment of the CFI of Tayabas dismissing his petition for quo warranto as to the respondent.

FACTS:

· The following are alleged errors as committed by the court a quo in its judgment

a. Act No. 3050 is embraced in the words "salary or compensation"

b. The pension provided comes from provincial or insular funds

c. The lower court did not declare that Florida was elected to the office of municipal president of Lopez, Tayabas

· When respondent Florido was proclaimed municipal president, he was receiving a monthly pension of P75 from the teachers' retirement and disability fund, under Act No. 3050

ISSUES:

1. Whether or not the respondent's pension in a salary or a compensation

2. Whether or not the teachers' retirement and disability fund is insular or provincial

HELD:

1. No. A "pension" does not come within the meaning of the words "salaries or compensation" employed in Section 2175 of the Revised Administrative Code.

2. The teachers' retirement and disability fund partakes of a special character and is neither insular nor provincial; and the pensions received by retired and disabled teachers are neither salary nor compensation, but partly their savings and partly aid or donation as stated in Sections 9 and 10 of Act No. 3050.

In providing that the pensions of persons reemployed in the Government service with salary or compensation shall be discontinued for the period of employment when the salary or compensation is equal to, or greater than fifty per centum of the pension received under Act 3050.

Conjugal Partnership Property

Article 116.

All property acquired during the marriage, whether the acquisition appears have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (160a)

By: Perolina, Nil Jay V.

If there is a property that is acquired by onerous title during the marriage, there is a presumption of conjugality regardless of the source of funds used to acquire it. The presumption is not however, conclusive. It is rebuttable.

-Presumption of conjugality of properties of the husband and wife.

- Art. 1448 of the Civil Code provides

“There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child.”

-that this presumption is not overcome by the fact that the property is registered in the name of the husband or the wife alone; and that the consent of both spouses is required before a conjugal property may be mortgaged (Art 124, F.C.)

- Under Art 153, F.C. there was an issue on the mortgaged condominium unit being a family home and not corporate property. Assuming arguendo that the mortgaged condominium unit constitutes a family home, the same will not exempt it from foreclosure as Art 155 of the same Code allows the execution of forced sale of a family home “ for debts secured by mortgages on the premises before or after such constitution.”

-The presumption in favor of conjugality does not operate if there is no showing of when the property alleged to be conjugal was acquired. Moreover,the presumption may be rebutted only with strong,clear, categorical and convincing evidence. There must be strict proof of the exclusive ownership of one of the spouses, and the burden of proof rests upon the party asserting it.(GR No. 160762, May 3, 2006, 489 SCRA 107)

- When property is acquired during second marriage, the presumption is that it was acquired during the second marriage. Hence, the children of the first marriage cannot claim the property as the conjugal property of their mother and father (Mang-oy v CA, GR No. L-27421, September 12, 1986)

Case Digest:

G.R. No. 89667

JOSEPHINE B. BELCODERO vs THE HONORABLE COURT OF APPEALS, et al.

October 20, 1993, 227 SCRA 303

VITUG, J.

Facts:

This case involves the question of ownership over a piece ofproperty acquired by a husband living with a paramour and afterhaving deserted his lawful wife and children. Aloy Bosing was married to Juliana Oday in 1927 with whomhe had three (3) children.

In 1946, he left the conjugal home andlived with Josefa Rivera with whom he begot a child named Josephine. In 1949, he purchased a parcel of land on installment with an indi-cated civil status “married to Josefa Bosing,” the common-law wife.

In 1955, he authorized the transfer of the property under Josefa alone,such that when the deed of sale was executed in 1959, the title wasplaced under Josefa alone. In 1958, he married Josefa even while hismarriage with Juliana was subsisting. He died in 1967, Josefa andJosephine executed an extrajudicial partition and sale in favor of Josephine, hence, a title was issued in favor of Josephine in 1974.

In 1980, his real wife/widow and their children filed an action for re-conveyance where the court ruled in their favor ordering Josephineto reconvey the property to his heirs. On appeal to the CA, the judg-ment was affirmed, hence, a petition for review was filed with theSupreme Court raising the issue as to who are the owners of theproperty. The Court ruled it to be conjugal and -

Issue:

Whether or not the properties are conjugal

Ruling:

Yes, the property belongs to the conjugal partnership of Aloy andJuliana together with their children. Under the law, all properties ofthe marriage are presumed to belong to the conjugal partnership,unless it be proved that it pertains exclusively to the husband or tothe wife. (Article 160, NCC, now Article 92, Family Code).

That fact that it was registered under the name of Josefa does not mean thatshe is the owner, especially so that the registration under her namewas upon request of Aloy. Furthermore, she implicitly recognized Aloy’s ownership when she and her daughter executed a deed of extrajudicial partition and sale over her share in the conjugal partnership with Aloy.

The said adjudication would exactly conform with a partition in intestacy had they been the sole and legitimate heirs of the decedent.

It was further said that at the time that the adjudication ofownership was made following the demise of Aloy a constructive trust was created by operation of law in favor of Josephine.

It was not created when he allowed the property to be titled under Josefa’s namesince the title was not adversarial to Aloy’s interest. Under the law,if a property is acquired through mistake or fraud, the person ob-taining it is, by force of law, considered a trustee of an implied trustfor the benefit of the person from whom the property comes. (Article1456, NCC).

Article 117.

The following are conjugal partnership properties:

1. Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;

2. Those obtained from the labor, industry, work or profession of either or both of the spouses;

3. The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse;

4. The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found;

5. Those acquired through occupation such as fishing or hunting;

6. Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and

7. Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse. (153a, 154, 155, 159)

By: Perolina, Nil Jay V.

-Benefits obtained from the salaries of the spouses and their businesses are considered as conjugal properties of the husband and wife. The reason is that they were obtained thru labor or industry of a spouse during the marriage.

-Fruits of the common and separate properties of the spouses are conjugal properties.

Section 4. Charges Upon and Obligations of the Conjugal Partnership

Article 121.

The conjugal partnership shall be liable for:

(1) The support of the spouses, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support;

(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

(4) All taxes, liens, charges and expenses, including major or minor repairs upon the conjugal partnership property;

(5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse;

(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement;

(7)Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;

(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and

(9) Expenses of litigation between the spouses unless the suit is found to be groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a)

Rule on support.

Under Article 195 of the Family Code, the following are obliged to support each other:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and

(5) Legitimate brothers and sisters, whether of full or halfblood. (291a)

By; Ibanez, Jonathan M.

Support of illegitimate children of each spouse shall be charged from their separate properties. However, if a spouse does not have separate properties, then, the conjugal partnership shall advance the same, but the said advances shall be deducted from the share of the spouse obliged upon the liquidation of the conjugal partnership. (Art. 197, Family Code). The said spouse is considered as a debtor of the conjugal partnership because there is no obligation of the conjugal partnership to support the illegitimate children of each spouse.

Effect if debts were contracted during the marriage.

Debts and obligations contracted during the marriage by the administrator-spouse shall be chargeable against the conjugal partnership for as long as they redounded to the benefit of the family. For said property to be held liable, the obligation contracted by the administrator-husband must have redounded to the benefit of the conjugal partnership under Art. 121 of the Family Code. (BA Finance Corporation vs. Court of Appeals, G.R. No. 61464, 28 May 88).

Where the obligation sought to be enforced against the conjugal property managed by the wife was incurred by the husband after the latter had abandoned his family and had left the conjugal home, such obligation was undoubtedly contracted for his own benefit. To make the conjugal property liable for said loan would be unjust and contrary to the express provision of the Family Code. (BA Finance Corporation vs. Court of Appeals, G.R. No. 61464, 28 May 88).

It is true that the husband and wife are the administrators of the conjugal partnership pursuant to Article 163, NCC (Now Art. 124 of the Family Code) yet, as administrators of the said property, the only obligations incurred by the husband or wife that are chargeable against the conjugal property are those incurred in the legitimate pursuit of his/her career, profession or business with the honest belief that he is doing right for the benefit of the family. (BA Finance vs. CA, supra).

This is not true in a case where the husband acts as a guarantor or surety for another in an indemnity agreement, for in such a case, he does not act for the benefit of the conjugal partnership. The inference is more emphatic, when no proof is presented that the husband, in acting as a surety or guarantor received consideration for it, which may redound to the benefit of the conjugal partnership. (BA Finance Corporation vs. Court of Appeals, G.R. No. 61464, 28 May 88).

A conjugal partnership is liable only for such “debts and obligations contracted by the husband for the benefit of the conjugal partnership.” There must be the requisite showing them of some advantages which clearly accrued to the welfare of the spouses. (BA Finance Corporation vs. Court of Appeals, G.R. No. 61464, 28 May 88). For other discussion, please refer to Article 94. (See also Johnson & Johnson [Phils.], Inc. vs. CA, et al., supra).

Conjugal properties do not answer obligations of husband if they did not redound to the benefit of the family

In Philippine Bank of Commerce vs. C.A., et al., G.R. No. 106858, September 5, 1997, 86 SCAD 599, G.L. Chua executed a Deed of Exchange with Jaleco Dev’t. Corp. with the conformity of his wife. There were creditors of Chua who filed suits against him. They contended that the Deed of Exchange was fictitious and in fraud of creditor since Jaleco is controlled by Chua and the immediate members of his family, hence, the house and lot were levied upon. Can the wife contend that the same cannot be made to answer for Chua’s obligations because the transactions did not redound to the benefit of the family? Why? Can she file a motion to quash the writ contending that the conjugal partnership was the owner of the same? Why?

The High Court said:

No, because she was under estoppel to claim that the property belonged to the conjugal partnership because she gave her conformity to the Deed of Exchange and never intervened in the suit to annul the Deed of Exchange.

The Supreme Court further said that the conjugal properties cannot be made to answer for obligations of the husband if they did not redound to the benefit of the family. It said that this particular codal provision in question rightfully emphasizes responsibility of the husband as administrator. He is supposed to conserve and, if possible, augment the funds of the conjugal partnership, not dissipate them. If out of friendship or misplaced generosity on his part the conjugal partnership would be saddled with financial burden, then the family stands to suffer. No objection needed to arise if the obligation thus contracted by him could be shown to be for the benefit of the wife and the progeny if any there be. That is but fair and just. Certainly, however, to make a conjugal partnership respond for a liability that should appertain to the husband alone is to defeat and frustrate the avowed objective of the New Civil Code (now the Family Code) to show the utmost concern for the solidarity and well-being of the family as a unit. The husband, therefore, as is wisely thus made certain, is denied the power to assume unnecessary and unwarranted risks to the financial stability of the conjugal partnership. (citing Luzon Surety, Inc. vs. De Garcia, 30 SCRA 111; Ting vs. Villarin, 174 SCRA 532).

Conjugal properties cannot answer for the surety under-taking of a spouse.

In Ayala Investments and Development Corp., et al. vs. CA, et al., G.R. No. 118305, February 12, 1998, 91 SCAD 663, the Supreme Court in saying that the surety undertakings of a spouse cannot bind the conjugal properties of the husband and wife even if it has become a part of his duties as an officer of a corporation to sign as surety in Vice-President. In this case, Philippine Blooming Mills (PBM) obtained a P50,300,000.00 loan from Ayala Investments and Development Corporation, with Alfredo Ching, its Executive Vice-President as surety, making himself jointly and severally liable with PBM’s indebtedness to AIDC. The former failed to pay, hence, the latter filed a suit for sum of money against PBM and Ching. After trial, the two (2) defendants were held jointly and severally liable for the indebtedness. A writ of execution was issued where conjugal properties of Ching and his wife were levied upon.

The basic issues raised were the following: (1) Under Article 161 of the Civil Code (Now Arts. 94 and 121 of the Family Code) what debts and obligations contracted by the husband alone are considered “for the benefit of the conjugal partnership” which are chargeable against the conjugal partnership? (2) Is a surety agreement or an accommodation contract entered into by the husband in favor of his employer within the contemplation of the said provision? The Supreme Court ruled as follows:

If the husband himself is the principal obligor in the contract, i.e., he directly received the money and services to be used in or for his own business or his own profession, that contract falls within the term “x x x obligations for the benefit of the conjugal partnership.” Here, no actual benefit may be proved. It is enough that the benefit to the family is apparent at the time of the signing of the contract. From the very nature of the contract of loan or services, the family stands to benefit from the loan facility or services to be rendered to the business or profession of the husband. It is immaterial, if in the end, his business or profession fails or does not succeed. Simply stated, where the husband contracts obligations on behalf of the family business, the law presumes, and rightly so, that such obligation will redound to the benefit of the conjugal partnership.

In this case, it was shown that Ching signed as surety. It is incumbent upon PBM to prove that Ching’s acting as surety redounded to the benefit of the conjugal partnership. Absent such proof, the conjugal partnership is not liable. (Luzon Surety, Inc. vs. De Garcia, 30 SCRA 111).

One question can be asked. When the guaranty is in favor of the husband’s employer, would it not result in the employee’s benefit? This question is asked because it would prolong the employment of the surety. Or, would not the shares of stocks of his family appreciate if PBM could be rehabilitated through the loan? Or, would not his career be boosted if PBM would survive because of the loan?

No, because these are not the benefits contemplated by the law. The benefits must be one directly resulting from the loan. It cannot merely be a by-product or a spin-off of the loan itself considering the odds involved in guaranteeing a large amount of loan. The probable prolongation of employment in PBM and increase in value of its stocks, would be too small to qualify the transaction as one “for the benefit” of the surety’s family. Verily, no one could say with a degree of certainty, that the said contract is even “productive of some benefits” to the conjugal partnership.

Such rule is even more emphasized in the Family Code as it highlights the underlying concern of the law for the conservation of the conjugal partnership; for the husband’s duty to protect and safeguard, if not augment, not to dissipate it. Thus, the Supreme Court said:

“This is the underlying reason why the Family Code clarifies that the obligations entered into by one of the spouses must be those that redounded to the benefit of the family and that the measure of the partnership’s liability is to ‘the extent that the family is benefited.’ (Art. 121, Nos. 2 and 3, Family Code).

“These are all in keeping with the spirit and intent of the other provisions of the Civil Code (now the Family Code) which prohibits any of the spouses to donate or convey gratuitously any part of the conjugal property. Thus, when co-respondent Alfredo Ching entered into a surety agreement he, from then on, definitely put in peril the conjugal property (in this case, including the family home) and placed it in danger of being taken gratuitously as in case of donation.”

In a very novel and new theory that was raised in this case, it was contended that Ching’s acting as surety is part of his business or profession

The signing as a surety is certainly not an exercise of an industry or profession. Signing as a surety is not embarking in a business. No matter how often an executive act or is persuaded to act, as a surety, for his own employer, this should not be taken to mean that he had thereby embarked in the business of suretyship or guaranty. Thus, the Supreme Court said:

“This is not to say, however, that we are unaware that executives are often asked to stand as surety for their company’s loan obligations. This is especially true if the corporate officials have sufficient property of their own; otherwise, their spouses’ signatures are required in order to bind the conjugal partnerships.

The fact that on several occasions, the lending institutions did not require the signature of the wife and the husband signed alone does not mean that being a surety became part of his profession. Neither could he be presumed to have acted for the conjugal partnership.

Art. 121, paragraph 3, of the Family Code is emphatic that the payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except to the extent that they redounded to the benefit of the family.

Here, the property in dispute also involves the family home. The loan is a corporate loan not a personal one. Signing as a surety is certainly not an exercise of an industry or profession nor an act of administration for the benefit of the family.”

Origin of the principle.

The predecessors of the law and the jurisprudence cited above can be traced from the cases of Ansaldo vs. Sheriff of Manila, et al., 64 Phil. 115; Liberty Insurance Corp. vs. Banuelos, 59 O.G. No. 29, 4526; and Luzon Surety, Inc. vs. De Garcia, 30 SCRA 111, where the Supreme Court said:

“The fruits of the paraphernal property (now exclusive property) which form part of the assets of the conjugal partnership, are subject to the payment of the debts and expenses of the spouses, but not to the payment of the personal obligations (guaranty agreements) of the husband, unless it be proved that such obligations were productive of some benefit to the family. (Ansaldo case)”

When there is no showing that the execution of an indemnity agreement by the husband redounded to the benefit of his family, the undertaking is not a conjugal debt but an obligation personal to him. (Liberty Insurance)

In the most categorical language, a conjugal partnership under Article 161 of the New Civil Code (now the Family Code) is liable only for such “debts and obligations contracted by the husband for the benefit of the conjugal partnership.” There must be the requisite showing then of some advantage which clearly accrued to the welfare of the spouses. Certainly, to make a conjugal partnership respond for a liability that should appertain to the husband alone is to defeat and frustrate the avowed objective of the New Civil Code to show the utmost concern for the solidarity and well-being of the family as a unit. The husband, therefore, is denied the power to assume unnecessary and unwarranted risks to the financial stability of the conjugal partnership. (Luzon Surety, Inc.).

Liability of the conjugal partnership for obligations redounding to the benefit of the family.

The test of liability of the conjugal properties of the husband and wife for obligations contracted during the marriage is the fact that they redounded to the benefit of the family. This is true even if the obligations were contracted without the consent of the other spouse. It is also true even if the obligation was contracted prior to the marriage. The measure of liability of the absolute community and conjugal properties of the spouses is that, the obligation must have redounded to the benefit of the family. And direct benefit is required.

Carlos vs. Abelardo G.R. No. 146504, April 4, 2002

Facts:

Petitioner lent to the respondent but without the consent of his spouse the amount of $25,000.00 for the purchase of a house and lot. In fact, when he inquired from them the status of their loan, they acknowledged it but they failed to pay despite demand, hence, a suit for sum of money was filed. Respondent claimed that the amount was his share in the corporation’s profits. The RTC decided for the plaintiff but the CA decided for the defendant. Are the conjugal partnership properties answerable for the obligation? Why?

Held:

Yes, because the loan redounded to the benefit of their family

The amount of $25,000.00 was in the form of a loan as shown by the fact that they acknowledged the indebtedness from the plaintiff, and hence, the liability of the conjugal partnership. Under the law, the conjugal partnership shall be liable for “x x x (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited”;

The loan redounded to the benefit of the family because it was used to purchase the house and lot which became the conjugal home of respondent and his family. Hence, notwithstanding the alleged lack of consent of respondent, under Art. 121 of the Family Code, he shall be solidarily liable for such loan together with his wife.

The term “benefit” is the crucial point in determining whether the properties of the husband and wife are liable for obligations contracted prior to or during the marriage. The burden of proof that the obligation redounded to the benefit of the family of the debtor lies in the creditor.

The conjugal partnership is liable if obligation redounded to the benefit of the family.

The mortgagee contended that the conjugal partnership is liable to the extent that it redounded to the benefit of the family citing Article 121(3) of the Family Code which provides that the conjugal partnership shall be liable for debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited. Hence, even if the contract is void, then, the conjugal partnership should be liable to the extent of the share of the husband who authorized the mortgage.

The basic and established fact is that during his lifetime, without the knowledge and consent of his wife, the husband constituted a real estate mortgage on the subject property, which formed part of their conjugal partnership. By express provision of Article 124 of the Family Code, in the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void.

The law does not qualify with respect to the share of the spouse who makes the disposition or encumbrance in the same manner that the rule on co-ownership under Article 493 of the Civil Code does. Where the law does not distinguish, courts should not distinguish. (Recaña vs. CA, 349 SCRA 24 [2001]).

Matters to be proven for the conjugal partnership to be liable.

Under Article 121 of the Family Code, the conjugal partnership shall be liable for debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited.

For the conjugal property to be held liable, the obligation contracted by the husband must have redounded to the benefit of the conjugal partnership. There must be the requisite showing then, of some advantage which clearly accrued to the welfare of the spouses. Certainly, to make a conjugal partnership respond for a liability that should appertain to the husband alone is to defeat and frustrate the avowed objective of the then New Civil Code to show the utmost concern for the solidarity and well-being of the family as a unit. (Ayala Investment & Dev. Corp. vs. Court of Appeals, 349 Phil. 942; Luzon Surety Co., Inc. vs. De Garcia, 30 SCRA 111).

The burden of proof that the debt was contracted for the benefit of the conjugal partnership of gains lies with the creditor-party litigant claiming as such. (286 SCRA 272). Ei incumbit probation qui dicit, non qui negat (he who asserts, not he who denies, must prove). (Castilex Industrial Corp. vs. Vasquez, Jr., 378 Phil. 1009 [1999]; Homeowners Savings & Loan Bank vs. Dailo, G.R. No. 153802, March 11, 2005).

Article 122

The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.

However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned.

By: Gladys Agaid Lambayong

This article provides that:

· Ante-nuptial debts of either spouse, conforming to the provisions of Article 121, may be charged against the conjugal partnership if such debts redounded to the benefit of the family.

· Debts contracted by either spouse during the marriage may be charged to the conjugal partnership if such debts redounded to the benefit of the family.

· Ante-nuptials, fines and indemnities imposed upon either spouse, and support for illegitimate children may charged to the conjugal partnership if the spouse has no or insufficient exclusive property, but such payments are subject to deductions at the time of liquidation.

Below is a case illustrating the provision of this article:

BA Finance v. CA

GR No. 61464, May 28, 19

Petitioner: BA Finance Corporation

Respondents: Court of Appeals, Augusto Yulo, Lily Yulo

Ponente: Justice Gutierrez, Jr.

This was a petition to set aside the decision of CA affirming the decision of the Court of First Instance of Manila.

FACTS:

On July 1, 1975, Augusto Yulo secured a loan from the petitioner. He presented an alleged special power of attorney executed by his wife, Lily Yulo, who managed A & L industries and under whose name the said business was registered, authorizing him to procure the said loan and sign the promissory note. Two months prior to the loan, Augusto had already abandoned Lily, their children, and their home. When the obligation became due and demandable, Augusto failed to pay the same.

Petitioner filed a complaint against the spouses Yulo on the basis of the promissory note. Petitioner prayed for the issuance of a writ of attachment alleging the respondent spouses guilty of fraud and non-payment of their debt.

Private respondent Lily filed her answer with counterclaim, alleging Ausguto Yulo had abandoned her and their children five (5) months before the filing of the complaint; that they were already separated when the promissory note was executed; that her signature in the special power of attorney was forged because she had never authorized her husband in any capacity to transact any business for and in behalf of A & L Industries, that she never got a single centavo from the proceeds of the loan mentioned in the promissory note; and that as a result of the illegal attachment of her properties, which constituted the assets of the A & L Industries, the latter closed its business and was taken over by the new owner.

The trial court dismissed the petitioner’s complaint against Lily Yulo and A &L Industries. The petitioner appealed. But, the Court of Appeals affirmed the trial court’s decision.

ISSUE:

Whether or not A & L industries, established during the marriage of the respondent spouses, form part of the conjugal partnership of the respondent spouses and is liable for the obligations contracted by Augusto Yulo.

RULING:

NO. The Court ruled that the petitioner cannot enforce the obligation contracted by Augusto Yulo against his conjugal property with respondent Lily Yulo. There is no dispute that A & L Industries was established during the marriage of the respondent spouses and therefore the same is presumed conjugal and the fact that it was registered in the name of only one of the spouses does not destroy its conjugal nature. However, for the said property to be held liable, the obligation contracted by the husband must have redounded to the benefit of the conjugal partnership under Article 161 of the Civil Code. In the present case, the obligation which the petitioner is seeking to enforce against the conjugal property managed by the private respondent Lily Yulo was undoubtedly contracted by Augusto Yulo for his own benefit because at the time he incurred the obligation he had already abandoned his family and had left their conjugal home. Worse, he made it appear that he was duly authorized by his wife in behalf of A & L Industries, to procure such loan from the petitioner. Clearly, to make A & L Industries liable now for the said loan would be unjust and contrary to the express provision of the Civil Code.

The decision of the Court of Appeals is hereby SET ASIDE and the petitioner is ordered to pay the private respondent Lily Yulo actual damages.

Article 123

Whatever may be lost during the marriage in any game of chance, or in betting, sweepstakes or any other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property.

By: Gladys Agaid Lambayong

This article should be referred to Article 95 which states that,

“Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property."

The provision of Article 123, as well as Article 95, is to discourage the properties of the family to dissipate, in case there are loses incurred as a result of gambling. Additionally, that is, to punish the gambler-spouse, for as earlier mentioned, gambling dissipates the community of properties.

Article. 125.

Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a)

By: Perolina, Nil Jay V.

Donation, while an act of liberality transfers ownership over properties, it is akin to sale of the same, hence, there is a need for the consent of the other spouse if one of them make a donation of any conjugal property. Otherwise, it is void.

Section 6. Dissolution of Conjugal Partnership Regime

Art. 126. The conjugal partnership terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or

(4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a)

Article 118.

Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. (n)

By: Guiang, Aprilyn M.

Property acquired on Installments

Ownership acquired before the marriage = Exclusive Property

Ownership acquired after the marriage = Conjugal Property

Illustration:

X bought a house and lot on installment basis from Y for P150,000. He paid P120,000. A few months later, X married Z. During the marriage, the amount of P20,000 was paid out of conjugal funds.

a. Who owns the house and lot if there is stipulation that upon the execution of the contract, ownership shall be vested upon X?

b. Who owns the house and lot if there is stipulation that ownership shall be vested upon full payment?

Answer:

a. X is the owner, the ownership was vested in him before the marriage.

b. X and Z are the owner

The law, however, requires that in either case, X must reimburse the conjugal partnership for whatever he advanced or paid. In the same vein, in the second case, the conjugal partnership shall reimburse X the amount of P120,000 he paid to Y.

Article 119.

Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. (156a, 157a)

By: Guiang, Aprilyn M.

Fruits of Exclusive Property

Fruits of Exclusive Property before the marriage = Exclusive Property

Fruits of Exclusive Property after the marriage = Conjugal Property

Illustration:

A lent B the amount of P50,000 payable in one year starting January 1988. On June 1, 1988, A married C.

a. Who owns the principal amount collected after June 1, 1988?

b. Who owns the interest amount collected after June 1, 1988?

Answer:

a. A is the owner

b. A and C are the owner

Article 120.

The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement.

In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership. (158a)

By: Guiang, Aprilyn M.

Rules of Ownership of land and building

Land (Exclusive Property) + Building (Conjugal Property) = ?

If building is more valuable than land = land and building will be conjugal

If land is more valuable than building = land and building will be exclusive property

Reimbursement shall be done during the liquidation of the conjugal partnership

While the law says that the conjugal partnership or the owner of the land is the owner of the building or land, the law, however, says that ownership of the entire property shall be vested only upon liquidation of the conjugal partnership. The reason for the law is that, it is only during liquidation that payment shall be made to the conjugal partnership or to the exclusive owner. Prior to the liquidation of the properties, the improvement is conjugal.

Case:

CONCESO DIAZ, Petitioner, v. COURT OF APPEALS and TOMAS DE GUZMAN, Respondents.

G.R. No. L-42180. November 10, 1986.

Paras, J.:

(Article 116)

Facts:

The late Teodulo Diaz, who died intestate before the last World War, was the registered owner of a tract of land. He was survived by his wife Maria Espejo (now also deceased) and five (5) children, one of whom is the herein petitioner Conceso Diaz. On June 9, 1947, the widow, Maria Espejo sold a portion of the land to private respondent Tomas de Guzman.

Private respondent requested the Register of Deeds of Isabela to issue the corresponding transfer certificate of title of the land. The Register of Deeds in turn wrote petitioner Conceso Diaz to surrender the owner’s duplicate certificate of title in order that the deed of sale could be properly annotated. However, petitioner refused to surrender the owner’s duplicate certificate of title, hence, private respondent de Guzman had to file in the CFI of Isabela, a petition for the surrender of the owner’s duplicate of Original Certificate of Title.

Petitioner’s contend that the property sold is part of the intestate estate of the late Teodulo Diaz; that Maria Espejo Vda. de Diaz did not have any judicial authority to sell the portion of the lot in question; and that she never received the purchase price; that the Deed of Sale is fatally defective and that respondent’s causes of action are already barred by prescription and by laches.

Issue:

Whether or not the subject property adjudicated to only one of the spouses is conjugal?

Held:

Yes, the subject property adjudicated to only one of the spouses is conjugal.

The adjudication of real property to one of the spouses only does not necessarily mean that it is his or her exclusive property, if said land was acquired during the marriage.

The title says that the land was registered in the name of “Teodulo Diaz married to Maria Espejo”, shows that the property was acquired during the existence of the conjugal partnership.

Article 129

Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.

8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain.

Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a)

By: Rosales, Gayle Marion R.

Paragraph 3 has reference to Article 20 of the FC. If one of the spouse owns a lot where a building was built with conjugal funds, on the assumption that the value of the building is more than that of the land, the conjugal partnership shall reimburse the spouse owning the land during the liquidation of the partnership. This is so because it is only when the value of the land has been paid to the spouse that ownership shall be vested in the partnership.

The debts and obligations referred to in paragraph 4 are those that benefited the family.

It must be noted that the net assets shall be divided. Separate properties of each spouse, if there is any remainder, shall be delivered to them.

Article 130

Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse.

If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

By: Rosales, Gayle Marion R.

Co-ownership ensues after death of a spouse; sale by one is valid over his interest

G.R. No. 200274, April 20, 2016

MELECIO DOMINGO, Petitioner, v. SPOUSES GENARO MOLINA AND ELENA B. MOLINA, SUBSTITUTED BY ESTER MOLINA, Respondents.

BRION, J.:

FACTS:

Spouses Anastacio and Flora Domingo bought a property in Tarlac consisting of ½ undivided portion over 18, 164 sqm parcel of land.

Anastacio, in his lifetime, has been borrowing money from respondent Sps Genaro and Elena Molina.

Ten years after the death of Flora, Anastacio sold his interest over the land to the Sps Molina to answer his debts. The entire ½ undivided portion of the land was transferred to them.

Petitioner Melecio, Anatascio’s child, upon learning the transfer, filed a Complaint for Annulment of Title and Recovery of Ownership against the Sps Molina claiming that it is only a collateral for the money borrowed by his father.

He alleged that his father could not validly sold the interest over the subject property without his mother’s consent, as she was already dead at the time of the sale.

Respondent Sps Molina asserted that Anastacio surrendered the title to answer for his debts and that they have been in possession of the subject property before the title was registered under their names and have religiously paid for the its RPT.

The adopted son of Sps Molina, Cornelio Molina, substituted them when they died during the pendency of the case.

The RTC dismissed the case for petitioner's failure to establish the claim that his father did not sell the property to Sps Molina considering he could not dispose conjugal property to answer for conjugal liabilities.

ISSUES:

(1) Whether the sale of a conjugal property to the spouses Molina without Flora's consent is valid and legal; and

(2) Whether fraud attended the transfer of the subject property to the spouses Molina.

RULING:

The SC denied the petition for lack of merit.

Sps Domingo’s marriage was executed before the Family Code’s effectivity making their property relation a conjugal partnership. It dissolved when Flora died.

The heirs of Flora were governed by an implied co-ownership among the conjugal properties pending liquidation and partition. This will also include Anastacio with respect to Flora’s share of the conjugal partnership. Anastacio being co-owner, cannot claim title to any specific portion of the conjugal properties without having done an actual partition first, either by agreement or judicial decree.

Considering the property as undivided interest, he had the right to freely sell and dispose his undivided interest in the subject property.

Sps Molina became co-owners of the said property to the extent of Anastacio’s interest. His sale to the Sps Molina without the consent of the other co-owners was not totally valid, for his rights or a portion thereof were thereby effectively transferred. The Sps Molina would be a trustee for the benefit of co-heirs of Anastacio in respect of any portion that might belong to the co-heirs after liquidation and partition. Melecio’s recourse as a co-owner of the conjugal properties in action for partition under Rule 69 of the Revised Rules of Court.

On the issue of fraud, the lower courts found that there was no fraud in the sale of the disputed property to Sps Molina. The notarized deed of conveyance annotated on the OCT executed between Anatacio and the Sps Molina negated Melecio’s argument that no document was executed after the sale of the said property. Furthermore, the petitioner’s belief that his father could not have solved the property without his knowledge cannot be considered as proof of fraud to invalidate the Sps Molina’s registered title over the disputed property.

ANNOTATION:

The regime of conjugal partnership of gains, the husband and wife are co-owners of all the property of the conjugal partnership. Thus, upon the termination of the conjugal partnership of gains due to death of either spouse, the surviving spouse has an actual and vested one-half undivided share of the properties, which does not consist of determinate and segregated properties until liquidation and partition of conjugal partnership. With respect, however, to the deceased spouse’s share in the conjugal partnership properties, an implied ordinary co-ownership ensues among the surviving spouse and the other heirs of the deceased.

The ensuing implied co-ownership is governed by Article 493 of the Civil Code, which provides:

Art 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of alienation or the mortgage with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.

Article 131

Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. (189a)

By: Valbuena, Dona M.

The provision of Article 131 of the Family Code of the Philippines, was lifted from the New Civil Code of the Philippines which was adopted almost in toto, to wit:-

Art. 189. Whenever the liquidation of the partnership of two or more marriages contracted by the same person should be carried out at the same time, in order to determine the capital of each partnership all kinds of proof in the absence of inventories shall be admitted; and in case of doubt, the partnership property shall be divided between the different partnerships in proportion to the duration of each and to the property belonging to the respective spouses. (1431)

The provisions of Article 131 of the FC govern the property regime of CPG on two or more marriages contracted by the same person. The inventory of properties must have been done at the termination of each marriage to determine the liquidation of properties under the CPG regime per each marriage.

This is illustrated in Delizo versus Delizo. 69 SCRA 216 where the Court held that if the first marriage lasted for 18 years and the second marriage lasted for 46 years, the properties should be divided into 18 to 46, if the capital of either marriage or the contribution for each spouse cannot be determined by mathematical certainty.

Article 132

The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. (187a)

By: Valbuena, Dona M.

The provision of Article 132 of the Family Code have almost the same provision with Article 187 of the Civil Code, to wit:

Art. 187. With regard to the formation of the inventory, rules for appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in the present Chapter, the Rules of Court on the administration of estates of deceased persons shall be observed. (1428a) –

Article 133

From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (188a)

By: Valbuena, Dona M.

The provision of Article 133 of the FC is similar to Article 188 of the New Civil Code, to wit:

Article 188. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (1430)

There are no cases to illustrate the provisions of the preceding articles of the Family Code. To illustrate the absolute community, the following is hereby digested.

JUAN SEVILLA SALAS, JR., petitioner, vs. EDEN VILLENA AGUILA, respondent.

G.R. No. 202370, September 23, 2013, CARPIO, J

The property acquired during the marriage is prima facie presumed to have been obtained through the couple's joint efforts and governed by the rules on co-ownership. In the present case, Salas did not rebut this presumption. In a similar case where the ground for nullity of marriage was also psychological incapacity, we held that the properties acquired during the union of the parties would be governed by co-ownership. Accordingly, the partition of the Discovered Properties should be sustained.

FACTS OF THE CASE:

On 7 September 1985, petitioner Juan Sevilla Salas, Jr. (Salas) and respondent Eden Villena Aguila (Aguila) were married. However, five months after the birth of their daughter, Salas left their conjugal dwelling. Subsequently, Aguila filed for a petition for nullity of marriage alleging psychological incapacity on the part of Salas. The petition states that they "have no conjugal properties whatsoever." It was granted.

However, on 10 September 2007, Aguila filed a Manifestation and Motion stating that she discovered: (a) two 200-square-meter parcels of land with improvements located in San Bartolome, Quezon City; and (b) a 108-square-meter parcel of land with improvement located in Tondo, Manila. The registered owner of the Discovered Properties is "Juan S. Salas, married to Rubina C. Salas." The manifestation was set for hearing on 21 September 2007. However, Salas' notice of hearing was returned unserved with the remark, "RTS Refused to Receive." Salas filed an Opposition to the Manifestation alleging that there is no conjugal property to be partitioned based on Aguila's petition. According to Salas, Aguila's statement was a judicial admission and was not made through palpable mistake.

Salas claimed that Aguila waived her right to the Discovered Properties.

ISSUE:

Whether or not there should be partition of the discovered properties

HELD:

YES.

Basic is the rule that the party making an allegation in a civil case has the burden of proving it by a preponderance of evidence. Salas alleged that contrary to Aguila's petition stating that they had no conjugal property, they actually acquired the Waived Properties during their marriage. However, it was found that Salas failed to prove the existence and acquisition of the Waived Properties during their marriage. On the other hand, Aguila proved that the Discovered Properties were acquired by Salas during their marriage. In Villanueva v. Court of Appeals, the Court held that the question of whether the properties were acquired during the marriage is a factual issue. Factual findings of the RTC, particularly if affirmed by the CA, are binding on us, except under compelling circumstances not present in this case. The property acquired during the marriage is prima facie presumed to have been obtained through the couple's joint efforts and governed by the rules on co-ownership.

Article 134

In the absence of an express declarations in the marriage settlements, the separation of property between the spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or fore sufficient cause.

By: Calano, Ernest Ryan R.

Once the parties have entered into the regime of conjugal partnership that cannot be changed during the marriage without judicial order. In the same manner, if the system of absolute community of property has been established, the same cannot be changed during the marriage without judicial order. Any stipulation between the parties during the marriage without a judicial order is void. While the parties have the liberty to enter into any contract, the same is true only if the contract is not contrary to law.

The separation of property may either be voluntary or with a cause, the causes may be found in Article in 135 of the Family Code.

Article 135

Any of the following shall be considered sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries with its civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101

(5) That the spouse granted the power of administration in the marriage settlement has abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact for at least one (1) year and reconciliation is highly improbable.

In the cases provided for in nos. 1, 2, and 3, the presentation of the final judgement against the guilty or absent spouses shall be enough basis for the grant of the decree of judicial separation of property (191a)

By: Calano, Ernest Ryan R.

Declaration of Absence.

Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of administration of his property, his absence may be declared.

Constructive and actual abandonment.

Abandonment presupposes that a spouse leaves the conjugal dwelling without the intention of returning. It presupposes an active act of leaving the conjugal dwelling.

Declaration of Absence

It is obvious from the law that if a spouse has been declared an absentee, the present spouse can file an action for separation of properties. This is so because the administration of the properties is vested upon the spouses jointly and it needs actual, physical presence such act.

Separation for at least 1 year

It is not enough that the spouses have been separated in fact for at least one 1 year in order that an action for separation of properties may be granted. It is a necessary prerequisite

The court is not always bound by such choice. In its discretion, the court may find the chosen parent unfit and award the custody to the other parent, or even to a third person as it deems fit under the circumstances.

G.R. No. L-23482 August 30, 1968

ALFONSO LACSON, petitioner,
vs.
CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents.

-----------------------------

G.R. No. L-23767 August 30, 1968

CARMEN SAN JOSE-LACSON, plaintiff-appellant,
vs.
ALFONSO LACSON, defendant-appellee.

-----------------------------

G.R. No. L-24259 August 30, 1968

ALFONSO LACSON, petitioner-appellee,
vs.
CARMEN SAN JOSE-LACSON, petitioner-appellant.

CASTRO, J.:

Facts:

Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter referred to as the respondent spouse) were married on February 14, 1953. To them were born four children, all alive.

On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, and commenced to reside in Manila. She filed on March 12, 1963 a complaint docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their children as well as support for them and herself.

The spouses concluded with amicable settlements with judicial approval, read as follows;

Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial approval as required by Article 191 of the Civil Code of the Philippines — the particular terms and conditions of their mutual agreement being as follows:

(a) There will be separation of property — petitioner Carmen San Jose-Lacson hereby waiving any and all claims for a share in property that may be held by petitioner Alfonso Lacson since they have acquired no property of any consequence.

(b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate estate as they may acquire without the consent of the other and all earnings from any profession, business or industry as may be derived by each petitioner shall belong to that petitioner exclusively.

(c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to petitioner Alfonso Lacson and the custody of the younger children named Gerrard and Ramon shall be awarded to petitioner Carmen San Jose-Lacson.

(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance of P300.00 for the support of the children in her custody.

(e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the other at their respective residences and, during the summer months, the two children in the custody of each petitioner shall be given to the other except that, for this year's summer months, all four children shall be delivered to and remain with petitioner Carmen San Jose-Lacson until June 15, 1963 — on which date, she shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso Lacson — this judgment of course being subject to enforcement by execution writ and contempt.

5. Petitioners have no creditors.

WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties pursuant to Article 191 of the Civil Code of the Philippines and thereafter that the Court enter its judicial approval of the foregoing agreement for the dissolution of their conjugal partnership and for separation of property, except that the Court shall immediately approve the terms set out in paragraph 4 above and embody the same in a judgment immediately binding on the parties hereto to the end that any non-compliance or violation of its terms by one party shall entitle the other to enforcement by execution writ and contempt even though the proceedings as to creditors have not been terminated.".

Issues:

Whether or not the amicable settlements they entered into which was verified by judicial action null and void:

Whether the custody of all children and support be in favor of the mother?

Held:

In the first place the amicable settlements when it comes to the custody of the children was a fact, CFI erred in affirming and approving the said settlements because all children were minor and under 7 years of age when it was filed then, but as to the time when Supreme court executed the judgement, they find it unnecessary to pass upon the other errors assigned in the three appeals. As the children now Enrique — 11, Maria Teresa — 10, Gerrard — 9, and Ramon — 5. Therefore, the issue regarding the award of the custody of Enrique and Maria Teresa to the petitioner spouse has become moot and academic. The passage of time has removed the prop which supports the respondent spouse's position.

ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of Appeals in CA-G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and Domestic Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259 is hereby remanded to the Court of First Instance of Negros Occidental for further proceedings, in accordance with this decision. No pronouncement as to costs.

Article 136
The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties

All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest, (191a)

By: Laurente, Ivy M.

VOLUNTARY DISSOLUTION REQUISITES;

1.Both parties agree on the separation of their property regime.

2.Must have court approval before becoming effective.

3.Need not state the reason for conversion/separation. Agreement is enough but if the former is stated, the court must reject if the agreement is against public policy.

4.Must be equally divided unless a different proportion/division had been agreed upon in the marriage settlement or unless there has been a valid waiver of the share which may be made upon judicial separation of property.

5. This agreement shall take effect from the time of judicial order decreeing the separation of the properties and not from the signing of the agreement.

6.When the judgement by way of compromise agreement dissolving the conjugal partnership of spouses has become final and executory the fact that the creditors were not notified will not invalidate such judgement.

7. Such judgement has all the force and effect of any other judgement.

8. Conclusive only upon parties involved and their privies.

9. Not binding to third persons who are not parties to it.

ARTICLE 137
Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code.

During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children.

By: Laurente, Ivy M

Liquidation - means to exhaust and settle properties as well as liabilities.

Liquidation must be done in conformity under the law. Under the Conjugal Partnership Property, the liquidation process is governed by Article 129, and for Absolute Community Property, it is governed by Article 102.

Also liquidation must be equal, unless:

– a different proportion or division has been agreed upon in the marriage settlement

there has been a valid waiver of such share as provided in the family code

ARTICLE 138

After the dissolution of the absolute community or the conjugal partnership, the provisions on complete separation of property shall apply.

ü It is the finality of the decision of the Court decreeing the separation which dissolves the same.

ü The properties acquired or expenses incurred by the spouses belong exclusively to either of them after the finality of the judicial separation decree.

By: Sarmiento, Sheryl P

Article 139

The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property.

By: Sarmiento, Sheryl P

G.R. No. 82606 December 18, 1992

PRIMA PARTOSA-JO, petitioner,

vs.

THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and CONSING), respondents.

CRUZ, J.:

FACTS

• Private respondent, Jose Jo is legally married to the petitioner, who admits to having cohabited with three women and fathered fifteen children. The two agreed that Prima would temporarily leave their conjugal home in Dumaguete City to stay with her parents during the initial period of her pregnancy and for Jose to visit and support her. They never agreed to separate permanently. Prima went back to Dumaguete, but she was not accepted by her husband.

• In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property and action for support which were consolidated and tried jointly. However, the disposition for support was rendered and none of the complaint for judicial separation of properties. The petitioner elevated the decision to the Court of Appeals, which affirmed the ruling for support but dismissed the complaint of judicial separation of conjugal property for lack of a cause of action and on the ground that separation by agreement was not covered by Article 178 of the Civil Code.

ISSUE

• Whether or not the CA erred in denying the complaint of Prima Partosa-Jo on the ground that the separation of the parties was due to their agreement and not because of abandonment.

HELD

• YES. CA misinterpreted the agreement between her and the private respondent. The physical separation of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property under ART 135.

Regime of Separation of Property

What is the Regime of Separation of Property?

The Regime of Separation of Property governs that each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of consent of the other. In this regime, each spouse shall belong all earnings from his/her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property.

Article 143.

Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be suppletory. (212a)

By: Aguilba, Ray Dean

What are the obligations chargeable to separate property?

1. Support of illegitimate children of either spouse;

2. Liabilities by reason of crime or quasi-delict;

3. Expenses of litigation if found to be groundless;

4. Losses in any game of chance;

5. Debts contracted during the marriage (contracted without the consent of one spouse and which did not benefit the family);

6. Ante-nuptial debt which did not benefit the family;

7. Taxes incurred on a separate property which is not used by the family;

8. Expenses incurred during the marriage on a separate property ifnot for its preservation; and the property is not used by the family.

The following provision of the Family Code shall also govern the separate properties of each spouse:

Article 144.

Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. (213a)

By: Aguilba, Ray Dean

If in the marriage settlement the future spouses agreed on the system of complete separation of property, this cannot later on be converted during the marriage into the conjugal partnership of gains. The conjugal partnership and absolute community of property can, however, be converted into the separation of property regime during the marriage, provided there is judicial approval. Such judicial separation of property may either be voluntary or for sufficient cause.

The spouse may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest.

Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with the Family Code. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children.

After dissolution of the absolute community or of the conjugal partnership, the complete separation of property shall apply. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property.

GONZALO GARCIA, plaintiff-appellant, vs.

CONSOLACION MANZANO, defendant-appellee.

FACTS: Plaintiff filed by for the judicial declaration of the separation of their conjugal partnership property before Court of First Instance of Manila alleging that he and defendant are husband and wife but they have been living separately from each other since 1948, all attempts at reconciliation between them having failed; that plaintiff, a duly licensed doctor of veterinary science, used to be employed in the slaughter-house of the City of Manila, while defendant, with plaintiff’s knowledge and consent, engaged in the business of slaughtering large cattle and selling the fresh meat in the city; that as a result of their joint efforts, plaintiff and defendant acquired and accumulated real and personal properties; that upon the separation of the spouses, the defendant assumed the complete management and administration of the conjugal partnership property, has been enjoying said property as well as its accessions and fruits to the exclusion and prejudice of plaintiff, and has even fictitiously transferred or alienated a majority of said property in favor of third persons; that since defendant assumed the management and administration of the conjugal partnership property, she has neglected to file any income tax returns; that defendant has failed and refused to turn over and deliver to plaintiff his rightful share and participation in the conjugal partnership property and its fruits.

Defendant filed a motion to dismiss the complaint on the ground of failure to state a cause of action because “it does not allege any of the grounds recognized by Article 191 of the new Civil Code for decreeing a judicial separation of properties”. Plaintiff vigorously opposed the motion to dismiss, claiming that he is entitled to some relief, legal or equitable, under the allegations of his complaint, and that Article 191 of the new Civil Code may also be availed of by the husband where the administration of the conjugal partnership property has been forcibly taken from him by his wife and she abuses the management thereof. The lower court held that plaintiff’s complaint is not included under the provisions of Articles 190 and 191 of the new Civil Code providing for judicial separation of the conjugal partnership property, and that the husband being the legal administrator of the partnership and dismissed the complaint. Plaintiff moved for reconsideration, which was denied. Hence, this present appeal.

ISSUE: WON the complaint establishes a case for separation of property

HELD: NO, the complaint does not establish a case for separation of property. Consistent with its policy of discouraging a regime of separation and not in harmony with the unity of the family and the mutual affection and help expected of the spouses, the Civil Codes (both old and new) require that separation of property shall not prevail unless expressly stipulated in marriage settlements before the union is solemnized or by formal judicial decree during the existence of the marriage (Article 190, new Civil Code; Article 1432, old Code); and in the latter case, it may only be ordered by the court for causes specified in Article 191 of the new Civil Code:

ART. 191. The husband or the wife may ask for the separation of property, and it shall be decreed when the spouse of the petitioner; has been sentenced to a penalty which carries with it civil interdiction, or has been declared absent, or when legal separation has been granted.

In case of abuse of powers of administration of the conjugal partnership property of the husband, or in case of abandonment by the husband, separation of property may also be ordered by the court according to the provisions of articles 167 and 173, No. 3.

In the instant case plaintiff’s contention ignores the philosophy underlying the provisions in question. The wife is granted a remedy against the mismanagement or maladministration of the husband because by express provision of law, it is the husband who has the administration of the conjugal partnership. (ART. 165, ART. 172)

In the system established by the Code the wife does not administer the conjugal partnership unless with the consent of the husband, or by decree of court and under its supervision (Arts. 168, 196) “with such limitations as they (the courts) may deem advisable” (Art. 197 in relation to Article 196). Legally, therefore, the wife cannot mismanage the conjugal partnership property or affairs, unless the husband or the courts tolerate it. In the event of such maladministration by the wife the remedy of the husband does not lie in a judicial separation of property but in revoking the power granted to the wife and resume the administration of the community property and the conduct of the affairs of the conjugal partnership.

Wherefore, the judgment appealed from is affirmed, with costs against appellant. So ordered.

ARTICLE 145

BY:Cordero, Loida F. #4

ARTICLE 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property

ARTICLE 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties.

The liability of the spouses to creditors for family expenses shall, however , be solidary.

ILLUSTRATION

A and B are married. In their marriage settlement, they agreed on a regime of complete separation of property. A earns 20,000 .00 per month from the exercise of his profession. B earns 10,000.00 in the exercise of her profession. The expenses of the family shall be borne by them in the proportion of 2:1.

Lincoln L. Yao vs. Onorable Norma C. Perello, in her capacity as Presiding Judge of the Regional Trial Court, Branch 276, Muntinlupa City, The Ex-Oficio Sheriff, Regional Trial Court, Muntinlupa City and Bernadine D. Villarin

G.R. No. 153828 October 24,2003

Facts:

A complaint was filed by petitioner before the HLURB against PR Builders, Inc. and its managers, Enrico Baluyot and Pablito Villarin, private respondent’s husband.

HLURB issued a writ of execution against PR Builders and its managers, and referred the writ to the office of the Clerk of Court of Muntinlupa for enforcement.

Pursuant to the writ, the deputy sheriff levied on a parcel of land registered in the names of spouses Villarin and private respondent, Bernadine Villarin.

Private respondent filed before the RTC of Paranaque City, a petition for prohibition with prayer for temporary restraining order and/ or writ of preliminary injunction, seeking to enjoin Sheriff Melvin Bagabaldo from proceeding with the public auction.

Private respondent alleged that she co-owned the property subject of the execution sale, that the property regime between private respondent and her husband was complete separation of property, and that she was not a party in the HLURB case, hence the subject property could not be levied on to answer for the separate liability of her husband.

Judge Norma C. Perello issued a 72-hour temporary restraining order and set the case for raffle and conference.

A conference was then conducted, after which public judge issued the assailed resolution granting private respondent’s petition for prohibition and declaring the subject property exempted from execution. Hence, the scheduled auction sale did not materialize.

More than a month after public respondent judge issued the resolution, petitioner filed a motion for intervention and was denied under the ruling that this case has long been decided, hence the intervention was too late. There was no case for them to intervene.

Aggrieved, petitioner filed the instant petition for certiorari.

ISSUE: Whether or not the petitioner has the right to intervene.

HELD: No

As provided in the Rules of Court, the motion for intervention may be filed at any time before rendition of judgment by the trial court. Petitioner filed his motion only on April 25, 2002, way beyond the period set forth in the rules. The court resolution granting private respondent’s petition for prohibition and lifting the levy on the subject property was issued on March 22,2002. By April 6,2002, after the lapse of 15 days, the said resolution had already become final and executory.

To allow intervention, it must be shown that the movant has a legal interest in the matter in litigation or qualified and consideration must be given as to whether the adjudication of the rights of the original parties may be delayed or prejudiced, or whether the intervenor’s rights may be protected in a separate proceeding or not.

Besides, the mere fact that petitioner failed to move for the reconsideration of the trial court’s resolution was sufficient cause for the outright dismissal of the instant petition. Certiorari as a special civil action will not lie unless a motion for reconsideration was first filed before the respondent court to allow it an opportunity to correct its errors, if any.

Article 151

No suit between members of the same family shall
prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been made,but that the same have failed. If it is shown that no such effortswere in fact made, the case may be dismissed.

By: Ibanez, Jonathan M.

Law does not apply to strangers

The closest of blood relations constitute the family, such that the law limits those who are included in family relations. It does not include a brother-in-law or a sister-in-law.

Case : Gaudencio Guerrero vs. RTC, Branch XVI, Ilocos Norte, et al.229 SCRA 274, January 10, 1994 47 SCAD 229

Facts:

Gaudencio guerrero and pedro G. Hernando are brothers-inlaw. The latter filed an accion publiciana against the former without alleging that earnest efforts were resorted to settle the dispute before the case was filed. Hernando overlooked such fact and did not file a motion to dismiss, but during the pre-trial, the judge noticed their relationship, so, he gave five (5) days for guerrero to file a motion to dismiss. The judge dismissed the case on the ground of lack of jurisdiction because of the absence of an allegation of previous efforts towards reconciliation.

Issue:

Whether brothers-in-law are included in the provisions of Articles 149 and 151 of the Family Code.

Held:

Whether brothers-in-law are included in the provisions of Articles 149 and 151 of the Family Code.

Case: Pilar S. Vda. De Manalo, et al. vs. CA, et al.,
G.R. No. 129242, January 16,2001

FACTS:

Troadio manalo died leaving several heirs and several real properties. After his death, eight (8) of his children filed a petition for the judicial settlement of his estate. Some of the heirs including his surviving spouse moved to dismiss the petition contending that there was failure to comply with a condition precedent due to the absence of an allegation of earnest efforts toward a compromise among members of the same family. The motion was denied, hence, they raised before the supreme court in a petition for certiorari the denial of the said motion. They claimed that the petition for judicial settlement was actually an ordinary civil action involving members of the same family because of the following averments:

Held:

Concededly, the petition in SP. Proc. No. 92-63626 contains averments which may be typical of an ordinary civil action. Petitioners, as oppositors therein, took advantage of the said defect in the petition and filed their so-called opposition thereto which is actually an answer containing admissions and denials, special and affirmative defenses and compulsory counterclaims for actual, moral and exemplary damages, plus attorney’s fees and costs in an apparent effort to make out a case of an ordinary civil action and ultimately seek its dismissal under rule 16, section 1(j) of the rules of court vis-á-vis, article 222 of the civil code. (Now art. 151, family code).

Article 152

By Gladys Agaid-Lambayong

The family home, constituted jointly by the husband and the wife or by an unmarried head of the family, is the dwelling house where they and their family reside, and the land on which it is situated.

⮚ Article 152 defines what the family home is, which has the following requisites:

a. It is constituted jointly by the husband and wife or by an unmarried head of the family

b. it is a dwelling house where they actually, not presumptively or constructively, reside.

c. the land which the family home stands is a property of the spouses, not of another, thru the following modes:

c.1. absolute community

c.2. conjugal partnership

c.3. exclusive property of either of the spouses

If head of the family:

c.4. it must be his/her property

Article 153

The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as herein provided and to the extent of the value allowed by law.

By Gladys Agaid-Lambayong

⮚ Article 153 provides for how the family home is constituted, and in this provision-automatically, meaning without any need for judicial or extra judicial processes.

● Automatic constitution is hereby interpreted to have commenced only after the effectivity of this code on August 3, 1988 and progressively thereafter. It does not apply to situations or cases before August 3, 1988 (Modequillo Vs. Breva, GR No. 86355, March 31, 1990, 185 SCRA 766).

⮚ Article 153 also provides protection to family home from execution, forced sale or attachment except as provided by law (the exceptions are found in article 155) and of the extent of the value allowed.

● Actual residence hereby means physical occupancy by the husband and unmarried head of the family or any of its beneficiaries, not that of overseer.

● As to “value allowed by law” for the family home to be provided protection, it must be at least 300,000 in urban areas and 200,000 in rural areas (Felicitas Salazar Vs Remedios Felias, GR No. 213972, February 5, 2018)

⮚ Rationale why the family is to be protected from execution, forced sale or attachment:

“The family home is a sacred symbol of family love and it is the repository of cherished memories that last during one’s lifetime. It is the dwelling house where husband and wife, or an unmarried head of the family resides, including the land on which it is situated (Patricio Vs. Dario III, GR No. 170829).

● It is to avoid a situation where the family shall become homeless, such that it would become a lepper or burden to the society.

● The constitution specifically provides for the protection of the family.

Below is a case digest illustrating the provision of Article 153:

Modequillo vs. Breva

G.R. No. 86355, May 31, 1990

Petitioner: Jose Modequillo

Respondents: Hon. Augusto V. Breva, Francisco Salinas, et. al.

Ponente: Justice Gancayco

FACTS:

On January 29, 1988, the Court of Appeals rendered its judgement on a case entitled, Salinas, et al. vs. Modequillo, in favor of the petitioners and directing the respondent to jointly and severally pay its liabilities. A writ of execution was issued by the RTC to satisfy the judgement on the goods and chattels of the respondents.

On July 7, 1988, the sheriff levied on a parcel of residential land registered in the name of herein petitioner. The latter filed a motion to quash the levy of execution alleging therein that the residential land is where the family home was built and that such was exempt from execution, forced sale or attachment as provided in Articles 152 and 153 of the Family Code.

The RTC denied the motion to quash the levy of execution. A Motion for Reconsideration was filed but was denied.

ISSUE:

Whether or not a final judgement of the Court of Appeals in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code.

RULING:

NO. Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as family residence. There is no need to constitute the same juridically or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. The exemption provided in Article 155 of the Family Code provides that is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987. The family home is not exempt from execution of the money judgement.

The petition was DISMISSED.

Article 154

The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a)

By: Pomintel-Acuno, Florabel

· The law merely enumerates the beneficiaries of the family home.

· Family home is the dwelling where the family resides and the land on which it is situated.

· Once it is occupied by the family as a residence, it is deemed constituted, thereby abandoning the earlier principle of judicial constitution of a family home.

· The family home is a sacred symbol of family love and is the repository of cherished memories that last during one’s lifetime.

Article 155

The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a).

By: Pomintel-Acuno, Florabel

· As can be glanced from Article 153, the moment the family home is constituted , it is exempted from execution, forced sale or attachment.

· These are the protections given by law to the family home, which really needs and is deserves protection as the home is seat and symbol of family affection and it should not be liable to be seized for debts except in certain special cases, as enumerated in Article 155.

· If there were debts or liabilities incurred prior to the constitution of the family home, then, the latter can be attached or levied upon to answer for the same.

Illustration:

a. If the owner of the family homw secured a debt using it as a security for the payment of his obligation, and if he does not pay them, below are allowed by law by way of exception to the rule against attachment

Ø the creditor can sue him and attach the family home

Ø if judgment has already been rendered and it has already become final and executory, it can be levied upon and sold to answer for such debt

Ø the creditor can also foreclose the mortgage if he wants to

b. If the owner of the family home constructed the house out of the materials supplied by friends; labor was not paid, the architects, etc. were not paid, below acts is not prohibited by law, no shall enrich himself at the expense of another

Ø they can sue the owner for payment

Ø they can even attach the family home

Ø levy upon it, if judgment has already been rendered

Family home is exempted from forced sale etc.

· unquestionably, the family home is exempt from execution

· the great controlling purpose and policy of the Constitution is the protection or the preservation of the homestead, the dwelling place

· a houseless, homeless population is a burden upon the energy, industry and morals of the community to which it belongs

· exemption is limited to the particular kind of property or the specific articles prescribed by the statute

· the exemption cannot exceed the statutory limit

Duties of the court when there is invocation of exemption of family homes from attachment, etc

· where a judgment or judicial order is void it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head

· upon being apprised that the property subject of execution allegedly constitutes petitioner’s family home, the trial court should:

o determine if it falls under either of the exceptions under this Article

o make an inquiry into the veracity of the petitioner’s claim that the property is indeed a family home

o if the property is accordingly found to constitute a family home, the court should determine;

§ if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of the Family Code

§ if the petitioner’s spouse is still alive, as well as if there are other beneficiaries of the family home

§ if the petitioner has more than one residence for the purpose of determining which of them, if any, is his family home

§ its actual location and value, for the purpose of applying the provisions of Article 157 and Article 160 of the Family Code

Exemption must be claimed, otherwise party may be estopped

· a claim for exemption from execution of the family home should be set up and proved before the sale of the property at public auction

· failure to do so would estop the party from claiming the exemption since the right of exemption is a personal privilege granted to the judgment debtor

CASE DIGEST

Case : JOSE MODEQUILLO, petitioner,

vs.

HON. AUGUSTO V. BREVA, FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF FERNANDO PLATA respondents

Citation : G.R. No. 86355

Date : May 31, 1990

Ponente : Justice Gancayco

FACTS:

On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No. 09218 entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al.". The said judgment having become final and executory, a writ of execution was issued by the Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo and Benito Malubay at Malalag, Davao del Sur.

A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein that the residential land located at Poblacion Malalag is where the family home is built since 1969 prior to the commencement of this case and as such is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof, and that the judgment debt sought to be enforced against the family home of defendant is not one of those enumerated under Article 155 of the Family Code. As to the agricultural land although it is declared in the name of defendant it is alleged to be still part of the public land and the transfer in his favor by the original possessor and applicant who was a member of a cultural minority was not approved by the proper government agency. An opposition thereto was filed by the plaintiffs.

In an order dated August 26, 1988, the trial court denied the motion. A motion for reconsideration thereof was filed by defendant and this was denied for lack of merit on September 2, 1988. Hence, the herein petition for review on certiorari wherein it is alleged that the trial court erred and acted in excess of its jurisdiction in denying petitioner's motion to quash and/or to set aside levy on the properties and in denying petitioner' motion for reconsideration of the order dated August 26, 1988.

ISSUE:

WON a final judgment of the Court of Appeals in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code.

HELD:

The residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987.

The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not well- taken. Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect.

Defendant’s family home is not exempt from the execution of the money judgment. The debt or the liability, which was the basis of the judgment that arose, was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment, arising therefrom rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on august 3, 1988. This case does not fall under the exemptions from execution provided in the Family Code.

Articles 156

The family who must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter’s consent. It may also be constituted by an unmarried head of the family on his or her own property.

Nevertheless, property that is the subject of the conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home.

By: Rosales, Gayle Marion R.

ANNOTATION:

The law simply says that the family home is a part of the properties of the absolute community or the conjugal partnership. It can even be a part of the exclusive property of the husband and wife.

ILLUSTRATION:

A and B are married with 5 children. They constructed a house on a lot which they bought after their marriage. The family home is a part of their absolute community or conjugal partnership.

If the lot belongs exclusively to A, he may even construct a house on it from his exclusive money, and that is his exclusive property; yet, it is still a family home.

G.R. No. 185064, 16 January 2012

SPOUSES ARACELI OLIVA-DE MESA, et al. v. SPOUSES CLAUDIO D. ACERO, JR., et al.

Reyes, J.

FACTS:

Claudio D. Acero Jr., being the highest bidder, acquired the ownership of a parcel of land formerly owned by petitioners Araceli Oliva-De Mesa and Ernesto S. De Mesa (Spouses De Mesa). The property was sold at a public auction after Spouses De Mesa failed to pay the loan they secured from Acero. Thereafter, respondents Acero and his wife Rufina (Spouses Acero) leased the subject property to its former owners who then defaulted in the payment of the rent. Unable to collect the rentals due, Spouses Acero filed a complaint for ejectment with the Municipal Trial Court (MTC) against Spouses De Mesa. The MTC ruled in Spouses Acero’s favor.

In their defense, Spouses De Mesa filed a complaint with the Regional Trial Court (RTC), seeking to nullify TCT No. T-221755 (M) on the basis that the subject property is a family home which is exempt from execution under the Family Code, and thus, could have not been validly levied upon for purposes of satisfying their unpaid loan. However, the RTC dismissed their complaint. The Court of Appeals (CA) affirmed the RTC’s Decision.

ISSUE:

Whether or not the family home is exempted from execution

RULING:

Petition DENIED. Indeed, the family home is a sacred symbol of family love and is the repository of cherished memories that last during one’s lifetime. It is likewise without dispute that the family home, from the time of its constitution and so long as any of its beneficiaries actually resides therein, is generally exempt from execution, forced sale or attachment. The family home is a real right, which is gratuitous, inalienable and free from attachment. It cannot be seized by creditors except in certain special cases. However, this right can be waived or be barred by laches by the failure to set up and prove the status of the property as a family home at the time of the levy or a reasonable time thereafter.

For all intents and purposes, the negligence of Petitioners De Mesa or their omission to assert their right within a reasonable time gives rise to the presumption that they have abandoned, waived or declined to assert it. Since the exemption under Article 153 of the Family Code is a personal right, it is incumbent upon the De Mesa to invoke and prove the same within the prescribed period and it is not the sheriff’s duty to presume or raise the status of the subject property as a family home.

Article 157

The actual value of the family home shall not exceed, at the time of its constitution, the amount of three hundred thousand pesos in urban areas, and two hundred thousand in rural areas, or such amount as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include charactered cities and municipalities whose annual income at least equals that legally required for charactered cities. All others are deemed to be rural areas.

By: Rosales, Gayle Marion R.

Article 158

The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter’s spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide.

By: Rosales, Gayle Marion R.

The law merely states the value of the family home depending upon its location.

The family home can be the object of a contract, like sale, assignment or donation. It can be encumbered as it can be used to secure the payment of an obligation. It must, however, be with the written consent of the person constituting it, or his spouse, and a majority of the beneficiaries of legal age. If there is conflict, the court shall decide for them.

Article 159

The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneﬁciary, and the heirs cannot partition the same unless the court ﬁnds compelling reasons thereof. This rule shall apply regardless of whoever owns the property or constituted the family home.

By: Valbuena, Dona M.

Restrictions imposed by Art. 159

The purpose of this article is to avert the disintegration of a family unit following the death of its head. It preserves the family home as the physical symbol of family, love, security and unity by imposing the following restrictions:

1. The heirs cannot extra-judicially partition the family home for a period of ten years from the death of one or both spouses or unmarried head of the family or for a longer period if there is still a minor beneficiary therein;

2. The heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling reasons therefore.

The proscription under this article subjugates the rights of individual heir or the right to succession because this article has given protection to the beneficiaries of the family home.

Often mentioned as an illustration of Article 159 is G.R. 177703, promulgated on January 28, 2008 (Ariola versus Ariola)

Ariola versus Ariola, G.R. No. 177703

January 28, 2008 (p. 835 of Albano)

Ponente- Justice Maria Alicia Austria Martinez

Facts of the Case:

John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial Court, Branch 254, Las Piñas City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial partition of the properties of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C. Calabia, while petitioner Anthony is the son of decedent Fidel with his second wife, petitioner Vilma.

On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads:

Ordering the partition of a parcel of land covered by Transfer Certificate of Title No. 383714 (84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without prejudice to the rights of creditors or mortgagees thereon.

The decision became final on March 15, 2004. Parties failed to agree on how to divide subject property thus respondent petitioned the RTC to sell the land at public auction. Petitioners refused to participate when they refused to include the improvement or the house at the subject property. Respondent filed a contempt of court against the petitioners but the RTC denied the motion and held that the defendants [petitioners] are correct in holding that the house or improvement erected on the property should not be included in the auction sale.

Respondent filed with the CA a Petition for Certiorari where he sought to have the RTC Orders set aside, and prayed that he be allowed to proceed with the auction of the subject land including the subject house.

In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit:

WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, and the sheriff is ordered to proceed with the public auction sale of the subject lot covered by TCT No. 383714, including the house constructed thereon.

Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution dated April 30, 2007.

Issue:

Whether or not the CA erred in ordering that the improvement/house on subject property TCT No. 383714 must be included in a public auction.

Held:

Yes. The CA is correct on its decision sustaining the co-ownership and partition of the house on subject property. However, the Court mentioned the provisions of Article 159 of the Family Code on the protection of a Family Home from alienation for at least ten years from the death of the head of the family or both of the spouses.

In this case Fidel died on March 10, 2003, partition of the family house could only be possible on March 10, 2013. The Court held that the family home as EXEMPTED from partition by public auction within the period provided for in Article 159 of the Family Code.

Article 160

When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

By: Valbuena, Dona M.

Illustration for Article 160

A filed a suit against B and C, the owners of a family home. Judgment was rendered at P1,000,000.00. Knowing that the family home is worth more than P300,000.00 he moved that the same be sold on execution which was granted. It was sold at P1,500,000. The proceeds shall be divided into:

1. P1,000,000.00 to be delivered to A, as payment for the debt

2. P300,000.00 to be delivered to B and C, the amount of family home pursuant to Article 157 of the Family Code (P300,000.00 for urban area and P200,000.00 for rural area)

3. P200,000.00 - goes to B and C, which is the excess

Article 164.

Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)

By: Laurente, Ivy M

Article 165

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)

By: Laurente, Ivy M

DISCUSSION:

If a child is born of an incestuous marriage, the child is illegitimate because the marriage is void.

If a child likewise is born of a marriage in violation of Article 38 or against public policy, the child is illegitimate because the marriage is void.

Or even if the child is born of two persons who have the capacity to marry each other, if they are still unmarried, he is illegitimate, because he was born outside of a valid marriage.

Meanwhile, there are exceptions, there are void marriages that can produce legitimate children, like those under Article 52 and 36, prior to the declaration of their nullity ; yet all other marriages that are void – under Articles 35, 37 and 38 – cannot produce legitimate children prior to the declaration of their absolute nullity. There are only two marriage that are void ab initio that produce legitimate children prior to their declaration of nullity. The reason is that, there is a presumption of legitimacy of a child born within wedlock, that even if the marriage is subsequently declared void, for as long as the child conceived or born prior to the declaration of nullity oof the marriage, the child is presumed to be legitimate. The marriage in Article 37 and in violation of Article 53 are legitimate because the children should not be blamed for the misfortunes or misgivings of their parents.

Concepcion vs. CA

G.R. 123450

August 31, 2005

PONENTE: CORONA, J.

Facts:

Petitioner Gerardo and Ma. Theresa were married. After a year later, Ma. Theresa gave birth to Jose Gerardo. Gerardo and Ma. Theresa's relationship turned out to be short -lived. Subsequently, Gerardo filed a petition for annullment on the ground of bigamy. He alleged that nine years before he married Ma. Theresa she had married one Mario Gopiao, and the said marriage was allegedly never annulled.

The trial court ruled that Ma. Theresa's marriage to Mario was valid and subsisting before he married Gerardo therefore the marriage between Theresa and Gerardo was annulled.

Regarding custody of their son, it was awarded to Ma. Theresa while Gerardo was granted visitation rights. Prior to the decision, Ma. Theresa moved for reconsideration in so far only as to the portion of decision granting visitation rights to Gerardo. She argued that there was nothing in the law granting "visitation rights in favor of the putative father of an illegitimate child." She further clamed to change the surname of Jose from Conception to Almonte.

The trial court denied the motion and the case was elevated to the Court of Appeals. CA denied the petition and affirmed the decision of the trial court. Ma. Theresa moved for reconsideration. The appellate court resolved the motion by reversing its earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage. Gerardo moved for a reconsideration but the same was denied.

Issue: WON Jose Gerardo is an illegitimate child of Gerardo.

Held:

No. Article 164 of the Family Code is clear. The status and filiation of a child cannot be compromised. A child who is conceived or born during the marriage of his parents is legitimate.

In this case there is no such evidence, thus presumption of legitimacy in favor of Jose Gerardo stands. Article 167 provides that the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child cannot affect the legitimacy of a child born or conceived within a valid marriage. A mother has no right to disavow a child because maternity is never uncertain. Hence, Ma. Theresa is not permitted by law to question Jose Gerardo’s legitimacy. For reasons of public decency and morality, a married woman cannot say that she had no intercourse with her husband and that her offspring is illegitimate. Public policy demands that there be no compromise on the status and filiation of a child. Otherwise, the child will be at the mercy of those who may be so minded to exploit his defenselessness. Jose Gerardo is a legitimate child thus shall have the right to bear the surnames of his father Mario and mother Theresa, in conformity with the provisions of the Civil Code on surnames. Hence, Gerardo cannot impose his surname on Jose Gerardo who is, in the eyes of the law, not related to him in a way.

Since there is no such parent-child relationship between them, thus, Gerardo has no legally demandable right to visit Jose Gerardo.

ARTICLE 166

Legitimacy of a child may be impugned only on the following grounds;

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

- period of conception

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164;

Examples:

Ø Racial dissimilarity

Ø DNA Test

Physical resemblance is insufficient evidence to prove the illegitimacy of the child unless accompanied by strong evidence.

In artificial insemination, physical differences may result between the child and the father.

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

By: Sarmiento, Sheryl

Andal Vs. Macaraig 89 Phil 165
Plaintiffs: Mariano Andal, Assisted By His Mother Maria Dueñas As Guardian Ad Litem, And Maria Dueñas
Defendant: Eduvigis Macaraig
Ponente: Bautista Angelo, J

FACTS

• The defendant Eduvigis Macaraig filed a petition of certiorari to the Supreme Court on the decision of the Court of First Instance declaring Mariano Andal as the legitimate child of her son, Emiliano Andal and approving the claim of the plaintiff on a parcel of land owned by Emiliano through the donation of the defendant.

• Emiliano has an illness of tuberculosis and was living with his wife Maria and his brother Felix. On Sept. 10, 1942, Emiliano’s disease worsens and he became bedridden. The same day his wife eloped with his brother. Accordingly, Felix and Maria had a sexual relationship since May 1942 and treating each other as husband and wife. Jan. 1, 1943, Emiliano died and Maria Dueñas gave birth to a boy given the name Mariano Andal on June 17, 1943.

ISSUE
Whether or not Mariano Andal is the legitimate child of the deceased?

HELD

• Yes, Mariano Andal is the legitimate child of the deceased. Children born after the one

• hundred and eighty days next following that of the celebration of marriage or within the three hundred days next following its dissolution or the separation of the spouses shall be presumed to be legitimate. This presumption may be rebutted only by proof that it was physically impossible for the husband to have had access to his wife during the first one hundred and twenty days of the three hundred next preceding the birth of the child.

• The boy was born on June 17, 1943, and Emiliano Andal died on January 1, 1943, that boy is presumed to be the legitimate son of Emiliano and his wife, he having been born within three hundred (300) days following the dissolution of the marriage. This presumption can only be rebutted by proof that it was physically impossible for the husband to have had access to his wife during the first 120 days of the 300 next preceding the birth of the child. There is no evidence presented that Emiliano Andal was absent during the period which is included in the 120 days of the 300 days preceding the birth of the child nor there is evidence to show that Emiliano was suffering from impotency. The presumption under the Civil Code in favor of the child was not therefore been overcome. Hence, Mariano Andal is the legitimate child of the deceased.

Article 167

The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

By: Sarmiento, Sheryl

RULE:

“Every reasonable presumption should be made in favor of legitimacy”

• Conviction of the wife for adultery and declaration of the mother against the legitimacy of the child is inadmissible as evidence to rebut the presumption of legitimacy.

Gerardo Concepcion v. Court of Appeals and Ma. Theresa Almonte
G.R. No. 123450, August 31, 2005

FACTS

• Petitioner Gerardo Concepcion and private respondent Ma. Theresa Almonte were married in 1989. Almost a year later, Ma. Theresa gave birth to Jose Gerardo. In 1991, however, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of bigamy. He alleged that 9 years before he married private respondent, the latter had married one Mario Gopiao, which marriage was never annulled. The trial court ruled that Ma. Theresa’s marriage to Mario was valid and subsisting when she married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose Gerardo to be an illegitimate child as a result. The custody of the child was awarded to Ma. Theresa while Gerardo was granted visitation rights. The Court of Appeals reversed the decision and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during his first marriage.

ISSUE

Whether or not the Court of Appeals correctly ruled that Jose Gerardo is a legitimate child of Mario and not petitioner Gerardo.

HELD

• Yes. Under Article 164 of the Family Code, a child who is conceived or born during the marriage of his parents is legitimate. In the present case, since the marriage between Gerardo and Ma. Theresa was void ab initio, the marriage between Mario and Ma. Theresa was still subsisting at the time Jose Gerardo was conceived, and thus the law presumes that Jose Gerardo was a legitimate child of private respondent and Mario. Also, Gerardo cannot impugn the legitimacy of the child because such right is strictly personal to the husband or, in exceptional cases, his heirs. Since the marriage of Gerardo and Ma. Theresa was void from the very beginning; he never became her husband and thus never acquired any right to impugn the legitimacy of her child.

• The petition was denied.

Article 170

The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

By: Aguilba, Ray Dean

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

CASE DIGEST

BABIERA V.CATOTAL

G.R. No. 138493, June 15, 2000

FACTS:

Presentacion B. Catotal filed a petition for the cancellation of the entry of birth of Teofista Babiera. From the petition filed, Presentacion asserted the following:

a.That she was the only surviving child of the late spouses Eugenio Babiera and Hermogena Cariñosa, who died on May 26, 1996 and July 6, 1990 respectively;

b.That on September 20, 1996 a baby girl was delivered by “hilot” in the house of spouses Eugenio and Hermogena Babiera and without the knowledge of said spouses, Flora Guinto, the mother of the child and a housemaid of spouses Eugenio and Hermogena Babiera, caused the registration/recording of the facts of birth of her child, by simulating that she was the child of the spouses Eugenio, then 65 years old and Hermogena, then 54 years old, and made Hermogena Babiera appear as the mother by forging her signature that petitioner, then 15 years old, saw with her own eyes and personally witnessed Flora Guinto give birth to Teofista Guinto, in their house, assisted by “hilot”;

c.That the birth certificate of Teofista Guinto is void ab initio, as it was totally a simulated birth, signature of informant forged, and it contained false information.

Teofista filed a motion to dismiss on the grounds that “the petition states no cause of action, it being an attack on the legitimacy of the respondent as the child of the spouses Eugenio Babiera and Hermogena Cariñosa Babiera; that plaintiff has no legal capacity to file the instant petition pursuant to Article 171 of the Family Code; and finally that the instant petition is barred by prescription in accordance with Article 170 of the Family Code.

ISSUE:

Whether or not a certificate of live birth is sufficient to establish the legitimacy of a child regardless of the fact that the same is obtained by fraud or that it contained some irregularities.

RULING:

No. The present case alleged and showed that Hermogena did not give birth to petitioner. The prayer was not to declare that petitioner was an illegitimate child of Hermogena, but to establish that the former was not the latter’s child at all. The action did not impugn petitioner’s filiation to Spouses Eugenio and Hermogena Babiera, because there was no blood relation to impugn in the first place.

While it is true that an official document such as petitioner’s Birth Certificate enjoys the presumption of regularity, the specific facts attendant in the case, as well as the totality of the evidence presented during trial, sufficiently negate such presumption. First, there were already irregularities regarding the Birth Certificate itself. It was not signed by the local civil registrar. More important, the Court of Appeals observed that the mother’s signature therein was different from her signatures in other documents presented during the trial.

The circumstances surrounding the birth of petitioner show that Hermogena was not the former’s real mother. There was no evidence of Hermogena’s pregnancy, such as medical records and doctor’s prescriptions, other than the Birth Certificate itself. Moreover, at the time of her supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have given birth at such a late age, it was highly suspicious that she did so in her own home, when her advanced age necessitated proper medical care normally available only in a hospital. The most significant piece of evidence, however, was the deposition of Hermogena Babiera which stated that she did not give birth to petitioner, and that the latter was neither hers nor her husband Eugenio’s.

Article 171

The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.

A legitimate child may not impugn his own legitimacy to become an illegitimate child of another. The child cannot choose his own filiation.

By: Aguilba, Ray Dean

CASE DIGEST

LIYAO, JR. VS. TANHOTI-LIYAO 378 SCRA 563MARCH 7, 2002

FACT:

Corazon G. Garcia is legally married but has been living separately from Ramon Yulo for more than 10 years. She cohabited with William Liyao from 1965 up to his death. Some witnesses, however, testified that Corazon and her husband were seen in each other’s company during the supposed time Corazon cohabited with William Liyao. On June 9, 1975, Corazon gave birth to William Liyao Jr. Since birth, William Jr, also known as Billy, had been in continuous possession and enjoyment of the status of a recognized and/ or acknowledge child of William Liyao by the latter’s direct and overt act. During William Liyao birthday he was carrying Billy and told everybody present, including his daughters, “Look, this is my son, very guapo and healthy”. He talked about plans for the baptism of Billy. Unfortunately, it did not happen due to his untimely death on December 2, 1975.On November 29, 1976, William Liyao, Jr, represented by his mother Corazon G. Garcia filed a civil action for compulsory recognition as “the illegitimate son the late William Liyao. The Regional Trial Court granted his petition, however the Court of Appeals reversed the decision saying that the law favors the legitimacy rather than the illegitimacy of the child. The petition was filed for review on certiorari.

ISSUE:

Whether or not the petitioner may impugn his own legitimacy to be able to claim from the estate of his supposed father William Liyao.

HELD:

No. Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate. Impugning the legitimacy of the child, is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that is the one directly confronted with the scandal. Only in exceptional cases may his heirs allowed to contest such legitimacy. There is nothing on the records to indicate that Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of the initiation of proceedings. The Court held that it is settle that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress; the child himself cannot choose his own affiliation if the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child if fixed, and the latter cannot choose to be the child of his mother’s paramour.

Chapter 2

Proof of Filiation

Article 172

The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment:

(2) An Admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned;

In the absence of the foregoing evidence, the legitimate filiation shall be

proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)

By: Austria,Honeylee B.

l Filiation may now be established through forensic Deoxyribonucleic acid or DNA.

l Record of birth

-Must be signed by the Father to prove filiation, otherwise it is incompetent evidence to proof the filiation of the child to the father

l Order of the Court

-the decision of a court to prove the filiation of the child to the father in order that she/he may prove the right to inherit.

l Authentic Writing

- Father of the child executed a will instituting such child as one of the heirs and recognized child. May be Public or Private

l Private Writing

- must be handwritten by the father and signed by him otherwise it is not admissible. The requisites are mandatory.

l Open and continuous possession of the status of an illegitimate child

l Other Means to prove filiation

- Baptismal Certificate, Judicial admission, common reputation respecting the same pedigree, admission by silence and testimonies form witnesses and other kinds of proof under Rule 130 of the Rules of Court.

CONSOLACION LUMAHIN DE APARICIO vs. HIPOLITO PARAGUYA,

G.R. No. L-29771

Facts:

Trinidad Montilde, a young lass of Tubigon, Bohol had a love affair with a priest, Rev. Fr. Felipe Lumain and in the process she conceived. When she was almost four (4) months pregnant and in order to conceal her disgrace from the public she decided to marry Anastacio Mamburao. Father Lumain solemnized their marriage on March 4, 1924. 192 days after the marriage, Trinidad gave birth to Consolacion Lumain. As shown by her birth certificate her registered parents are Trinidad and Anastacio. On October 31, 1936, Fr. Lumain died but he left a last will and testament wherein he acknowledged Consolacion as his daughter and instituted her as the sole and universal heir of all his property rights and interests. Soon after reaching the age of majority Consolacion filed an action in the Court of First Instance of Bohol against Hipolito Paraguya for the recovery of certain parcels of land she claims to have inherited from her father Fr. Lumain and for damages.

Issue:

Whether or not Consolacion Lumahin de Aparicho is entitled to inherit the property of the deceased Fr. Felipe Lumain.

Held:

Consolacion having been born After the 180 days following the celebration, shall be presumed the legitimate child of the spouses Trinidad and Anastacio. Moreover the plaintiff's filiation of being a legitimate child is proven by the record of birth appearing in the Civil Registry. In the will of Fr. Lumain she was acknowledge as his natural daughter and designeted as his only heir.

ARTICLE 173

BY: Cordero, Loida F #4

ARTICLE 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.

Illustration:

A has a son B. A filed a suit to claim legitimate filiation. During the pendency of the action, A died. Can his own children continue the action?

Yes, because the law says that the action already commenced by the child shall survive notwithstanding the death of either or both of the parties. So, even with the death of A, his children/ heirs can continue with the action.

The rule is the same even if A is dead or both A and B are dead.

ARTICLE 174. Legitimate children shall have the right:

To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames.
To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on support; and
To be entitled to the legitime and other successional rights granted to them by the Civil Code.

Illustration:

A and B are married. They have a daughter C. They arranged the marriage of C with D, the son of their friend with a warning that if C would refuse to marry D, they would disinherit her. If C refuses and she is disinherited, the act is not proper as it is not a ground for disinheritance under the law.

If the child who is entitled to inherit dies ahead of the parent, then, the child’s offsprings may inherit what their parent was entitled to by right of representation, where they would be elevated to the level of their father but they are limited only to the extent that their parent was entitled to inherit from their parent’s predecessor-in-interest.

Alejandra Arado Heirs: Jesusa ARADO, Victoriano Alcoriza, Pedro Arado, Heirs: Juditho Arado, Jennifer Arado, Bobbie Zito Arado. Shirly Abad, Antonieta Arado, Nelson Somoza, Juvenil Arado, Nicetas Ventula, and Nila Arado, Pedro Arado, Tomasa V. Arado vs. Anacleto Alcoran and Elenette Sunjaco

G. R. No. 163362 July 8,2015

Facts:

Raymundo Alcoran was married to Joaquina Arado, and got a child named Nicolas Alcoran. Nicolas Alcoran married to Florencia but had no offspring. Nicolas had an extramarital affair with Francisca Sarita, who gave birth to respondent Anacleto Alcoran on July 13,1951.

Raymundo died leaving properties to Nicolas and his wife. Nicolas died subsequently leaving the properties to his illegitimate son. Joaquina died shortly thereafter with a will. Anacleto Alcoran claims entitlement to the properties as the heir of Nicolas and by virtue of the will executed by Joaquina.

Issue: Whether or not an illegitimate child has a right to inherit from his father.

Held:

No, an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother as provided under Article 992 of the Civil Code; in the same manner, such children or relatives shall not inherit from the illegitimate child. As certified in Diaz v. Intermediate Appellate Court, the right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent.

Without the showing that the respective estates of Raymundo, Nicolas and Joaquina had been previously partitioned, The Court concludes and holds that none of the parties herein can lay claim over any of the disputed specific properties. The petitioners cannot contend, therefore, that they were the rightful owners of the properties of the late Joaquina to the exclusion of Anacleto. Thus, the Court uphold the dismissal of the petitioner’s complaint for recovery of such properties and order to pay the costs of suit.

Article 149

The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.

By:Guiang, Aprilyn

The constitution recognizes the importance of the family by providing that:

(Art.II Sec 12, 1987 Constitution)

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The national and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Family Code expressly provides that the family is the foundation of the nation and a basic social institution that public policy cherishes and protects. As such, no custom, practice or agreement destructive of the family shall be recognized or given effect.

Article 150

Family relations include those:

1. Between husband and wife

2. Between parents and children

3. Among other ascendants and descendants; and

4. Among brothers and sisters, whether of the full or half-blood. (217a)

By:Guiang, Aprilyn

Article 150 enumerates the members of the family and gives emphasis how it is related based on family relations such as husband, wife, children, brother and sisters, whether full or half-blood.

Case:

HEIRS OF DR. MARIANO FAVIS SR., Petitioners, vs. JUANA GONZALES, Respondents.

G.R. No. 185922, January 15, 2014

Ponente : Justices JOSE PORTUGAL PEREZ

Facts:

Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar (Capitolina) with whom he had seven children. When Capitolina died in March 1944, Dr. Favis took Juana Gonzales (Juana) as his common-law wife with whom he sired one child, Mariano G. Favis (Mariano). When Dr. Favis and Juana got married in 1974, Dr. Favis executed an affidavit acknowledging Mariano as one of his legitimate children. Mariano is married to Larcelita D. Favis (Larcelita), with whom he has four children.

Dr. Favis died intestate on 29 July 1995 leaving properties. On 16 October 1994, he allegedly executed a Deed of Donation transferring and conveying properties in favor of his grandchildren with Juana.

Claiming that said donation prejudiced their legitime, Dr. Favis’ children with Capitolina, petitioners herein, filed an action for annulment of the Deed of Donation, inventory, liquidation and partition of property before the RTC against Juana, Spouses Mariano and Larcelita and their grandchildren as respondents.

RTC nullified the Deed of Donation. The trial court found that Dr. Favis, at the age of 92 and plagued with illnesses, could not have had full control of his mental capacities to execute a valid Deed of Donation.

The Court of Appeals ordered the dismissal of the petitioners nullification case. The CA motu proprio ordered the dismissal of the complaint for failure of petitioners to make an averment that earnest efforts toward a compromise have been made, as mandated by Article 151 of the Family Court.

Issue:

Whether or not the appellate court may dismiss the order of dismissal of the complaint for failure to allege therein that earnest efforts towards a compromise have been made?

Held:

Yes, the appellate court may dismiss the order of dismissal of the complaint for failure to allege therein that earnest efforts towards a compromise have been made under Article 151 of the Family Code. However, The appellate court’s reliance on this provision is misplaced. Rule 16 treats of the grounds for a motion to dismiss the complaint. It must be distinguished from the grounds provided under Section 1, Rule 9 which specifically deals with dismissal of the claim by the court motu proprio. Section 1, Rule 9 of the 1997 Rules of Civil Procedure.

Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis pendentia ; (c) res judicata ; and (d) prescription of action.Specifically in Gumabon v. Larin, cited in Katon v. Palanca, Jr., the Court held:

x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when the court clearly had no jurisdiction over the subject matter and when the plaintiff did not appear during trial, failed to prosecute his action for an unreasonable length of time or neglected to comply with the rules or with any order of the court. Outside of these instances, any motu proprio dismissal would amount to a violation of the right of the plaintiff to be heard. Except for qualifying and expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of Court, the amendatory 1997 Rules of Civil Procedure brought about no radical change. Under the new rules, a court may motu proprio dismiss a claim when it appears from the pleadings or evidence on record that it has no jurisdiction over the subject matter; when there is another cause of action pending between the same parties for the same cause, or where the action is barred by a prior judgment or by statute of limitations. x x x.

The error of the Court of Appeals is evident even if the consideration of the issue is kept within the confines of the language of Section 1(j) of Rule 16 and Section 1 of Rule 9. That a condition precedent for filing the claim has not been complied with, a ground for a motion to dismiss emanating from the law that no suit between members from the same family shall prosper unless it should appear from the verified complaint that earnest efforts toward a compromise have been made but had failed, is, as the Rule so words, a ground for a motion to dismiss. Significantly, the Rule requires that such a motion should be filed "within the time for but before filing the answer to the complaint or pleading asserting a claim." The time frame indicates that thereafter, the motion to dismiss based on the absence of the condition precedent is barred. It is so inferable from the opening sentence of Section 1 of Rule 9 stating that defense and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. There are, as just noted, only four exceptions to this Rule, namely, lack of jurisdiction over the subject matter; litis pendentia ; res judicata ; and prescription of action. Failure to allege in the complaint that earnest efforts at a compromise has been made but had failed is not one of the exceptions. Upon such failure, the defense is deemed waived.

Article 183

A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to
support and care for his children, legitimate or illegitimate, in keeping with the means of the family.

Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title. In addition,

The adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, E.O. No. 91 and P.D. No. 603)

By: Ibanez, Jonathan M.

Sec. 7. Who may adopt. — The following may adopt: Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his her children in keeping with the means of the family. The requirement of sixteen (16) years difference between the age of the adopted and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent;

Qualifications of an adopter:

(A) He must be of age;

(B) He must be in possession of full civil capacity and legal rights;

(C) He must be at least sixteen years older than the adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted;

(D) He must be of good moral character;

(E) He has not been convicted of any crime involving moral Turpitude.

Article 184.

The following persons may not adopt:

(1) the guardian with respect to the ward prior to the Approval of the final accounts rendered upon the termination of Their guardianship relation;

(2) any person who has been convicted of a crime involving Moral turpitude;

(3) an alien, except: (A) A former Filipino citizen who seeks to adopt a Relative by consanguinity;

(B) one who seeks to adopt the legitimate child of his Or her Filipino spouse; or

(C) one who is married to a filipino citizen and seeks To adopt jointly with his or her spouse a relative by Consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country Adoption as may be provided by law. (28a, E.O. No. 91 and P.D. No. 603).

By: Ibanez, Jonathan M.

Moral turpitude a disqualification to adopt.

A person who has been convicted of a crime involving moral turpitude cannot adopt because such person has shown lack of good moral character. It is said that the convict cannot set a good example for the child to emulate. It must be recalled that the parent plays a role model for a child especially so that the foremost consideration is the development of a child. RA 8225 has converted this disqualification into qualification of an adopter.

Conviction is necessary because a person is presumed to be Innocent unless the contrary is proved.

To illustrate, x is charged of a crime involving moral Turpitude and was convicted He appealed.

Pending appeal, can he adopt?

Yes, because the law requires prior conviction of a crime involving moral turpitude before he can be Disqualified to adopt. The conviction must be final and executory.

Under the law, an alien may not adopt, except:

(A) A former Filipino citizen who seeks to adopt a relative by consanguinity within the fourth civil degree.

Illustration: x, a Filipino citizen, went to the US.A. And later on came back to the Philippines and wants to adopt a nephew. Under this situation, the law allows him to adopt. (Art. 184, par. 3[a], family code). Art. 184 family code of the Philippines title vii — adoption 652 persons and family relations

(B) one who seeks to adopt the legitimate son/daughter of his or her Filipino spouse.

Illustration:

X, an American, is married to Y, a Filipina. Before y’s marriage to X, she had a child with her deceased husband. The American husband of Y can adopt the child of Y.

(C) one who is married to a filipino citizen and seeks to adopt jointly with his or her spouse a relative within the fourth (4th) degree of consanguinity or affinity.

Case :Sayson v. CA GR 892224-25, January 23, 1992 ponente j. Cruz

FACTS:

ELENO AND RAFAELA SAYSON BEGOT 5 CHILDREN: MAURICIO, ROSARIO, BASILISA, REMEDIOS AND TEODORO. TEODORO MARRIED ISABEL. UPON THE DEATH OF TEODORO AND ISABELA, THEIR PROPERTIES WERE IN THE POSSESSION OF DELIA, EDMUNDO AND DORIBEL, THEIR CHILDREN. THE PLAINTIFFS FILED FOR PARTITION OF THE INTESTATE ESTATE OF TEODORO AND ISABELA. IT WAS OPPOSED BY OF DELIA, EDMUNDO AND DORIBEL ALLEGING THEIR SUCCESSIONAL RIGHTS TO THE ESTATE AS THE LAWFUL DESCENDANTS. SUBSEQUENTLY, OF DELIA, EDMUNDO AND DORIBEL FILED FOR PARTITION OF INTESTATE ESTATE OF ELENO AND RAFAELA AS THEY ARE TITLED TO INHERIT TEODORO’S SHARE IN HIS PARENTS’ ESTATE BY RIGHT OF REPRESENTATION BECAUSE OF DELIA AND EDMUNDO ARE ADOPTED CHILDREN AND OF DORIBEL WAS LEGITIMATE DAUGHTER. THE RTC FOUND THE DEFENDANTS QUALIFIED TO INHERIT FROM E AND R BY RIGHT OF REPRESENTATION. THE CA FOUND DE AND E DISQUALIFIED FROM INHERITING FROM E AND R

ISSUE:

Whether or not Delia, Edmundo and doribel may inherit from the estate of Eleno and Rafaela by right of representation

RULING:

As to Doribel, YES, for she was a legitimate daughter of T and thus granddaughter of E and R. She has right to represent her deceased father in the distribution of intestate estate of her grandparents. She is entitled to the share her father would have directly inherited had he survived, which shall be equal to the shares of her grandparents’ other children.

As to of Delia and Edmundo, to whom the grandparents were total strangers, cannot inherit by representation. While it is true that the adopted child shall be deemed to be a legitimate child and have the same right as the latter, these rights do not include right of representation. The relationship created by the adoption is between the adopting parents and the adopted child and does not extend to the blood relative of either party.

Santos, et al. Vs. Aranzanso, et al., gr No. L-23828, February 28, 1966 ponente j. Abad santos

Facts:

A petition for adoption of Paulina, 17 years old and Aurora Santos, 8 years old, was filed by Simplicio Santos and Juliana Reyes in the CFI of Manila. It was alleged that both parents of the minors have long been unheard from and could not be found in spite of diligent efforts to locate them; that since the war said minors have been abandoned; and that for years since their infancy, said children have been continuously been in petitioners’ care and custody. The consent to the adoption has been given by the guardian ad litem appointed by the Court. After due publication and hearing, the adoption court granted the petition for the adoption.

Issue: WON a decree of adoption could be assailed collaterally in a settlement proceeding.

Held: No. Firstly, consent of the parents is not an absolute requisite if child was abandoned; consent by the guardian ad litem suffices.

Ad litem means: For the lawsuit or action

Definition of terms

(1) Child means a person below fifteen (15) years of age unless sooner emancipated by law. (Sec. 3[b], Ibid.).

(2) Authorized and accredited agency refers to the State welfare agency or a licensed adoption agency in the country of the adopting parents which provide comprehensive social services and which is duly recognized by the Department. (Sec. 3[e], Ibid.).

(3) Legally-free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code. (Sec. 3[f], Ibid.).

(4) Matching refers to the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying parent-child relationship. (Sec. 3[g], Ibid.). (1) Child means a person below fifteen (15) years of age unless sooner emancipated by law. (Sec. 3[b], Ibid.).

Article 185

Husband and wife must jointly adopt, except in the following cases:

(1) When one spouse seeks to adopt his own illegitimate; or

(2) When one spouse seeks to adopt the legitimate child of the other.

By Gladys Agaid-Lambayong

> Article 185 has been modified by RA 8552, "Domestic Adoption Act of 1998," and must be read along with article 186 to be read as follows:

(1) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(2) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, that the other spouse has signified his/her consent thereto; or

(3) if the spouses are legally separated from each other.

Accordingly, Article 185 is all too clear and categorical and there is no room for interpretation. There is only room for application. The rationale behind this is that the child to be adopted is elevated to the level of a legitimate child, with all the privileges appertaining thereto. Hence it is but natural for the spouses to adopt jointly and to ensure harmony between them.

The rule on adoption is liberally interpreted since it is the concern of the child which it tends to protect. So, Article 185 is likewise liberally interpreted and made remedial in nature.

Article 186

In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this code.

By Gladys Agaid-Lambayong

> Article 186 establishes parental authority over the child by the spouses, the adopter over the adoptee. Parental authority is a responsibility over the adoptee which includes caring for the child for civic consciousness and efficiency and the development of his/her moral, mental and physical character and well-being.

Below is a case digest illustrating the provisions of Article 185 and Article 186:

Republic vs. CA, et al.,

GR. No. 92326, Jan. 24, 1992

Petitioner: Republic of the Philippines

Respondents: Court of Appeals and Zenaida C. Bobbies

Ponente: Justice Regalado

This is a petition to review on certiorari that seeks to reverse the decision of the Court of Appeals that granted the petition of the private respondent to adopt the minor, Jason Condat.

FACTS:

On February 2, 1988, private respondent filed a petition to adopt Jason Condat, then six (6) years old and who had been living with her family since he was four (4) months old, before the Regional Trial Court. On February 20, 1990, the CA affirmed in toto the decision of the RTC granting the petition of herein private respondent to adopt the minor Jason Condat.

The Solicitor General sought the reversal thereof in the present petition for review on certiorari on the ground that the ruling violated the joint-adoption principle required by Article 185 and since it is categorical and liberally interpreted it should have been given retroactive effect.

ISSUE:

Whether or not the decision of the CA granting the private respondent to adopt solely, without joining her husband, the minor, Jason Condat, be reversed.

RULING:

NO. The Court upheld the decision of the CA. Under the Child and Youth Welfare Code, a petition for adoption may be filed by either of the spouses or by both of them. Family Code, took effect on August 3, 1988. Under the said new law, joint adoption by husband and wife is mandatory. On the retroactive application, The Court ruled that procedural statutes are ordinarily accorded a retrospective construction in the sense that they may be applied to pending actions and proceedings, as well as to future actions. However, they will not be so applied as to defeat procedural steps completed before their enactment. In the instant case, the private respondent filed the petition on February 2, 1988, when the law applicable was Presidential Decreee No. 603, the Child and Youth Welfare Code.

As to the non-inclusion of Dioscoro Bobbies as a co-petitioner as a jurisdictional defect, the Court argued that when private respondent filed her petition, she was exercising her explicit and unconditional right under said law. Upon her filing thereof, her right to file such petition alone and to have the same proceed to final adjudication, in accordance with the law in force at the time, was already vested and cannot be prejudiced or impaired by the enactment of a new law. And the court also noticed that though Dioscoro was not a co-petitioner, his affidavit of consent, which was an integral part of the petition, was the explicit expression of his joining of the private respondent in the adoption of Jason Condat.

Article 187

The following may not be adopted:

(1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person had been consistently considered and treated by the adopter as his or her own child during the minority

(2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and

(3) A person who has already been adopted unless such adoption has been previously revoked or rescinded

By: Meneses-Gapac, Xiennia

Modifications of the law

RA 8552 has introduced some changes in the law (Article 187)

Sec. 8 Who may be adopted. – The following may be adopted:

Any person below eighteen (18) years of age who has been administratively or judi

RA 8552 has introduced some changes in the law (Article 187)

Sec. 8 Who may be adopted. – The following may be adopted:

(d) to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority

(e) A child whose adoption had been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died:

Provided, That no proceedings shall be initiated within six months from the time of death of said parent(s).

cially declares available for adoption;

The legitimate son/daughter of one spouse by the other spouse;

An illegitimate son/daughter by a qualifies adopter to improve his/her status to that of legitimacy;

Article 188

The written consent of the following to the adoption shall be necessary:

1.The person to be adopted, if ten years of age or over;

2.The parents by nature of the child, the legal guardian, or the proper government instrumentality;

3.The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;

4.The illegitimate children ten years of age or over, of the adopting parent; if living with said parent and the latter’s spouse, if any; and

5.The spouse, if any, of the person adopting or to be adopted.

By: Meneses-Gapac, Xiennia

RA 8552 has introduced some changes in the law

Sec. 9 Whose consent is necessary to the adoption.

The adoptee, if ten (10) years of age or over;

The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;

RA 8552 has introduced some changes in the law

Sec. 9 Whose consent is necessary to the adoption.

adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter’s spouse, if any; and

(e) The spouse, if any, of the person adopting or to be adopted

Consent of adopted

At age ten (10) years or over, the child should have the capacity to discern or choose his/her parents.

Consent of parents; reason for requirement

If the natural parents have abandoned their children, consent by the guardian ad litem suffices.

Ad litem (For the suit; for the purposes of the suit; pending the suit)

- A guardian ad litem is a guardian appointed to prosecute or defend a suit on behalf of a party who is legally incapable of doing so, such as an infant or an insane person.

Consent of children of adopted required; reason

These children of the adopter would be prejudiced insofar as their legitimes are concerned, for the reason that the adopted child becomes the child of the adopter and is entitled to inherit.

Joint adoption of the illegitimate child

The provision contemplates blood relation not status.

When the provision does not distinguish between legitimate and illegitimate, we, too, must not.

Consent of the spouse and children necessary if a husband adopts his illegitimate children

In order to maintain harmony, there must be a showing of notice and consent.

The husband and wife shall jointly adopt

Exception:

When adopting his/her own children out of wedlock (RA 8552)

Article 3, Section 7: Husband and wife shall jointly adopt, except in the following cases:

(i) If one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however,that the other spouse has signified, his/her consent thereto

Written consent of the adopter’s children; reason

To ensure harmony among the prospective siblings

Sufficiently puts the other children on notice that they will have to share their parent’s love and care, as well as their future legitimes, with another person

Castro et al. vs Gregorio et al.
GR No 188801 15 October 2014

Facts:

Atty. Castro was allegedly married to Rosario Castro (Petitioner). Unfortunately, they separated later on due to their incompatibilities and Jose’s alleged homosexual tendencies. Their marriage bore two daughters: Rose Marie, who succumbed to death after nine days from birth due to congenital heart disease, and Joanne Benedicta Charissima Castro (Petitioner).

On August 2000, a petition for adoption of Jose Maria Jed Gregorio (Jed) and Ana Maria Regina Gregorio (Regina) was instituted by Atty. Jose Castro.

Atty. Castro alleged that Jed and Regina were his illegitimate children with Lilibeth Gregorio (Rosario’s housekeeper). After a Home Study Report conducted by the Social Welfare Officer of the TC, the petition was granted. A disbarment complaint was filed against Atty. Castro by Rosario. She alleged that Jose had been remiss in providing support to his daughter Joanne for the past 36 years; that she single-handedly raised and provided financial support to Joanne while Jose had been showering gifts to his driver and alleged lover, Larry, and even went to the extent of adopting Larry’s two children, Jed and Regina, without her and Joanne knowledge and consent.

Atty. Castro denied the allegation that he had remiss his fatherly duties to Joanne. He alleged that he always offered help but it was often declined. He also alleged that Jed and Regina were his illegitimate children that’s why he adopted them. Later on Atty. Castro died. Rosario and Joanne filed a petition for annulment of judgment seeking to annul the decision of the TC approving Jed and Regina’s adoption.

Petitioner alleges that Rosario’s consent was not obtained and the document purporting as Rosario’s affidavit of consent was fraudulent. Petitioner also alleged that Jed and Regina’s birth certificates shows disparity. One set shows that the father to is Jose, while another set of NSO certificates shows the father to be Larry. Petitioner further alleged that Jed and Regina are not actually Jose’s illegitimate children but the legitimate children of Lilibeth and Larry who were married at the time of their birth.

CA denied the petition.CA held that while no notice was given by the TC to Rosario and Joanne of the adoption, it ruled that there is “no explicit provision in the rules that spouses and legitimate child of the adopter should be personally notified of the hearing.” CA also ruled that the alleged fraudulent information contained in the different sets of birth certificates required the determination of the identities of the persons stated therein and was, therefore, beyond the scope of the action for annulment of judgment. The alleged fraud could not be classified as extrinsic fraud, which is required in an action for annulment of judgment.

Issue:

Whether or not consent of the spouse and legitimate children 10 years or over of the adopter is required

Ruling:

The grant of adoption over R should be annulled as the Trial Court did not validly acquire jurisdiction over the proceedings, and the favorable decision was obtained through extrinsic fraud. When fraud is employed by a party precisely to prevent the participation of any other interested party, as in this case, then the fraud is extrinsic, regardless of whether the fraud was committed through the use of forged documents or perjured testimony during the trial.

Jose’s actions prevented Rosario and Joanne from having a reasonable opportunity to contest the adoption. Had Rosario and Joanne been allowed to participate, the trial court would have hesitated to grant Jose’s petition since he failed to fulfill the necessary requirements under the law. There can be no other conclusion than that because of Jose’s acts, the trial court granted the decree of adoption under fraudulent circumstances.

RA 8552 requires that the adoption by the father of a child born out of wedlock obtain not only the consent of his wife but also the consent of his legitimate children. (Art. III, Sec. 7, RA 8552)As a rule, the husband and wife must file a joint petition for adoption. The law, however, provides for several exceptions to the general rule, as in a situation where a spouse seeks to adopt his or her own children born out of wedlock. In this instance, joint adoption is not necessary. But, the spouse seeking to adopt must first obtain the consent of his or her spouse.

In the absence of any decree of legal separation or annulment, Jose and Rosario remained legally married despite their de facto separation. For Jose to be eligible to adopt Jed and Regina, Rosario must first signify her consent to the adoption. Since her consent was not obtained, Jose was ineligible to adopt. The law also requires the written consent of the adopter’s children if they are 10 years old or older (ART. III, Sec. 9, RA 8552).

For the adoption to be valid, petitioners’ consent was required by Republic Act No. 8552. Personal service of summons should have been effected on the spouse and all legitimate children to ensure that their substantive rights are protected. It is not enough to rely on constructive notice as in this case. Surreptitious use of procedural technicalities cannot be privileged over substantive statutory rights. Since the trial court failed to personally serve notice on Rosario and Joanne of the proceedings, it never validly acquired jurisdiction.

Article 191

If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumental acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD 603)

By: Pomintel-Acuno, Florabel

The law has been modified by RA 8552 which provides:

Section 19. Grounds for Rescission of Adoption. – Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Right of succession of adopted where decree was rescinded.

Section 20(3) of RA 8552 provides that succession rights shall revert to its former status prior to adoption, but only as of the date of judgment of judicial rescission

The relationship of the adopted child and his/her biological parents is restored and consequently, he/she shall be entitled to all the rights and obligations provided by law in favor of the child.

The law places limit on the resumption of successional rights by providing that the same shall only resume as of the date of the judgment of rescission

Grounds for disinheritance of descendants

Article 919 of the Civil Code provides that the following shall be sufficient causes for disinheritance of children and descendants, legitimate as well as illegitimate:

When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;

When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;

Maltreatment of the testator by word or deed, by the child or descendant;

When a child or descendant leads a dishonorable or disgraceful life;

Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

Grounds for judicial rescission of adoption

In general, it can be said that since the purpose of the adoption is to uplift the condition of the adopted, if the adopters cannot or refuse to comply with their obligations.

The law allows the filing of a petition for judicial recission of adoption by a person authorized by the court or by proper government instrumentality acting on behalf of the minor or by the minor himself if he is atlest 18 years of age.

Article 192

The adopters may petition the court for the judicial rescission of the adoption in any of the following cases:

(1) If the adopted has committed any act constituting ground for disinheriting a descendant; or

(2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. (41a, PD 603)

By: Pomintel-Acuno, Florabel

Rescission of adoption by adopters

The law has been amended in that only the adopted child can now file a petition for rescission of the decree of adoption. Section 19 (2), RA 8552 says that doption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both.

Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his surname prior to the adoption.

The court shall accordingly order the amendment of the records in the proper registries. (42a, PD 603)

By: Pomintel-Acuno, Florabel

The rescission of adoption may only be effected judicially upon petition of:

Any person authorized by the court of the proper governmental instrumentality on the same grounds prescribed by the Family Code, Title IX, for loss or suspension of parental authority.

The person adopted, if atleast 18 years of age on the same grounds prescribed for disinheriting as ascendant, Article 920 of the Civil Code

“Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate:

When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;

When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false;

When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;

When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

The loss of parental authority for causes specified in this Code;

The refusal to support the children or descendants without justifiable cause;

An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a)”

The adopters on the grounds expressed in Article 192 of the Family Code (refer to the discussion of Article 191, Grounds for disinheritance of descendants)

Judicial rescission has the effect of extinguishing forthwith the adoptive relationship, hence:

The rights and obligations between the adopter and the adopted arising from the adoptive relationship cease;

The adopted loses the right to the use of the adopter’s surname and shall resume the use of his or her surname prior to the adoption.

Parental authority, in case the adopted is still a minor, shall re-vest in the parents by nature or, if disqualified or incapacitated, in a guardian appointed by the court in the same proceeding for rescission, Article 193 of the Family Code.

RA 8552 has introduced some modifications to the law. It provides:

“Section 20. Effects of Rescission. – If the petition is granted, the parental authority of the adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished.

The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate.

Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.

All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven.”

CASE DIGEST

Case : ISABEL DE LA PUERTA, petitioner,

vs.

THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, respondents

Citation : G.R. No. 77867

Date : February 6, 1990

Ponente : Justice Cruz

FACTS:

The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was already senile at the time of the execution of the will and did not fully comprehend its meaning. Moreover, some of the properties listed in the inventory of her estate belonged to them exclusively.

On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to adopt Carmelita de la Puerta. After hearing, the petition was granted. However, the decision was appealed by Isabel to the Court of Appeals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case.

On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the payment to her of a monthly allowance as the acknowledged natural child of Vicente de la Puerta. At the hearing on her motion, Carmelita presented evidence to prove her claimed status to which Isabel was allowed to submit counter-evidence.

On November 12,1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her support. The court added that "the evidence presented by the petitioner against it was too weak to discredit the same.

Petition was filed by Isabel, claiming that Carmelita was not the natural child of Vicente de la Puerta, who was married to Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanito Austrial and Gloria Jordan. She also presented Genoveva de la Puerta, who identified herself as Vicente de la Puerta's wife but said they separated two years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la Puerta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that the relationship between her husband and Gloria was well known in the community.

ISSUE:

WON private respondent Carmelita de la Puerta, may claim support and successional rights to the estate of Dominga Revuelta.

HELD:

The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not predecease his mother; and the second is that Carmelita is a spurious child.

According to Article 970 of the Civil Code, representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

In testamentary succession, the right of representation can take place only in the following cases: first, when the person represented dies before the testator; second, when the person represented is incapable of succeeding the testator; and third, when the person represented is disinherited by the testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the children or descendants of the person represented to succeed by right of representation.

The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should therefore be filed in the proceedings for the settlement of her own father'sestate and cannot be considered in the probate of Dominga Revuelta's will.

Article 194

Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vacation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

By: Rosales, Gayle Marion R.

ANNOTATION:

Appropriately, the right to demand arises from imperative necessity, without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded.

Unborn child entitled to support.

Reason:

A conceived child, although as yet unborn, is given by a law a provisional personality of its own for purposes favorable to it and correspondingly, the right to support from its progenitors, even of the child is only “en ventre de sa mere” just as a conceived child.

Ascendants and descendants required to support one another.

Under the law, legitimate ascendants and descendants are required to support each other. In this regard, the basis of the right to support is the legitimacy of relationship so that in case the status of a child is denied and placed in issue, no effect can be given to the child’s claim for support until an authoritative declaration has been made so as to the existence of the cause.

Right of illegitimate to support.

Under the law, the illegitimate children are entitled to be supported.

Reason: To surmount the disadvantages facing them through the misdeeds of their parents, since the transgression of social conventions committed by the parents should not be visited upon such children.

Brothers and sisters not legitimately related, whether of the full or half blood, are entitled to support to the full extent under Art 194 of the FC. This is not similar to the CC, as they were only entitled to natural support of the necessities in life.

But suppose a brother/sister is of age but is very lazy, s/he is not entitled for support because the law says; “except only when the need for support is due to a cause imputable to the claimant’s fault or negligence.

Allowance to widow, etc. who are included.

Art 133 of the FC provides that, from the common mass of property, support shall be given to the surviving spouse and to the children during the liquidation of the inventories of the property. It limits the allowance to the widow and children and it does not extend to the deceased’s grandchildren regardless of their minority and incapacity.

Married man cannot be required to acknowledge a child of a woman he raped.

G.R. No. 128157 September 29, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANUEL MANAHAN, alias "Maning," defendant-appellant.

BELLOSILLO, J.:

FACTS:

Teresita Tibigar, 16 y/o was a stay-in waitress at Espiritu Canteen. Teresita was raped by Manuel Manahan, brother-in-law of the owner, who was temporarily residing in the same canteen. Within the same month the raped occurred, Teresita returned to Pangasinan and thereafter became pregnant. When her parents discovered it and learned of her story, they brought her to the hospital where she was examined and proceeded to the police to give her statement.

With the assistance of her mother, Teresita filed a criminal complaint accusing Manuel of rape. Teresita gave birth to Melanie Tibigar. Court found Manuel guilty and sentenced him to death. He was also ordered to indemnify the victim 50k as moral damages, pay the costs, and acknowledge and support the offspring of his indiscretion Case went to SC on automatic review.

ISSUE:

Whether or not the Court committed error in acknowledging Melanie as a child of Manuel and ordering him to support the offspring of his indiscretion.

RULING:

WHEREFORE, the Decision of the Regional Trial Court of Dagupan City, Branch 40, dated 28 November 1996, convicting accused MANUEL MANAHAN alias Maning of the crime of rape is AFFIRMED subject however to the modification that the death sentence imposed on the accused is reduced to reclusion perpetua. The portion of the decision of the trial court ordering the accused, a married man, to acknowledge the child Melanie Tibigar is DELETED being contrary to law and jurisprudence.

• “Article 345 of The Revised Penal Code provides that persons guilty of rape shall also be sentenced to “acknowledge the offspring, unless the law should prevent him from doing so,” and “in every case to support the offspring.” In the case before us, compulsory acknowledgment of the child Melanie Tibigar is not proper there being a legal impediment in doing so as it appears that the accused is a married man.”

• “As pronounced by this Court in People v. Guerrero,”the rule is that if the rapist is a married man, he cannot be compelled to recognize the offspring of the crime, should there be any, as his child, whether legitimate or illegitimate.””

A child must establish filiation before support maybe granted.

To be entitled for support, filiation of child must be established first, if the same is not admitted or acknowledged.

If filiation is beyond question, support as follows as matter of obligation.

In short, illegitimate children are entitled to support and successional rights but their filiation must be duly proved.

An action for compulsory recognition may be filed ahead of an action for support, “where the issue of compulsory recognition may be integrated and resolved,” is an equally valid alternative.

Article 195

Subject to the provisions of the succeeding articles, the following are obliged to support each other to whole extent set forth in the preceding article:

1. The spouses;

2. Legitimate ascendants and descendants;

3. Parents and their legitimate children and the legitimate and illegitimate children of the latter;

4. 4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and

5. 5. Legitimate brothers and sisters, whether of full or half blood.

By: Rosales, Gayle Marion R.

Article 196

Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence. (291a)

By: Valbuena, Dona M.

An illustration of Article 196 to help us understand the concept

Table 1. Support from Brothers & Sister

What: Support each other (right and obligation to support arises from the law Art 68 of FC to love and support each other)

Relationship: Brothers & sisters not legitimately related or half-blood relation (Enumerated as No. 5 under Article 195 or the proceeding article)

Full extent of support under Article 194 of FC:

1. Sustenance

2. Dwelling

3. Clothing

4. Medical Attention

5. Education

6. Transportation

Prohibition:

“it shall not be paid except from the date of judicial or extrajudicial demand” (G.R. 206647 8/14/2014) – from the phrase of Article 196 “except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence.

Article 197

For the support of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n)

By: Valbuena, Dona M.

An illustration of Article 197 to help us understand the concept

Table 2. Support to Legitimate ascendants, descendants, brothers & sisters

whether legitimate or illegitimate

Support

To whom and Relationship: Ascendants,Descendants whether legitimate or illegitimate

Brothers and sisters whether legitimate or illegitimate

Who will support? Obligor or person obliged to give support

Sources of support: Only from the separate property of obligor; or from the share of obligor from the absolute community or conjugal partnership upon the liquidation of absolute community or conjugal partnership

Article 198

During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. (292a)

By: Valbuena, Dona M.

Article 202

Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a)

By: Laurente, Ivy M

Article 203

The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand.

Support pendente lite may be claimed in accordance with the Rules of Court.

Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a)

By: Laurente, Ivy M

Article 204

The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (299a)

By: Laurente, Ivy M

DISCUSSION:

A judgment for support does of become final at all. The reason for that is that, it can be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the giver.

A judgment for support is immediately executory because it is needed by the person to be supported, unless the court states. Also, demand is necessary. Under Article 203, it requires that before the support is paid, there must be judicial or extrajudicial demand. Why? It is because the right to demand support arises from imperative necessity, without which, it cannot be demanded , and the law presumes that such necessity does not exist unless support is demanded.

ILLUSTRATION

If a person is obliged to give support by virtue of a decision of the court and such decision mandates that he should give the recipient P1000.00 per month and later on gets demoted on his work and receives lesser compensation, he ask for reduction because his resources or means of the said person has diminished. Appropriately, however, the reduction of means as a defense does not apply to support of spouses for it refers more to a case where the recipient is a stranger to the family of the obligor.

There is two ways to render support and to fulfill his obligation:

1. Paying the amount fixed or

2. Receiving and maintaining in the family dwelling the person who has a right to receive support

This 2nd option cannot be availed of when there is a moral or legal obstacle. For example, a husband in supporting his wife, cannot choose the 2nd option if he had been maltreating her.

DIGESTED CASE FROM THE BOOK:

DINAH B. TONOG v. COURT OF APPEALS

G.R. No. 122906

February 7, 2002

Facts:

Dinah gave birth to Gardin Faith Belarde Tonog, her illegitimate child with Edgar V. Daguimol. The two lived together for a time with Edgar's parents and sister. Year after Dinahfound a work as a registered nurse in the US and she eventually grabbed the opportunity. Gardin was left in the care of her father and grandparents.

Prior to the happenings, Edar filed a petition for guardianship and the trial court granted the petition. Later on, Dinah filed a petition for relief and the court set aside the original judgment and let Dinah filed her petition. The court granted Dinah's petition. Edgar filed a petition for certiorari before the CA who modified their previous decision and granted Edgar custody over Gardin. Dinah claimed that she is entitled to the custody of the minor as a matter of law. As the mother of Gardin Faith, the law confers parental authority upon her as the mother of the illegitimate minor.

Issue:

Whether or not Dinah is entitled to the custody of Gardin.

Held:

NO. Although, Insofar as illegitimate children are concerned, Article 176 of the Family Code provides that illegitimate children shall be under the parental authority of their mother. Likewise, Article 213 of the Family Code provides that “[n]o child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” It will be observed that in both provisions, a strong bias is created in favor of the mother. This is especially evident in Article 213 where it may be said that the law presumes that the mother is the best custodian. As expl ained by the Code Commission:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for “compelling reasons” for the good of the child.

For these reasons, even a mother may be deprived of the custody of her child who is below seven years of age for “compelling reasons.” Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person.

Considering that the welfare of the said minor as the controlling factor, the appellate court did not err in allowing her father to retain in the meantime parental custody over her. Meanwhile, the child should not be wrenched from her familiar surroundings, and thrust into a strange environment away from the people and places to which she had apparently formed an attachment.

In custody disputes, it is axiomatic that the paramount criterion is the welfare and well-being of the child. In arriving at its decision as to whom custody of the minor should be given, the court took into account the respective resources and social and moral situations of the contending parents. Therefore the custody was given to the father.

Table 3. Pendency of the Legal Separation or Annulment proceedings

support

To whom and Relationship: Children and spouses

Who will support? Spouses

Sources of support: Properties from absolute community or conjugal partnership

Table 4. After the final judgment granting the petition

To whom and Relationship: children

Who will support? Obligation of mutual support between husband and wife ceases

Sources of support: Depends on the stipulation of judgment from the court; primary consideration is the welfare of the children

Table 5. Final judgment for Legal Separation Cases

To give support:

Children and innocent spouse

Who will support?Guilty spouse

Sources of support:

Depends on the stipulation of judgment from the court; primary consideration is the welfare of the children. The guilty spouse by operation of the law must give support to his/her children and innocent spouse

A case to help us illustrate how the Court values the welfare of a child, considering the rulings based on technicalities of RTC and CA.

RICHELLE P. ABELLA, FOR AND IN BEHALF OF HER MINOR DAUGHTER, MARL JHORYLLE ABELLA, PETITIONER, V. POLICARPIO CABAÑERO, RESPONDENT.

[ G.R. No. 206647, August 09, 2017 ]

Ponente- Justice Marvic Mario Victor F. Leonen

Facts of the case:

Abella filed a Complaint for Support at RTC San Jose, Antique on April 22, 2005. She alleged that while she was still a minor in the years 2000 to 2002, she was repeatedly sexually abused by respondent Cabañero inside his rest house at Barangay Masayo, Tobias Fornier, Antique. As a result, she allegedly gave birth to a child MARL JHORYLLE ABELLA on August 21, 2002.

Richelle prayed for the child's monthly allowance in the amount of P3,000.00.

In his Answer, Cabañero denied sexually abusing Richelle, or otherwise having any sexual relations with her. Thus, he asserted that he could not have been the father of Richelle’s child.[13]

After two (2) re-settings, pre-trial was held on February 21, 2007. Only Richelle's counsel appeared. Richelle's motion to present her evidence ex parte was granted.

In her testimony, Richelle noted that Cabañero was related to her mother and that she treated him as her uncle. She narrated how she was sexually abused by Cabañero on July 25, 2000, September 10, 2000, and February 8, 2002 and how Cabañero threatened her to keep her silent. She added that during this period, Cabañero sent her three (3) letters. She testified that she bore her and Cabañero's child, whom she named Marl Jhorylle Abella, on August 21, 2002. She insisted on her certainty that Cabañero was the father of the child as she supposedly had no sexual relations with any other man.

In its March 19, 2007 Decision, the Regional Trial Court dismissed Richelle's Complaint without prejudice, on account of her failure to implead her minor child, Jhorylle, as plaintiff.

Richelle filed a petition for certiorari and mandamus before the Court of Appeals.

In its assailed August 25, 2011 Decision, the Court of Appeals sustained the dismissal of the Complaint.

However, the Court of Appeals disagreed with the Regional Trial Court's basis for dismissing the Complaint. It emphasized that non-joinder of indispensable parties is not a ground for the dismissal of an action and added that it would have sufficed for the Regional Trial Court to have "ordered the amendment of the caption of the [C]omplaint to implead the minor child." The Court of Appeals still ruled that the dismissal of the Complaint was proper as the filiation and paternity of the child had not been previously established. As the child's birth certificate did not indicate that Cabañero was the father and as Cabañero had not done anything to voluntarily recognize the child as his own, the Court of Appeals asserted that Richelle "should have first instituted filiation proceedings to adjudicate the minor child's paternity."

Issue:

Whether or not the Court of Appeals erred in ruling that filiation proceedings should have first been separately instituted to ascertain the minor child's paternity and that without these proceedings having first been resolved in favor of the child's paternity claim, petitioner Richelle P. Abella's action for support could not prosper.

Held

The Court reverses the Court of Appeals Decision.

The grant of support was contingent on ascertaining paternal relations between respondent and petitioner's daughter, Jhorylle, however, it was unnecessary for petitioner's action for support to have been dismissed and terminated by the Court of Appeals. The Court finds that instead of dismissing the case, the Court of Appeals should have remanded the case to the Regional Trial Court, where the petitioner and her daughter should have been enabled to present evidence to establish their cause of action—inclusive of their underlying claim of paternal relations—against respondent.

Article 194 of the Family Code delineates the extent of support among family members, while Article 195 identifies family members who "are obliged to support each other":

Article 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

The Petition for Review on Certiorari was granted, the CA Resolution was reversed and set aside and the case was remanded to RTC San Jose, Antique for it to settle purported paternal relation of minor Marl Jhorylle Abella and in the event of a favorable determination on this, to later rule on the matter of support.

ARTICLE 205

The right to receive support under this title as well as any money or property obtained as such support shall not be levied upon on attachment or execution.

By: Sarmiento, Sheryl

Attachment

Ø The legal process of seizing property to ensure satisfaction of a judgment.

Writ of Execution

Ø a judicial order that a judgment be enforced.

ARTICLE 206

When without the knowledge of the person obliged to support, it is given by a stranger, the latter has the right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed.

By: Sarmiento, Sheryl

ILLUSTRATION

X is obliged to support Y. Without X’s knowledge or consent, Z paid the amount of support to Y. Z has the right to reimburse the amount paid from X unless he has no intention to ask for the reimbursement.

ARTICLE 207

When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed.

By: Sarmiento, Sheryl

Quasi-Contract

Ø a juridical relation which arises from certain lawful, voluntary and unilateral acts to the end that no one shall be unjustly enriched or benefited at the expense of another.

In order that the stranger may recover what he gave to another by way of support, the following must conquer;

1) the person obliged to give support failed to give it;
2) support was needed;
3) support was given without the knowledge and consent of the person who is required to give it; and
4) support is given with the intention of being reimbursed.

G.R. No. 102692 September 23, 1996
JOHNSON & JOHNSON (PHILS.), INC., petitioner,
vs.
COURT OF APPEALS and ALEJO M. VINLUAN, respondents.

PANGANIBAN, J

FACTS

• The petitioner filed a motion against the spouses Delilah A. Vinluan, owner of Vinluan Enterprises, and her husband Capt. Alejo M. Vinluan for collection of a sum of money with damages.

• Several demands for payment were made by the plaintiff-respondent granting several extensions to the defendants but only partial payments were given.

• When no further payments were made to settle the obligation despite repeated demands, the plaintiff-respondent corporation was constrained to file a complaint.

• The next day, her husband (herein private respondent) filed a third-party claim seeking the lifting of the levy on the conjugal properties.

• The trial court issued the first assailed Order fixing the value of the levied personal properties at P300,000.00, and denying the third-party claim and the motion to quash the levy on execution.

• Petitioner's motion for reconsideration of the first order (on the ground that it directly contravened the decision itself which had already become final and executory) was denied.

ISSUE

Whether or not the defendant husband, exonerated from the obligation contracted by his wife in the pursuit of her business also absolves the conjugal partnership from liability.

HELD

ARTICLE 211

The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. (172a P.D No. 603)

By: Aguilba, Ray Dean

JOINT PARENTAL AUTHORITY OF PARENTS OVER THIR CHILDREN

The parents are equally bound to ensure the wholesome upbringing of the children. This precept is in accordance with the natural order of life. A father and a mother are not expected to have a compartmentalized concern over their children or in their parental love be split up to serve different purposes.

PREFERENTIAL AUTHORITY OF THE FATHER

Both the father and the mother should exercise joint parental authority over their common children. However, in case of conflict between the parents, the father’s decision prevails as long as it is for the best interest of their children.

This preferential paternal right however does not mean that the mother’s decision is not for their children’s best interest. If both of the parent’s decision has merit and to further avoid such of becoming void to the detriment of their children, the decision of the father as the head of the family is given preference.

The law is designed to provide a mechanism by which the conflicts within the family will be resolved within the family. If the decision of the father is in question where the mother and their children wanted to change it, the court has the authority to alter such decision.

DUTIES OF CHILDREN TOWARDS THEIR PARENTS

This article provides that the children shall always observe respect and reverence toward their parents and are obliged to obey them as long as the children are under parental authority. Article 357 of the 1950 Civil Code still effectively provides that every child shall:

1. Obey and honor their parents or guardians;

2. Respect their grandparents, old relatives and other persons holding substitute parental authority;

3. Exert their utmost for their education and training;

4. Cooperate with the family in all matters that make for the good of the same.

5. Other responsibilities of the children are enumerated under the Child and Youth Welfare Code, P.D. No.603 (Article 4) as amended.

CASE DIGEST

TERESITA SAGALA-ESLAO, petitioner, vs.

COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents.

G.R. No. 116773. January 16, 1997

TORRES, JR., J.:

FACTS:

Respondent, Maria Paz entrusted custody of her youngest child Angelica to her grieving mother-in-law when her husband Reynaldo Eslao died. She then returned to her mother’s house with Leslie. Years later, Maria Paz got married to a Japanese-American and live with him in the United States. After this she returned to the Philippines to be reunited with her children and bring them to the US. She then informed Teresita about her desire to take custody of Angelica her new husband’s willingness to adopt her children. Teresita refused, and accused Maria of having abandoned Angelica when she was 10 days old. Maria instituted an action against Teresita over the return of the custody of Angelica to her. After the trial on the merits, the trial court granted the petition. CA affirmed in the full decision of the trial court.

ISSUE:

Whether or not Teresita Sagala-Eslao has the right over the custody of Angelica.

HELD:

No. The right of parents to the custody of their minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship.

Thus, when Maria entrusted the custody of Angelica to Teresita, what she gave to her mother-in-law was merely temporary custody and it did not constitute abandonment or renunciation of parental authority. The law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution.

ARTICLE 212

In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (17a, PD. No.603)

By: Aguilba, Ray Dean

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

ARTICLE 213

In the case of separation of parents, Parental authority shall be exercised by the parents designated by the Court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n)

By: Aguilba, Ray Dean

No Child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

IN CASE OF SEPARATION OF THE PARENTS

Parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. x x x No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise” (Article 210).

CHILD CUSTODY OF THE FATHER AND MOTHER AND VISITATION RIGHTS

Custody is an aspect of parental authority. The person who exercises parental authority over the child has custody over the said child. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. There are different rules for the custody of legitimate and illegitimate children.

CUSTODY OVER ILLEGITIMATE CHILDREN

Children are those conceived and born outside a valid marriage. The rules are relatively much simpler when it comes to custody and parental authority over illegitimate children — custody is with the mother. This rule applies whether or not the child is a minor. The father has visitation rights.

CUSTODY OVER LEGITIMATE CHILDREN

In general, parental authority (including custody) over legitimate children is shared by the father and mother. The Family Code provides that the father and the mother shall jointly exercise parental authority over the persons of their common children.

In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. In other words, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

CUSTODY OVER MINOR CHILDREN

As noted above, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents.

The law, however, favors the mother if she is a fit and proper person to have custody of her children so that they may not only receive her attention, care, supervision but also have the advantage and benefit of a mother’s love and devotion for which there is no substitute. Generally, the love, solicitude and devotion of a mother cannot be replaced by another and are worth more to a child of tender years than all other things combined.

DISAGREEMENT, DEATH, ABSENCE OF PARENTS

>In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

>In case of absence or death of either parent, the present or surviving parent present shall continue exercising parental authority.

>In case of death, absence or unsuitability of both parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

SUSPENSION OF PARENTAL AUTHORITY

Parental authority is automatically suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender.

On the other hand, parental authority may be suspended by the court, in an appropriate case where the parent or person who has parental authority:

1. treats the child with excessive harshness or cruelty.

2. Gives the child corrupting orders, counsel for example.

3. Compels the child to beg.

4. Subjects the child or allows him to be subjected to acts of lasciviousness.

These grounds are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority.

The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated.

TERMINATION OF PARENTAL AUTHORITY

Parental authority of either or both parents may be terminated or suspended by order of the court. The grounds for permanently terminating parental authority are:

1. Death of the parents.

2. Death of the child.

3. Emancipation of the child.

4. When a person exercising parental authority has subjected the child or allowed him/her to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority.

Custody and parental authority may also be terminated, subject to revival by the court in a proper case, in any of the following instances:

1. upon adoption of the child.

2. upon appointment of a general guardian.

3. Upon judicial declaration of abandonment of the child in a case filed for the purpose.

4. Upon final judgment of a competent court divesting the party concerned of parental authority.

5. upon judicial declaration of absence or incapacity of the person exercising parental authority.

VISITATION RIGHTS OF THE FATHER

Visitation right, in family law, is the right granted by a court to a parent or other relative who is deprived custody of a child to visit the child on a regular basis. The details of visitation rights are determined by the court. In certain instances, as in the case of violence against women and their children, the father is deprived of visitation rights.

CASE DIGEST

JOYCELYN PABLO-GUALBERTO, Petitioner, v. CRISANTO RAFAELITO GUALBERTO V, Respondent.

GR No. 154994, June 28, 2005

PANGANIBAN, J.:

This is a petition to review and reverse Court of Appeals Aug. 30, 2002 decision.

FACTS:

On March 12, 2002, Crisanto filed a petition for declaration of nullity of his marriage to Joycelyn, with prayer for custody of their four year old son. Joycelyn took their child with her to San Jose, Mindoro. At that time, the child was enrolled in Parañaque City. Joycelyn and her child are presently staying with her step father residence in Mindoro. Crisanto hired a Security to conduct surveillance on Joycelyn. And according to findings, Joycelyn was having a lesbian relationship with one Noreen in Cebu City. And she does not taking care of the child as she is very often goes out of the house. The CA believes that Joycelyn had no reason to take the child with her. Therefore, the court awards custody of the child to his father, Crisanto Rafaelito Gualberto. Joycelyn filed a petition for the custody of her minor child.

ISSUE:

Whether or not Joycelyn was right in claiming that she should have the custody of their minor child?

HELD:

It was held that, Joycelyn was right in claiming that she should have the custody of their minor child. According to Article 213 Paragraph 2, “No child under seven years of age shall be separated from the mother unless the court finds compelling reason to order otherwise”.

In this case, the custody was awarded to Joycelyn because their child was below seven years of age and being a lesbian was not a compelling reason to separate her from her child. There was no evidence that the child was exposed to Joycelyn’s alleged lesbian relationship that suffer his moral and psychological development.

Article 214

By: Austria,Honeylee B.

Case:

Santos v. CA

Facts:

Leouel Santos Jr. was born out of the spouses Leouel Santos Sr. and Julia Bedia-Santos. Since birth he is under the care of his grandparents. His mother left for USA as a nurse and the father alleged in a petition that he did not know her whereabouts. RTC awarded the custody to the maternal grandparents of the child and contended that they are in a better position to take care of the child.

Issue:

Who should be awarded the custody of the child?

Held:

The custody should be awarded to the father. In the absence of death of one of the parent, the joint parental authority shall be vested alone to te surviving parent. Only in case of the parent's death. Absence or in suitability may substitute the parental authority to the grandparents.

Article 215

No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. (315a)

By: Austria,Honeylee B.

Chapter 2. Substitute and Special Parental Authority

Article 216

In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a)

By: Austria,Honeylee B.

ARTICLE 217

BY:Cordero, Loida F. #4

Article 217

In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency.

A foundling is an abandoned child, whose parents are unknown. A child left at the door of a private home or charitable institution by its mother in order to hide her shame because of extreme poverty so that the child may be reared as an act of charity.

An abandoned child is one who has no parental care or guardianship or whose parents or guardians have deserted him for at least six months.

Christina Marie Dempsey, a minor and represented by her mother, Janalita Rapada, and the People of the Philippines vs. Regional Trial Court, Branch LXXV, Third Judicial Region, Olongapo City, and Joel Dempsey

G. R. Nos. 77737-38 August 15,1988

Facts:

Janalita Rapada cohabited with Joel Dempsey without the benefit of marriage and Christina Marie was the child. Janalita Rapada receives monthly in the sum of $150 for support of the child.

Janalita Rapada seeks for the accused to declare Christina Marie as his dependent and after his American citizenship.

Dempsey freely and voluntarily and spontaneously entered a plea of guilty to the offenses charged against him which was abandonment and failure to provide adequate support for the child though he had the means to do so. Municipal Trial Court found him to be guilty. He appealed for the penalty of imprisonment be changed into a fine. RTC reversed the earlier decision.

Issue: (1) Whether or not Christina is entitled to the rights arising from the parental responsibility of her father, she being an illegitimate child.

Held: Yes. Illegitimate children have the rights of the same nature as legitimate and adopted children. This is enunciated in Art. 3 of PD 603 which provides that all children shall ne entitled to the rights set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors.

Issue: (2) Whether or not as part of the civil liability, the accused is required to recognize Christina as his natural child.

Held: No. The recognition of a child by her father is provided for in the New Civil Code and now in the Family Code. In this criminal prosecution, where the accused pleaded guilty to criminal charges and the issue of recognition was not specifically and fully heard and tried, the trial court committed an error when it ordered recognition of a natural child as part of the civil liability in the criminal case.

Article 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside the premises of the school, entity or institution.

Article 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable.

The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances.

All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts.

Philippine School of Business Administration, Juan D. Lim, Benjamin P. Paulino, Antonio M. Magtalas, Col. Pedro Sacro and Lt. M. Soriano

vs.

Court of Appeals, Hon. Regina Ordonez- Benitez, in her capacity as Presiding Judge of Branch 47, Regional Trial Court, Manila, Segunda R. Bautista and Arsenia D. Bautista

G.R.No. 84698 February 4,1992

Facts:

Carlitos Bautista was a third year student at the Philippine School of Business Administration. Assailants, who were not members of the schools academic community, while in the premises of PSBA, stabbed Bautista to death. This incident prompted his parents to file a suit against PSBA and its corporate officers for damages due to their alleged negligence, recklessness and lack of security precautions.

The defendants (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued under Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the subject is to the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule. The case was forwarded to the Supreme Court.

Issue: Whether or not PSBA is liable for the death of the student who was stabbed by a stranger inside the campus. If so, what is the basis of its liability.

Held: The basis for liability was for damages.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between PSBA and Bautista had been breached thru the former’s negligence in providing proper security measures. This would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista. A contractual relation is a condition sine qua non to the school’s liability. The negligence of the school cannot exist independently of the contract, unless the negligence occurs under the circumstances set out in Article 21 of the Civil Code. The respondent court anchored its decision on the law of quasi-delicts.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule inloco parentis. Article 2180 provides that the damage should have been caused or inflicted by pupils or students of the educational institution sought to be held liable for the acts while in its custody. However, this was not the situation because the assailants of Bautista were not students of PSBA, for whose acts the school could be made liable.

When an academic institution accepts students for enrollment, a contract is binding between them, resulting in bilateral obligations which both parties is bound to comply. For its part, the school undertakes to provide the student with an education that would presumably suffice to equip him with the necessary tools and skills to pursue higher education or a profession. This includes ensuring the safety of the students while in the school premises. On the other hand, the student covenants to abide by the school’s academic requirements and observe its rules and regulations.

The petition was denied. Costs against the petitioners.

Article 222

The courts may appoint a guardian of the child’s property, or a guardian ad litem when the best interests of the child so require. (317)

By: Rosales-Ademe, Maia Caireen

The best interest of the child is always of paramount importance. Even if the parents are not dead, absent or are not suitable as guardians, still, if the best interest of the child requires the appointment of a guardian ad litem or over the properties, then, the court, as guardian of the welfare of the child, would appoint a substitute representative.

Article 223

The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a)

By: Rosales-Ademe, Maia Caireen

Article 224

The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children’s homes duly accredited by the proper government agency.

The parent exercising parental authority shall not interefere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (319a)

By: Rosales-Ademe, Maia Caireen

As an incident to the duty of the parents to uphold the best interest of the child, the parents can impose certain forms of discipline upon him but the same must be reasonable. The parents or any person exercising parental authority may even go to court and apply for an order providing for disciplinary measures over the child. But if the court finds the parents or the one who has custody to be at fault, the court may suspend or deprive them of their parental authority

Chapter 4. Effect of Parental Authority Upon the Property of the Children

Article 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a)

By:Guiang, Aprilyn

The father and mother have joint legal guardianship over the properties of their unemancipated common children. Appointed by the court is not necessary, however, if there is any disagreement, the father's decision shall prevail unless there is a judicial order to the contrary.

Bonds requirement of parents or guardian to post a bond as required for court approval

➢ (Parents of minor) 10% of the value of properties as their annual income if the value of the property exceeds P50,000

➢ (Parents of minor) No need to post a bond if value of the property is exactly or even less than P50,000

➢ (Guardian other than the parents) If the court appoints a guardian over the properties of the minor other than the parents, there is a need to post a bond regardless of the value of the properties of the said child.

The purpose of the bond is to secure the performance of the obligations of the guardians.

Instances when the law does not give the power of administration to the parents over the properties of a minor

➢ When the parent is disinherited by an ascendant, such parent cannot administer the legitime which is inherited by the child by right of representation (Art. 923, New Civil Code)

➢ When the parent is incapacitated by unworthiness to succeed an ascendant, he is deprived of the powers of administration over the legitime transmitted to the child (Art. 1035. New Civil Code)

*Unemancipated means not free, such as a minor who is not yet free from the care and custody of parental control due to being under the age of majority, unmarried, not in military service, and not declared emancipated by court order. The age of majority varies by state, but is typically 18.

Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter’s support and education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the child’s property shall be limited primarily to the child’s support and secondarily to the collective daily needs of the family. (321a, 323a)

By:Guiang, Aprilyn

The right to use the properties and fruits granted to parents over the properties of their children has been removed by the Family Code.

The child’s properties shall be devoted exclusively to the support and education of the child. If at all the parents can use the fruits, the right is secondary and it must collectively for the daily needs of the family. They cannot use the income and fruits of their children’s properties for their.

Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole or in part shall not be charged to the child’s legitime. (322a)

By:Guiang, Aprilyn

When the child is the one managing the properties of his parents, law allows him to have a reasonable compensation by way of monthly allowance, but the same shall not be charged against his legitime. The fact that he has been given an allowance, the obligation to support would still exist since he is still under parental authority.

Case:

LUZ PINEDA, MARILOU MONTENEGRO, VIRGINIA ALARCON, DINA LORENA AYO, CELIA CALUMBAG and LUCIA LONTOK, Petitioners, vs. HON. COURT OF APPEALS and THE INSULAR LIFE ASSURANCE COMPANY, LIMITED, Respondents.

G.R. No. 105562 September 27, 1993

Facts:

Prime Marine Services, Inc. (PMSI, for brevity) procured Group PoIicy from respondent-appellant Insular Life Assurance Co., Ltd. to provide life insurance coverage to its sea-based employees enrolled under the plan. During the effectivity of the policy, six covered employees of the PMSI perished at sea when their vessel sunk somewhere in Morocco.

Complainants-appellees sought to claim death benefits due them and they approached Capt. Roberto Nuval. The latter evinced willingness to assist complainants-appellees to recover OWWA benefits and other benefits arising from the deaths of their husbands/sons. They were thus made to execute, with the exception of the spouses Alarcon, special powers of attorney authorizing Capt. Nuval to, among others, "follow up, ask, demand, collect and receive" for their benefit indemnities of sums of money due them relative to the sinking of M/V Nemos. By virtue of these written powers of attorney, complainants-appellees were able to receive their respective death benefits. Unknown to them, PMSI, filed with respondent-appellant formal claims for and in behalf of the beneficiaries, through its President, Capt. Nuval. Respondent-appellant drew against its account six (6) checks, four for P200,00.00 each, one for P50,000.00 and another for P40,00.00, payable to the order of complainants-appellees. These checks were released to Capt. Nuval, upon receipt of these checks, endorsed and deposited them in his account.

Complainants-appellees learned that they were entitled to life insurance benefits under a group policy they sought to recover these benefits but denied their claim on the ground that the liability was already extinguished upon delivery to and receipt by PMSI.

Issue:

Whether or not there is a need of appointment of the parents(mother) in order to receive the cash benefits from insurance of the minor children?

Held:

No, no need for appointment of the parents(mother) in order to receive the cash benefits from insurance of her minor children when the amount is at least or lower than P50,000.00

Under Par 1 to Par 2 of Article 225 of Family Code, The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

Hence, the mother can claim the said benefits of her minor children even no special power appointment.

Article 228

Parental authority terminates permanently:

(1) Upon the death of the parents;

(2) Upon the death of the child; or

(3) Upon emancipation of the child. (327a)

By: Ibanez, Jonathan M.

Article 229

Unless subsequently revived by a final judgment,
parental authority also terminates:

(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;

(3) Upon judicial declaration of abandonment of the child in

a case filed for the purpose;

(4) Upon final judgment of a competent court divesting the

party concerned of parental authority; or

(5) Upon judicial declaration of absence or incapacity of the

person exercising parental authority. (327a)

By: Ibanez, Jonathan M.

Article 230

Parental authority is suspended upon conviction of the parent or guardian exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a)

By: Ibanez, Jonathan M.

Martinez vs Martinez GR No. 162084, June 28, 2005

FACTS:

Daniel Martinez Sr. and Natividad de Guzman-Martinez were the owners of a parcel of land. The former executed a last will and testament directing the subdivision of the property into 3 lots bequeathed to each of his sons namely Rodolfo, Manolo (designated as administrator of the estate), and Daniel Jr. In October 1997, Daniel Sr. died. Rodolfo then found a deed of sale purportedly signed by his father on September 1996 where it appears that the land was sold to Manolo and his wife Lucila and was also issued to them. Rodolfo filed a complaint against his brother Manolo and sister-in-law Lucila for the annulment of the deed of sale and cancellation of the TCT. Spouses wrote Rodolfo demanding him to vacate the property which the latter ignored and refused to do so. This prompted the spouses to file a complaint for unlawful detainer against Rodolfo. This matter was referred to the barangay for conciliation and settlement but none was reached. It was alleged in the position paper of the spouses that earnest efforts toward a compromise had been made but the same proved futile.

Issue

WON spouses Martinez complied with the requirements of Art 151 of the Family Code.

HELD:

Yes. Article 151, FC provides that no suit between members of the same family shall prosper unless it should appear from the verified complaint that earnest efforts toward a compromise have been made, but the same have failed.

Lucila Martinez, the respondent’s sister-in-law was one of the plaintiffs in the case at bar. The petitioner is not a member of the same family as that of her deceased husband and the respondent. Her relationship with the respondent is not one of those enumerated in Article 150. It should also be noted that the petitioners were able to comply with the requirements of Article 151 because they alleged in their complaint that they had initiated a proceeding against the respondent for unlawful detainer in the katarungan Pambarangay in compliance with PD 1508 and that after due proceedings, no amicable settlement was arrived at resulting in the barangay chairman’s issuance of a certificate to file action.

SUSAN NICDAO CARIÑO, petitioner, v. SUSAN YEE CARIÑO, respondent. G.R. No. 132529, 2 February 2001

Facts:

In 1969 SPO4 Santiago Cariño married Susan Nicdao Cariño. He had 2 children with her. In 1992, SPO4 contracted a second marriage, this time with Susan Yee Cariño. In 1988, prior to his second marriage, SPO4 is already bedridden and he was under the care of Yee. In 1992, he died 13 days after his marriage with Yee. Thereafter, the spouses went on to claim the benefits of SPO4. Nicdao was able to claim a total of P140,000.00 while Yee was able to collect a total of P21,000.00. In 1993, Yee filed an action for collection of sum of money against Nicdao. She wanted to have half of the P140k. Yee admitted that her marriage with SPO4 was solemnized during the subsistence of the marriage b/n SPO4 and Nicdao but the said marriage between Nicdao and SPO4 is null and void due to the absence of a valid marriage license as certified by the local civil registrar. Yee also claimed that she only found out about the previous marriage on SPO4’s funeral.

Issue:

• Whether or not the absolute nullity of marriage may be invoked to claim presumptive legitimes.

Held:

The marriage between Nicdao and SPO4 is null and void due the absence of a valid marriage license. The marriage between Yee and SPO4 is likewise null and void for the same has been solemnized without the judicial declaration of the nullity of the marriage between Nicdao and SPO4. Under Article 40 of the FC, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void.

Niñal v. Bayadog, G.R. No. 133778, Mar. 14, 2000

FACTS:

Pepito Niñal was married to Teodulfa Bellones on September 26, 1974. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. They executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years, thus, they are exempted from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their father’s death, petitioners, children of Pepito in the first marriage, filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioner’s successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code.

ISSUE:

W/N the marriage was valid

HELD:

The 5-year common law cohabitation period, which is counted back from the date of celebration of marriage should be a period of legal union. Pepito and Teodulfa’s marriage was still subsisting 5 years prior to Pepito and Norma’s marriage. 2nd marriage is void ab initio. Note: However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case.

Article 231

The court in an action filed for the purpose or in a related case may also suspend parental authority if the parent or the person exercising the same:

(1) treats the child with excessive harshness or cruelty;

(2) gives the child corrupting orders, counsel or example

(3) compels the child to beg; or

(4) subjects the child or allows him to be subjected to acts of lasciviousness.

The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority.

If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as maybe proper under the circumstances.

By Gladys Agaid-Lambayong

> Article 231 enumerates other instances where parental authority can be temporarily suspended aside from the conviction of crimes which carries with it the penalty of civil interdiction under article 230. Article 231 also gives the court authority to adopt other measures as may be proper under the circumstance. Article 231 though needs an action from the court, acting in a petition therefor or as a result of a related case, can suspend as well as to restore parental authority.

The reason for article 231 is for the best interest of the child. It is to protect the child from abuse, negligence, maltreatment, etc. from those who are supposed to rear, care or look for his/her welfare.

Article 232

If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority.

By Gladys Agaid-Lambayong

> Article 232 speaks of an instance where parental authority can be permanently withheld by the court against the parent or person exercising parental authority over the child.

Article 233

The person exercising substitute parental authority shall have the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher or individual engaged in child care exercising special parental authority, inflict corporal authority inflict corporal punishment upon the child.

By Gladys Agaid-Lambayong

> Article 233 speaks of substitute authority as was implied in article 231 and gives equal rights to the substitute parental authority as the parent has to the child. it also prohibits the persons substitute parental authority to inflict corporal punishment against the child.

Below is a case digest illustrating the provisions of the above-mentioned Articles of the Family Code:

Johanna Sombong vs. CA, et al.

GR No. 111876, January 31, 1996

Petitioner: Johanna Sombong

Respondents: Court of Appeals, et al.

Ponente: Justice Hermosisima, Jr.

This is a petition for review on certiorari that seeks to reverse the decision of the Court of Appeals that had reversed the decision of the RTC which granted the petition for habeas corpus filed by the petitioner.

FACTS:

Petitioner was the mother of Arabella Sombong, then only six months, could not be discharged from a clinic, owned by Ty, because the petitioner did not have enough money to pay the hospital bill balance. Petitioner testified that she visited Arabella at the clinic only after two years, but did not berate the spouses Ty for their refusal to give Arabella to her. Three years after, petitioner resurfaced to lay claim to her child.

Petitioner filed a petition with the RTC for the issuance of writ of habeas corpus against the spouses Ty alleging that Arabella was being unlawfully detained and imprisoned at the Ty residence. The petition was denied.

Petitioner filed a criminal complaint against spouses Ty. Dr. Ty admitted that Arabella was had been in their custody but was discharged in the clinic in April, 1989 by someone who was properly identified to be the child’s guardian. Spouses Ty was charged for kidnapping and illegal detention of a minor before the RTC. Ty revealed that the child may be found in Quezon City. At the residence pointed by Ty, a small girl named Cristina Grace Neri was found. Petitioner claimed the child as hers even if she was not sure that she was Arabella.

Petitioner filed a writ of habeas corpus with the RTC which ruled in favor of the petitioner. The Court of Appeals reversed and set aside the decision of the trial court.

ISSUE:

Whether or not the writ of habeas corpus is the proper remedy to take back Arabella

RULING:

NO. The Court explained that the purpose of the writ of habeas corpus is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. In custody cases, the child’s welfare is considered. The Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. In the same vein, the Family Code authorizes the courts to, if the welfare of the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures as may be proper under the circumstances.

In the present case, the evidence does not support that the child Cristina was the petitioner’s child, Arabella. Neither was there sufficient evidence to support that the custody of Cristina was so illegal as to warrant the grant of the writ of habeas corpus. The Court furthered that the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of adults, but on the court's view of the best interests of those whose welfare requires that they be in custody of one person or another. Hence, the court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child's welfare is the supreme consideration.

Article 234

Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years. (As amended by RA No. 6809)

By: Meneses-Gapac, Xiennia

Mode of emancipation

There is only one mode of emancipation under the law

The attainment of the age of majority

18 years

Old Law

Marriage of a minor caused his/her emancipation

Age of majority: 21 years old

Marriageable age: 14 or 16. Hence, it was possible for a minor to get married.

New Law

Marriageable age: 18

It is no longer possible for a minor to get married and be emancipated by reason of marriage.

Article 235

The provisions governing emancipation by recorded agreement shall also apply to an orphan minor and the person exercising parental authority but the agreement must be approved by the court before it is recorded.

Repealed by RA No. 6809

By: Meneses-Gapac, Xiennia

Article 236

Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases.

ontracting marriage shall require parental consent until the age of twenty-one.

Nothing in this Code shall be construed to derogate children and wards below twenty-one years of age mentioned in the second and third paragraph of Art. 2180 of the Civil Code. (As amended by RA No. 6809 )

By: Meneses-Gapac, Xiennia

Emancipation entitles the child to perform all acts of civil life. He shall also be liable for all acts of civil life.

Salen vs. Balce

G.R. No. L-14414. 27 April 1960

Facts:

Plaintiffs are the legitimate parents of Carlos Salen who died from wounds caused by Gumersindo Balce, a legitimate son of defendant who was then single, 18 years old and was living with defendant. As a result of Carlos Salen’s death, Gumersindo Balce was accused and convicted of homicide and was sentenced to imprisonment and to pay the amount of P2,000.00. Plaintiffs brought this action against defendant before CFI to recover the sum of P2,000.00, with legal interest. Defendant, in his answer, setup the defense that the law upon which plaintiffs predicate their right to recover does not here apply for the reason that law refers to quasi-delicts and not to criminal cases. CFI sustained the theory of defendant.

Issue:

Whether or not appellee can be held subsidiary liable to pay the indemnity in accordance with Art. 2180 of the Civil Code.

Ruling:

Judgment reversed. Art 2180 Civil Code applies in the case at bar. To hold otherwise would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the damage caused by his or her son, no liability would attach if the damage is caused with criminal intent. Verily, the void that apparently exists in the RPC Aart.101 is subserved by this particular provision of the Civil Code, as may be gleaned from some recent decisions of the SC which cover equal or identical cases.

Article 240

Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. (n)

By: Pomintel-Acuno, Florabel

Article 241

Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. (n)

By: Pomintel-Acuno, Florabel

Article 242

Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (n)

By: Pomintel-Acuno, Florabel

Ø The law outlines the procedure that the court shall undertake in case a transaction seeks judicial authorization where the consent of one spouse is necessary in such a transaction but the consent is withheld or cannot be obtained.

Ø These laws have cross-reference to Article 96 and 124 of the Family Code which provide for joint administration of the properties comprising the absolute community ot conjugal partnership.

“Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.”

“Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.”

Ø The law requires that the petition should state the reason why the consent cannot be secured, because if there is a good reason for withholding the consent, then the court would deny the petition.

Ø Upon the filing of the petition, the court shall notify the parties; and for the party who refuses to give consent to the transaction, to show why it should not be granted. If the said spouse fails to appear, the court shall require into the reason for the non-appearance. But if there is still non-appearance, the court may hear the petition ex-parte and render judgment as may be warranted by the evidence. If granted, the court shall make provisions of the interest of the non-appearing party.

CASE DIGEST

Case: SPOUSES RICKY WONG and ANITA CHAN, LEONARDO JOSON,

JUANITO SANTOS, EMERITO SICAT and CONRADO LAGMAN, petitioners

HON. INTERMEDIATE APPELLATE COURT and ROMARICO HENSON, respondents

Citation: G.R. No. 70082

Date: August 19, 1991

Ponente: Chief Justice Fernan

FACTS:

Respondent Romarico Henson married Katrina Pineda on January 6, 1964.1 They have three children but even during the early years of their marriage, Romarico and Katrina had been most of the time living separately. The former stayed in Angeles City while the latter lived in Manila. During the marriage or on January 6, 1971, Romarico bought a 1,787 square-meter parcel of land in Angeles City for P11,492 from his father, Dr. Celestino L. Henson2 with money borrowed from an officemate.

Meanwhile, in Hongkong sometime in June 1972, Katrina entered into an agreement with Anita Chan whereby the latter consigned to Katrina pieces of jewelry for sale valued at 199,895 Hongkong dollars or P321,830.95.4 When Katrina failed to return the pieces of jewelry within the 20-day period agreed upon, Anita Chan demanded payment of their value. On September 18, 1972, Katrina issued in favor of Anita Chan a check for P55,000 which, however, was dishonored for lack of funds. Hence, Katrina was charged with estafa before the then Court of First Instance of Pampanga and Angeles City, Branch IV.

About a month before such redemption or on August 8, 1 978, Romarico filed an action for the annulment of the decision in Civil Case No. 2224 as well as the writ of execution, levy on execution and the auction sale therein in the same Court of First Instance.14 Romarico alleged that he was "not given his day in court" because he was not represented by counsel as Attys. Albino and Yumul appeared solely for Katrina; that although he did not file an answer to the complaint, he was not declared in default in the case; that while Atty. Albino received a copy of the decision, he and his wife were never personally served a copy thereof; that he had nothing to do with the business transactions of Katrina as he did not authorize her to enter into such transactions; and that the properties levied on execution and sold at public auction by the sheriff were his capital properties and therefore, as to him, all the proceedings had in the case were null and void.

After trial on the merits, the lower court17 rendered a decision holding that Romarico was indeed not given his day in court as he was not represented by counsel nor was he notified of the hearings therein although he was never declared in default.

The appellants filed a motion for reconsideration of the decision of the appellate court but the same was denied for lack of merit on February 6, 1985. Hence, the instant petition for review on certiorari.

ISSUE:

WON the properties levied upon and sold at public auction may be reconveyed to the petitioner.

HELD:

The court, finding that there was no basis for holding the conjugal partnership liable for the personal indebtedness of Katrina, ruled in favor of the conveyance in view of the jurisprudence that the interest of the wife in the conjugal partnership property being inchoate and therefore merely an expectancy, the same may not be sold or disposed of for value until the liquidation and settlement of the community assets.

Under the Civil Code (before the effectivity of the Family Code on August 3, 1988), a wife may bind the conjugal partnership only when she purchases things necessary for the support of the family or when she borrows money for the purpose of purchasing things necessary for the support of the family if the husband fails to deliver the proper sum; when the administration of the conjugal partnership is transferred to the wife by the courts33 or by the husband and when the wife gives moderate donations for charity. Having failed to establish that any of these circumstances occurred, the Wongs may not bind the conjugal assets to answer for Katrina's personal obligation to them.

Article 243

A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties maybe assisted by counsel at the succeeding conferences and hearings.

By: Rosales, Gayle Marion R.

Article 244

In cases of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his or her failure to appear, and shall require such appearance, if possible.

By: Rosales, Gayle Marion R.

Article 245

If, despite all efforts, the attendance of non-consenting spouse is not secured, the court may proceed the ex parte and render judgment as the facts and circumstance may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse. (n)

By: Rosales, Gayle Marion R.

G.R. No. 100835 October 26, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and the SPOUSES JAMES ANTHONY HUGHES and LENITA MABUNAY HUGHES, respondents.

VITUG, J.

FACTS:

James Anthony Hughes, a natural born citizen of the US, married Leila Mabunay Hughes, Filipino, who herself was later naturalized as citizen of US. 1990, the spouses jointly filed a petition with the RTC of Angeles City to adopt Ma. Cecilia, Neil, and Maria, all surnamed Mabunay, minor niece of Lenita who had been living with the couple even prior to the filing of the petition. The minors and their parents gave consent to the adoption. RTC granted the petition. A petition for Review on Certiorari was filed assailing the trial court’s decision which the trial court affirmed.

ISSUE:

Whether or not spouses Hughes are qualified to the adopt the minor niece and nephews of Lenita under Philippine law

RULING:

No, James Anthony Hughes is not qualified to adopt under Article 184 of the Family Code because he does not fall under any of the following exceptions enumerated in paragraph (3): a. A former Filipino citizen who seeks to adopt a relative by consanguinity; b. One who seeks to adopt the legitimate child of his or her Filipino spouse; c. One who is married to a Filipino citizen and seeks to adopt jointly with his or her Filipino spouse a relative by consanguinity of the latter. While James Anthony unquestionably is not permitted to adopt, Lenita, however, can qualify pursuant to paragraph (3) (a). The problem in her case lies, instead, with Article 185 of the Code.

Article 246

If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (n)

By: Valbuena, Dona M.

Preceding articles under Title XI Chapter 2 of the Family Code could be crossed reference to ARTICLE 96 under Chapter 3 entitled System of Absolute Community and ARTICLE 124, Section 5, Administration of the Conjugal Partnership Property

Article 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to the recourse of the court by the wife for proper remedy, which must be availed within five years from the date of the contract implementing such decision

Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a)

Article 247

The judgment of the court shall be immediately final and executory. (n)

By: Valbuena, Dona M.

Article 248

The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n)

By: Valbuena, Dona M.

Explanation:

The law provides the procedure that the court shall undertake in case a transaction seeks judicial authorization where the consent of one spouse is necessary in such a transaction, but the consent is withheld or cannot be obtained. This happens when the spouses are separated in fact or one has abandoned the other. The spouse selling the community property must ask the approval of the court if consent is withheld or cannot be obtained. But if there is non-appearance after due notices to the other party, ex-parte hearings will proceed and judgment may be rendered based on the documents or pieces of evidence presented. The court shall make provisions for the protection of interests of the non-appearing spouse. Decision is final and executory, except in cases of grave abuse of discretion amounting to lack of jurisdiction.

Below is a sample illustration case of an absolute community of property regime, wherein the consent of a spouse is a material requisite to perfect a transaction involving a conjugal property.

G.R. No. 183984 April 13, 2011

ARTURO SARTE FLORES, Petitioner,

vs.

SPOUSES ENRICO L. LINDO, JR. and EDNA C. LINDO, Respondents.

Ponente- Justice ANTONIO T. CARPIO

Facts of the case:

On 31 October 1995, Edna Lindo (Edna) obtained a loan from Arturo Flores (petitioner) amounting to ₱400,000 payable on 1 December 1995 with 3% compounded monthly interest and 3% surcharge in case of late payment. To secure the loan, Edna executed a Deed of Real Estate Mortgage (the Deed) covering a property in the name of Edna and her husband Enrico (Enrico) Lindo, Jr. (collectively, respondents). Edna also signed a Promissory Note and the Deed for herself and for Enrico as his attorney-in-fact.

Edna issued three checks as partial payments for the loan. All checks were dishonored for insufficiency of funds, prompting petitioner to file a Complaint for Foreclosure of Mortgage with Damages against respondents. The case was raffled to the Regional Trial Court of Manila, Branch 33 (RTC, Branch 33) and docketed as Civil Case No. 00-97942.

In its 30 September 2003 Decision, the RTC, Branch 33 ruled that petitioner was not entitled to judicial foreclosure of the mortgage. The RTC, Branch 33 found that the Deed was executed by Edna without the consent and authority of Enrico. The RTC, Branch 33 noted that the Deed was executed on 31 October 1995 while the Special Power of Attorney (SPA) executed by Enrico was only dated 4 November 1995.

The RTC, Branch 33 further ruled that petitioner was not precluded from recovering the loan from Edna as he could file a personal action against her. However, the RTC, Branch 33 ruled that it had no jurisdiction over the personal action which should be filed in the place where the plaintiff or the defendant resides in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure.

Petitioner filed a motion for reconsideration. In its Order dated 8 January 2004, the RTC, Branch 33 denied the motion for lack of merit.

On 8 September 2004, petitioner filed a Complaint for Sum of Money with Damages against respondents. It was raffled to Branch 42 (RTC, Branch 42) of the Regional Trial Court of Manila, and docketed as Civil Case No. 04-110858.

In its Order dated 8 February 2006, the RTC, Branch 42 denied respondents’ motion. The RTC, Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision did not mean that petitioner could no longer recover the loan petitioner extended to Edna.

On 22 July 2005, the RTC, Branch 42 issued an Order denying the motion to dismiss. The RTC, Branch 42 ruled that res judicata will not apply to rights, claims or demands which, although growing out of the same subject matter, constitute separate or distinct causes of action and were not put in issue in the former action. Respondents filed a motion for reconsideration. In its Order9 dated 8 February 2006, the RTC, Branch 42 denied respondents’ motion. The RTC, Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision did not mean that petitioner could no longer recover the loan petitioner extended to Edna.

Respondents filed a Petition for Certiorari and Mandamus with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order before the Court of Appeals.

The Court of Appeals set aside the 22 July 2005 and 8 February 2006 Orders of the RTC, Branch 42 for having been issued with grave abuse of discretion.

The Court of Appeals ruled that while the general rule is that a motion to dismiss is interlocutory and not appealable, the rule admits of exceptions. The Court of Appeals ruled that the RTC, Branch 42 acted with grave abuse of discretion in denying respondents’ motion to dismiss.

The Court of Appeals ruled that under Section 3, Rule 2 of the 1997 Rules of Civil Procedure, a party may not institute more than one suit for a single cause of action. If two or more suits are instituted on the basis of the same cause of action, the filing of one on a judgment upon the merits in any one is available ground for the dismissal of the others.

The Court of Appeals ruled that on a nonpayment of a note secured by a mortgage, the creditor has a single cause of action against the debtor, that is recovery of the credit with execution of the suit. Thus, the creditor may institute two alternative remedies: either a personal action for the collection of debt or a real action to foreclose the mortgage, but not both. The Court of Appeals ruled that petitioner had only one cause of action against Edna for her failure to pay her obligation and he could not split the single cause of action by filing separately a foreclosure proceeding and a collection case. By filing a petition for foreclosure of the real estate mortgage, the Court of Appeals held that petitioner had already waived his personal action to recover the amount covered by the promissory note.

Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution, the Court of Appeals denied the motion.

Issue:

Whether or not the REM for the conjugal property, entered into by only one spouse is valid or not?

Held

The Deed of Real Estate Mortgage was executed by defendant Edna Lindo lacks the consent or authority of her husband Enrico Lindo, the Deed of Real Estate Mortgage is void pursuant to Article 96 of the Family Code.

This does not mean, however, that the plaintiff cannot recover the ₱400,000 loan plus interest which he extended to defendant Edna Lindo. He can institute a personal action against the defendant for the amount due which should be filed in the place where the plaintiff resides, or where the defendant or any of the principal defendants resides at the election of the plaintiff in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure.

The 30 May 2008 Decision and the 4 August 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 94003 were SET ASIDE. The Regional Trial Court of Manila, Branch 42 was directed to proceed with the trial of Civil Case No. 04-110858.

ARTICLE 249

Petitions filed under Articles 223, 225, and 239 of this Code involving parental authority shall be verified. (n)

By: Calano, Ryan Ernest

As provisioned in this article, those preceding articles mentioned above has to do with the petitions involving parental authority;

Article 223 – Parental Authority in the Person of Children

Article 225- Parental Authority in the Property of the Children

Article 239- Petition involving the separated in fact between the Husband and Wife

Note that the non-verification is not a jurisdictional defect. It is only a formal requirement of a pleading which can be cured by subsequent acts. Like for example, if a petition is filed but not verified, the court can always order the party to verify it at any stage of the proceedings. That cures the defect of the pleading or petition.

ARTICLE 250

Such petitions shall be filed in the proper court of the place where the child resides.

By: Calano, Ryan Ernest

The venue of the petitions referred to in this preceding article hereof is the place where the child resides., or if he resides abroad, in the place where his proper or any part thereof is located.

GR No. L-34115 Februry 25, 1931

Salvaña vs Gaela,

Villa-Real, J.;

Facts:

Spouses Salvaña filed a petition of a recovery of their minor daughter Felicisima Salvaña fifteen years of age, single, of Lucban, Tayabas, in Court of First Instance of Tayabas in the custody of Leopoldo Gaela, then the Justice of Peace of Lucban, Tayabas. It was decided that the said petition was denied by Judge Anastacio Teodoro of the Court of First Instance of Tayabas and ordered the appointment of guardian as soon as possible, or upon the filing of the petition announced at the hearing based upon the following considerations:

Whereas it has been shown that Felicisima Salvaña has chosen the home of respondent Leopoldo Gaela, of her own free will because the latter had only daughters, and the minor Felicisima Salvaña therefore found it convenient for her own interests to remain in said home; and whereas the court is convinced that the petitioners seek by their acts to interfere with the personal liberty of their own daughter by inducing her to make a cruel sacrifice, namely, to marry a man she does not care for, and against her will;

Let judgment be rendered dismissing the petition and denying the petitioners the custody of the minor Felicisima Salvaña. A guardian shall be appointed as soon as possible, or upon the filing of the petition announced at the hearing.

Then in Court of Appeal the petitioner filed a writ of Habeas Corpus for the Respondent Justice of Peace Teodoro, later CA actually affirmed the decision of the Court of first Instance of Tayabas of dismissing the petition.

Issues:

Whether or not the habeas corpus will lie for the recovery of the custody of an unemancipated minor daughter who is in the custody of a third person on her free will?

Was there deprivation of Parental authority that was missed by the lower courts?

HELD;

In view of the foregoing considerations, we are of opinion and so hold: (1) That the writ of habeas corpus is the proper legal remedy to enable parents to regain the custody of a minor daughter, even though the latter be in the custody of a third person of her own free will; and (2) that neither the fact that the parents of a minor daughter sought to compel her to marry against her will, where it does not appear such a purpose has continued, nor their refusal to consent to her marriage to another young man, by whom she is pregnant, is a legal ground for depriving said parents of their parental authority and the custody of said daughter.

By virtue whereof, the judgment appealed from is reversed, and the writ of habeas corpus granted, and since it does not appear from the record that any guardian has qualified or taken over the minor Felicisima Salvaña, the respondent is hereby ordered to deliver the person of said minor to her father Francisco Salvaña, without special pronouncement of costs.

So ordered.

Article 251

Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (n)

By: Laurente, Ivy M

Article 252

The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n)

By: Laurente, Ivy M

Chapter 4. Other Matters Subject to Summary Proceedings

Article 253

The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable. (n)

By: Laurente, Ivy M

DISCUSSION:

Regarding Article 251, when a petition was filed, the court's duty is to disseminate the information to the persons involved.

While, Article 252 and 253 is the affirmation of the proceedings process governed by the cited articles on 252 and 253 unless amendments are present.

CASE DIGESTED FROM THE BOOK

Sombong Vs. Court of Appeals

G.R. No. 111876

January 31, 1996

FACTS:

Petitioner is the mother of the subject child Arabella Sombong. Arabella was six months old when the petitioner brought her to Sir John Clinic. Arabella coould not be discharged because of the petitioner's failed to pay the bills. She allegedly paid the bills by installment but the owners Dr. Carmen and Vicente Ty refused to turn over Arabella. The petitioner claimed that for several years, her tries to visit her child was ignored. Petitioner therefore filed a kidnapping case against and illegal detention against the owners. Dr. Ty disclosed the possibility that the child may be found at a certain address, where the agents of NBI went to and found a female child, Cristina, living with respondent Marietta. At a confrontation, Dra. Ty could not be sure that Cristina was indeed Arabella, neither the petitioner.

Petitioner filed a petition for the issuance of a Writ of Habeas Corpus before the RTC, which rendered a decision in favor of petitioner since respondents have no parental authority of the child, superior to that of that of the petitioner. While on appeal, CA reversed and set aside the decision of the trial court.

ISSUE:

WON Petitioner has the custody of the minor child?

HELD:

NO. As ruled by the SC, stated that the evidence in this case does not support a finding that the child, Cristina, is in truth and in fact her child, Arabella.

Considering that the child's welfare is an all-important factor in custody cases, the Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. Respondents are financially, physically and spiritually in a better place to take the child, Cristina. They have the best intention for Cristiina, but it is not about the best intention and interest, the Court of Appeals gave the reason: “As to the issue of the welfare of the child, petitioner-appellee's capability to give her child the basic needs and guidance in life appear (sic) to be bleak. Before the lower court petitioner-appellee filed a motion to litigate as pauper as she had no fixed income. She also admitted that she had no stable job, and she had been separated from a man previously married to another woman. She also confessed that she planned to go abroad and leave her other child Johannes to the care of the nuns. The child Arabella Sombong wherever she is certainly does not face a bright prospect with petitioner-appellee.”

ARTICLE 254

Titles III, IV, V, VI, VII, VIII, IX XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended and Articles 17,18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and youth Welfare Code, as amended, and all laws, decrees, Executive Orders, Proclamations, Rules and Regulations or parts thereof, inconsistent herewith are hereby repealed.

By: Sarmiento, Sheryl

ARTICLE 255

If any provision of this Code is held invalid, all other provisions not affected thereby shall remain valid.

By: Sarmiento, Sheryl

ARTICLE 256

This Code shall have retroactive effect insofar as it does prejudice or impair vested rights or acquired rights in accordance with the Civil Code or other laws.

By: Sarmiento, Sheryl

Vested right

Ø is an immediate fixed right of present and future enjoyment.

Example:

1. An adoption granted under the Child and Youth Welfare Code cannot be annulled by the requirement of joint adoption under Article 185 of the Family Code.

2. The rights acquired by the adopted child under the Child and Youth Welfare Code cannot be defeated by the enactment of a new law.

The Family Code
Effectivity: August 3, 1988

Illustration:
Spouses were married prior to the effectivity of the Family Code. They sold the conjugal property on March 18, 1991. Article 124 of the Family Code applies on the sale which provides that any alienation or encumbrance of conjugal property made during the effectivity of the Family Code

Jovellanos v. CA, G.R. No. 100728 June 18, 1992

Facts:

• Daniel Jovellanos contracted with Philam life a lease and conditional sale agreement of a property. When the agreement took place, Daniel was still married to his first wife, Leonor, with whom he had three children. Leonor died on January 2, 1959. On May 30, 1967, Daniel was remarried to Annette (respondent). On December 18, 1971, Mercy (daughter from first marriage) and her husband, built an extension at the back of the said property. On January 8, 1975, the lease was paid and Philamlife executed a deed of absolute sale to Daniel. The following day, he then donated the said property to his children in the first marriage (petitioners). On September 8, 1985, Daniel died.

• Annette now claims that the said property is the conjugal property belonging to the second marriage due to the fact that the deed of absolute sale was dated during the celebration of their marriage (Jan. 8, 1975).

Issue:
To which marriage does the property belong to as conjugal property?

HELD

• The Court held that the said property belongs to the second marriage, but also proclaims that reimbursements should be made to the children of the first marriage (in line with ART 118 of the FC).

• The contract entered into by Daniel and Philamlife is specifically denominated as a "Lease and Conditional Sale Agreement" with a lease period of twenty years. During the twenty-year period, Daniel had only the right of possession over the property. The lessor transfers merely the temporary use and enjoyment of the thing leased. Generally, ownership is transferred upon delivery, however, the ownership may still be with the seller until full payment of the price is made.

• Only at the time when the payments are made in full will the deed of absolute sale be given, entitling the buyer (Daniel) as the true owner, rather than just having inchoate rights to the property. The time when he was able to pay the remaining balance, he was already married to his second wife, Annette, which makes the said property as their conjugal property.

• ART 118: “any amount advanced by the partnership or by either or both spouses shall be reimbursed”

• Depriving the children from the first will be unfair due to the fact that the lease was contracted during the first marriage, wherein a portion of the payment came from.

ARTICLE 257

This code shall take effect one year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary, Office of the President.

Publication shall likewise be made in the official Gazette. (n)

By: Aguilba, Ray Dean

EFFECTIVITY OF THIS CODE

The publication of the Family Code of the Philippines in the Manila Chronicle, a newspaper of general circulation, was completed on August 4, 1987. Hence, the said code took effect on August 3, 1988 (Memorandum Circular No. 85) dated November 7, 1988 of the office of the President of the Philippines.

CASE DIGEST:

LORENZO M. TAÑADA, Petitioner, v. HON. JUAN C. TUVERA, Respondent

[G.R. No. L-63915. December 29, 1986.]

FERNAN, J.,

FACTS:

Petitioners herein are seeking a writ of mandamus to compel public officials to publish and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letters of implementation, and administrative orders. Respondents, on the other hand, claimed that this case has no legal personality or standing. Further, they argued that the publication in the Official Gazette in necessary for the effectivity of the law where the law themselves provides for their own effectivity dates.

ISSUE:

Whether or not the statutes in question which contain special provisions as to the date they are to take effect still need to be published in the Official Gazette?

HELD:

Yes. Publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date, for then the date of publication is material for determining the date of the effectivity which must be 15 days following the completion of its publication, but not when the law itself provides for the date when it goes to effect. Publication of laws is part of substantive due process.

ARTICLE 306

Every funeral shall be in keeping with the social position of the deceased.

By: Laurente, Ivy M

TERMS DEFINED:

Funeral

the ceremonies honoring a dead person, typically involving burial or cremation

Social status

is the level of social value a person is considered to hold. More specifically, it refers to the relative level of respect, honor, assumed competence, and deference accorded to people, groups, and organizations in a society.

ARTICLE 307

The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family.

By: Laurente, Ivy M

Article 307 refers to right of the deceased person on his/her funeral. This article provides that the personal wishes and beliefs of the deceased person should be followed upon his/her funerals.

CASE DIGESTED FROM THE BOOK:

ROSENDA ALMEIDA VIUDA DE CARRILLO, petitioner-appellee,
vs.
CORAZON EDELMIRA CARRILLO DE GALANG, GRACIA CARRILLO, and ROMULO CARRILLO

G.R. No. L-45320

January 26, 1939

Facts:

Macario Carrillo died in the City of Manila on May 17, 1931, leaving as next of kin, his widow, Rosenda Almeida, the appellee, and his three children by his first marriage, Corazon Edelmira Carrillo, Romulo Carrillo and Gracia Carrillo, the appellants. With the consent of all the relatives, the appellee caused the remains of the deceased to be buried in the private lot of the Intengan family in the North Cemetery, Manila, to be transferred later after a period of three years but not more than five, upon paying P100 for the use of the lot. Later on, in the Court of First Instance of Manila, the intestate proceedings of the decedent were commenced, special proceedings No. 39632, and in the project of partition submitted by all the co-heirs, and approved by the court, said co-heirs agreed upon the following:

(6) Out of love for her late husband, Macario Carrillo, the party of the first part (Rosenda Almeida) undertakes to pay the expenses of the last illness of the decedent, such as medicine, physician's fees and nurses; cost of the funeral and the care of the tomb.

Sometime in January, 1963, the appellee built a mausoleum in Biñan, Province of Laguna, for the remains of her late husband. In a while before the expiration of the period of five years for the exhumation of said remains, the appellants secured the consent of the appellee to have the remains of the deceased transferred to the Ermita Church in Manila believing it is temporary. As the children [appellants] were about to remove and transfer the remains, P Rosenda moved to enjoin the children from removing the same and the court ordered the children to abstain from doing it

Issue:

Whether or not they have a right than the appellee to move the remains of the deceased and transfer them to the place they had chosen.

Ruling:

The agreement of the parties is decisive, in which they agreed in the partition approved by the court that the widow would undertake to care of his tomb

The word “tomb” has been used without any restriction or limitation

- It should be interpreted as both the grave and that which might be determined after the 5-year period for the conservation of the remains of the deceased

P Rosenda, as the surviving spouse has a better right than the children and the children cannot object to the transfer of the remains of the deceased P Rosenda erroneously gave her consent, for she was made to believe by the children that the transfer of the remains would only be temporary and that her consent would facilitate the subsequent transfer to the mausoleum.

In this jurisdiction there is no express law which determines the preference, among the next of kin of a deceased, with regard to the disposition of his remains. The court hold, then, that under the terms of said agreement, the appellee has a better right than the appellants, and the latter cannot object to the transfer of the remains of the deceased by the appellee to the mausoleum she built in Biñan, Laguna.

ARTICLE 305

The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right.

By: Calano, Ernest Ryan R.

Article 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order:

(1) From the spouse;

(2) From the descendants of the nearest degree;

(3) From the ascendants, also of the nearest degree;

(4) From the brothers and sisters.

Among descendants and ascendants, the order in which they are called to the intestate succession of the person who has a right to claim support shall be observed. (144)

ARTICLE 308

No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in Articles 294 and 305.

By: Sarmiento, Sheryl

ARTICLE 309

Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral.

By: Sarmiento, Sheryl

Article 310

The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouse.

By: Sarmiento, Sheryl

G. R. No. 182894
Valino v Adriano Et. Al. April 22, 2014
Ponente: Mendoza

FACTS:

• Atty. Adriano married respondent Rosario, they had 6 children.

• Marriage of Atty. Adriano and Rosario, however, turned sour and they were eventually separated-in-fact. Years later, Atty. Adriano courted Valino, one of his clients, until they decided to live together as husband and wife. Despite such arrangement, he continued to provide financial support to Rosario and their children.

• Atty. Adriano died in 1992, during which Rosario was in the US.4) None of the family members was around, Valino took it upon herself to shoulder the funeral and burial expenses for Atty. Adriano. When Rosario learned about the death of her husband, she immediately called Valino and requested that she delay the interment for a few days but her request was not heeded. Respondents were not able to attend the interment.

• Claiming that they were deprived of the chance to view the remains of Atty. Adriano before he was buried and that his burial at the Manila Memorial Park was contrary to his wishes, respondents commenced suit against Valino praying that they be indemnified for actual, moral and exemplary damages and attorney’s fees and that the remains of Atty. Adriano be exhumed and transferred to the family plot.

• In her defense, Valino countered that Rosario and Atty. Adriano had been separated for more than twenty (20) years before he courted her. Valino claimed that throughout the time they were together, he had introduced her to his friends and associates as his wife.

• RTC ruled in favor of Valino. CA reversed the decision.

ISSUE

Who between a legal spouse and a live-in partner, who has taken care of and lived with the deceased at the time of illness and subsequent death, has better right over the body?

HELD

The legal spouse Art. 199 of the Family Code in relation to Article 305 of the Civil Code provides who has rights over funeral arrangements. The SC stated that the law simply confines the right and duty to make funeral arrangements to the members of the family to the exclusion of one’s common law partner. It it is clear that the law gives the right and duty to make funeral arrangements to Rosario, she being the surviving legal wife of Atty. Adriano. The fact that she was living separately from her husband and was in the United States when he died has no controlling significance. To say that Rosario had, in effect, waived or renounced, expressly or impliedly, her right and duty to make arrangements for the funeral of her deceased husband is baseless. The right and duty to make funeral arrangements, like any other right, will not be considered as having been waived or renounced, except upon clear and satisfactory proof of conduct indicative of a free and voluntary intent to that end.9 While there was disaffection between Atty. Adriano and Rosario and their children when he was still alive, the Court also recognizes that human compassion, more often than not, opens the door to mercy and forgiveness once a family member joins his Creator. Notably, it is an undisputed fact that the respondents wasted no time in making frantic pleas to Valino for the delay of the interment for a few days so they could attend the service and view the remains of the deceased.

TITLE XIII

USE OF SURNAMES (n)

ARTICLE 364

Legitimate and legitimated children shall principally use the surname of the father.

By: Aguilba, Ray Dean

> Legitimate – Those conceived or born during a valid marriage of the parents, or within lawful wedlock. (Article 164)

> Illegitimate – Those conceived and born outside a valid marriage or outside lawful wedlock. (Article 165)

CASE DIGEST

ANGELES VS. MAGLAYA 469 SCRA 364 (2005)

FACTS:

Petitioner Belen Angeles is the wife of the deceased while the respondent Aleli Maglaya is the child of the deceased Francisco Angeles in his first wife. Francisco died intestate and the respondent seeks administration of the estate of the deceased but opposed by the surviving wife (2nd wife) alleging that the respondent is an illegitimate child of the deceased. Petitioner also averred that respondent could not be the daughter of Francisco for, although she was recorded as Francisco’s legitimate daughter, the corresponding birth certificate was not signed by him. Respondent alleged, inter alia, that per certification of the appropriate offices, records of marriages of the Civil Registrar where the alleged 1938 Francisco-Genoveva wedding took place were destroyed.

ISSUE:

Whether or not the respondent is illegitimate precluding her to become the administrator of the deceased Francisco Angeles’s Estate?

HELD:

No, respondent is not illegitimate. Article 164 of the Family Code cannot be more emphatic on the matter: “Children conceived or born during the marriage of the parents are legitimate.”The issue of legitimacy cannot be attacked collaterally.

ARTICLE 365

An adopted child shall bear the surname of the adopter.

By: Aguilba, Ray Dean

WHAT IS ADOPTION?

Adoption may be considered a process "to take into one's family through legal means and raised as one's own child"

ADOPTED CHILD

The child who is not the natural child of the parents but has become a true child by legal action.

CASE DIGEST:

HONORATO B. CATINDIG, petitioner G.R. No. 148311. March 31, 2005

FACTS:

Honorato Catindig filed a petition to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He prayed that the child’s middle name Astorga be changed to Garcia, her mother’s surname, and that her surname Garcia be changed to Catindig, his surname.

Trial court granted the petition and declared Stephanie as his legitimate child and heir, and pursuant to Art. 189 of the Family Code, she is now known as Stephanie Nathy Catindig.

Honorato filed a motion for clarification and/or reconsideration that Stephanie should be allowed to use the surname Garcia as her middle name.

The Republic, through the OSG, agreed with Honorato for her relationship with her natural mother should be maintained and preserved, to prevent any confusion and hardship in the future, and under Article 189 she remains to be an intestate heir of her mother.

ISSUE:

Whether or not an illegitimate child, upon adoption by her natural father, uses the surname of her natural mother as her middle name?

HELD:

Yes. there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother’s surname, we find no reason why she should not be allowed to do so.

Article 176 of the Family Code, as amended by Republic Act No. 9255, (An Act Allowing Illegitimate Children To Use The Surname Of Their Father) is silent as to what middle name a child may use. Article 365 of the CC merely provides that “an adopted child shall bear the surname of the adopter.” Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter.

Republic Act No. 8552, (Domestic Adoption Act of 1998) an legitimate child by virtue of her adoption, Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother.

Article 366

A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. (Repealed)

By: Austria,Honeylee B.

Article 367

Natural children by legal fiction shall principally employ the surname of the father.

By: Austria,Honeylee B.

Article 368

Illegitimate children referred to in Article 287 shall bear the name of the mother.

By: Austria,Honeylee B.

ARTICLE 369

BY:Cordero, Loida F. #4

Article 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.

Use of Surnames

Under the Family Code, illegitimate children must use the surname of their mothers even if the father has admitted paternity and has consented to the registration of the child under his name.

Change of Name

While an illegitimate child of a woman maybe allowed to bear the surname of its stepfather without the benefit of adoption, a legitimate child had by a prior marriage may not because it could result in confusion as to its paternity and might also bring discredit in its legitimate status.

Article 370. A married woman may use:

Her maiden first name and surname and add her husband’s surname; or
Her maiden first name and her husband’s surname; or
Her husband’s full name, but prefixing a word indicating that she is his wife, such as “ Mrs. “

Illustration:

Janet Calvan got married to Andy Ancheta. Janet can use the name Janet Calvan Ancheta. Or, she can use the name Janet Ancheta; or she can use Mrs. Andy Ancheta.

Article 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her husband’s surname unless:

The court decrees otherwise; or
She or the former husband is married again to another person

A married woman may revert to her maiden surname after being divorced by the husband even without authority of the court.

Facts:

When Hiyasmin D. Abdul got married to Hakeem Rauf, she started using her husband’s surname. Then, they were divorced. Their divorce became irrevocable after observance of a period of three monthly courses from the decree of divorce ( Arts. 56, 57, P. D. No. 1083). Their marriage bond was severed. Then, Hakeem, got married to another woman, so when Hiyasmin learned of it, she filed a petition asking that she be allowed to resume the use of her maiden name. It was denied on the ground that the petition was, in effect, a petition for change of name and hence, it must comply with the requirements of the Rules of Court.

Issue: Was the decision correct?

Held: No, a petition for the resumption of maiden name and surname is not a petition for change of name. The true and real name of a person is that given to him and entered in the Civil Registrar. It is the only true and official name that may be changed with judicial authority. In this case, Hiyasmin’s registered name is Hiyasmin A. Abdul. In effect, she does not seek to change her registered name but instead prays that she be allowed to resume the use of her maiden name in view of the dissolution of her marriage to Hakeem by virtue of a divorce decree granted in accordance with Muslim Law.

Under our Civil Code, a married woman may use only her maiden name and surname, although she has the option, but not a duty, to use the surname of her husband under Article 370 of this Code. She need not apply and/or seek judicial authority to do so. Similarly, when the marriage ties no longer exist, as in the case of the death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change of her civil status in order to revert to her maiden name as the use of her husband’s surname is optional and not obligatory for her.

When Hiyasmin married Hakeem, she did not change her name but only her civil status, so, her petition to resume the use of her maiden name is a superfluity and an unnecessary proceeding. The Supreme Court also made a pronouncement that the only exception was legal separation, where she may not revert to her maiden name and surname at will, but must continue using her name and surname employed before the decree of legal separation.

Article 375

In case of identity of names and surnames between ascendants and descendants, the word “Junior” can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother’s surname; or (2) Add the Roman numerals II, III, and so on.

By: Rosales-Ademe, Maia Caireen

To distinguish between two persons with identical names, especially ascendants and descendants, the younger shall be obliged to use identifying names or marks to avoid confusion.

Illustration:

Luis Garces is married to Ely Ahorro. They have a son named Luis. The latter can use Luis, Jr. to distinguish the ascendant from the descendant to avoid confusion. Roman numerals can also be used to distinguish one from the other.

Article 376

No person can change his name or surname without judicial authority.

By: Rosales-Ademe, Maia Caireen

Grounds to change one’s own name or surname:

(1) When the name is ridiculous or tainted with dishonor; extremely difficult to write or pronounce;

(2) When the right to a new name is a consequence of a change of status, like where a natural child is acknowledged or legitimated;

(3) When the change is necessary to avoid confusion;

(4) A sincere desire to adopt a Filipino name to erase signs of a former alien nationality which unduly hampers social and business life.

G.R. No. 97906 May 21, 1992

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and MAXIMO WONG, respondents.

REGALADO, J.:

FACTS:

Private respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he was but two and a half years old and then known as Maximo Alcala, Jr., and his sister Margaret Alcala, was then nine years old, they were, with the consent of their natural parents 3 and by order of the court in Special Case No. 593 4 issued on September 9, 1967, adopted by spouses Hoong Wong and Concepcion Ty Wong, both naturalized Filipinos. Hoong Wong, now deceased, was an insurance agent while Concepcion Ty Wong was a high school teacher. They decided to adopt the children as they remained childless after fifteen years of marriage. The couples showered their adopted children with parental love and reared them as their own children.

Upon reaching the age of twenty-two, herein private respondent, by then married and a junior Engineering student at Notre Dame University, Cotabato City, filed a petition to change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname.

ISSUE:

Whether or not the reasons given by private respondent in his petition for change of name are valid, sufficient and proper to warrant the granting of said petition.

HELD:

There could be no other plausible reason for private respondent to first secure has adoptive mother's consent before resorting to the questioned legal recourse other than the parental respect and reverence which is owed by and to be expected of a dutiful child. If private respondent was such an ingrate, as the Solicitor General would have us believe, he would not have bothered to seek his adoptive mother's counsel. In the same breath, had his adoptive mother regarded him as an ungrateful adoptee, she would not have executed the affidavit above quoted, much less testify in his behalf at the hearing of his petition.

Moreover, worthy of note is the fact that private respondent's adoptive mother emphasized that she executed the above affidavit "without affecting the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir(s)." This is incontrovertible proof that she never entertained any misgivings or reservations with respect to her consent to his petition. This likewise dispels any possible confusion as to private respondent's legal status or adoptive paternity and his successional rights. Concordantly, we have heretofore held that a change of name does not define or effect a change in one's existing family relations or in the rights and duties flowing therefrom. It does not alter one's legal capacity, civil status or citizenship; what is altered is only the name.

Article 377

Usurpation of a name and surname may be the subject of an action for damages and other relief.

By: Rosales-Ademe, Maia Caireen

Article 378

The unauthorized of unlawful use of another person’s surname gives a right of action to the latter.

By:Guiang, Aprilyn

The usurpation of name implies injury to the interest of the owner of the name. It consists in the possibility of confusion of identity, or the appearance of some family relation between the owner and usurper. It exists when a person designates himself by another’s name, such as when he uses it in his personal cards, his signboards, his signature for voting purposes.

Illustration:

Atty. Victoriano Miguel’s name and surname are being used by Mr. Pedro Miguel in the practice of law, or in his business dealings with others.

There is no usurpation when the name is used to designate a particular merchandise or article. There may be an unlawful use but not usurpation.

The following must be present to determine whether there is a usurpation of name;

1. That there is an actual use of another’s name by the defendant;

2. That the use is unauthorized;

3. The use of another’s name is to designate personality or identity a person (Tolentino v CA, 162 SCRA 66)

Proof of actual injury to another or the owner of the name is not necessary because there is always the potential harm due to the possibility of confusion of identity.

Remedies of owner of the name whose being usurped

1. Moral and actual damages

2. Restrain the further use of the same

Article 379

The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.

By:Guiang, Aprilyn

Pseudonym is a conventional fictitious name freely chosen by a person to disguise his personality. It designates a person in peculiar activity, his reputation and the value of his work are reflected in such designation.

A person may use various pseudonyms, but no pseudonym may be used which may give rise to confusion with another existing name.

Pseudonym cannot be used in any transaction with the State, as it is intended only for literary, artistic, scientific, and professional activities.

In Ong v. Republic, 54 O.G. 2527, it was said that the right to the use of a pseudonym is acquired depending upon the circumstances. Thus, a simple use of a pseudonym in a literary work of lasting fame would be enough; but not when the person used it merely in passing, as an actor in just one play.

Article 380

Except as provided in the preceding article, no person shall use different names and surnames.

By:Guiang, Aprilyn

It is the duty of every individual to use his correct name and surname in dealing with the government. If it is a private dealing, he is not obliged, except if there is a wrongful or unlawful purpose.

Any person who shall use a fictitious name for the purpose of concealing a crime, evading the execution of judgement or causing damage shall be penalized of arresto mayor and a fine not exceeding P500.00.

Any person who conceals his true name and other personal circumstances shall be punished by arresto menor or a fine not to exceed P200.00.

Case:

Cesario Ursua v. CA, et al.

G.R. No. 112170, April 10, 1996

70 SCAD 123

Ponente: Justices BELLOSILLO

Facts:

Atty. Francis Palmones, counsel of petitioner, wrote the Office of Ombudsman requesting that he be furnished a copy of the complaint against petitioner. Atty Palmones ask Cesario Ursua to take his letter-request to the Office of Ombudsman

On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City requesting that he be furnished a copy of the complaint against petitioner. Atty. Palmones then asked his client Ursua to take his letter-request to the Office of the Ombudsman because his law firm’s messenger, Oscar Perez, had to attend to some personal matters. Before proceeding to the Office of the Ombudsman, the petitioner talked to Oscar Perez and told him that he was reluctant to personally ask for the document since he was one of the respondents before the Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if ever he would be required to acknowledge receipt of the complaint.

When the petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to register in the visitors’ logbook. Instead of writing down his name, the petitioner wrote the name "Oscar Perez" after which he was told to proceed to the Administrative Division for the copy of the complaint he needed. He handed the letter to Atty. Palmones to the Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt of which he acknowledged by writing the name "Oscar Perez."

Before the petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who also worked in the same office. They conversed for a while then he left. When Loida learned that the person who introduced himself as "Oscar Perez" was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station, Loida reported the matter to the Deputy Ombudsman who recommended that petitioner be accordingly charged.

The trial court found him guilty of violating Sec. 1 of C.A. No. 142 as amended by R. A. No. 6085.

Petitioner appealed to the Court of Appeals which affirmed the conviction of petitioner.

Issue:

Whether or not the Court of Appeals erred in not considering the defense theory that he was charged under the wrong law

Held:

Yes, the Court of Appeals erred in not considering the defense theory that he was charged under the wrong law.

An alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A man’s name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases. Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. This is so in the case at bench.

It is not disputed that petitioner introduced himself in the Office of the Ombudsman as "Oscar Perez," which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain the copy of the complaint in which the petitioner was a Respondent. There is no question then that "Oscar Perez" is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name "Oscar Perez" was made by the petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances.

While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused. The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. Indeed, our mind cannot rest easy on the proposition that the petitioner should be convicted on a law that does not clearly penalize the act done by him.

Article 381

When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.

This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. n(181a)

By: Ibanez, Jonathan M.

There is temporary or provisional absence as soon as a person disappears from his domicile and his whereabouts are unknown leaving no administrator of his property.

Normal or declared absence is one judicially declared after two years since the last news was heard from him, or five years if he left an administrator.

Definite or presumptive death takes place when, after the period provided by law, a person is presumed dead; the period varies according to the circumstances. (Tolentino, Civil Code). The law requires that in order to justify the taking of remedies for provisional absence, it is necessary that no news be heard of the person who has disappeared, after a reasonable period shall have lapsed. Furthermore, there must be an immediate necessity for his representation in some specific urgent matter. (1 Castan 182-183).

Article 382

The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and renumeration of his representative, regulating them, according to the circumstances, by the rules concerning guardians.

By: Ibanez, Jonathan M.

The procedure that should be followed by the court in the appointment of a representative of an absentee is governed by Rule 107 of the Rules of Court. The court, however, must, under the circumstances issue orders to protect the rights and interests of the absentee. The guardian appointed cannot sell or encumber properties of the absentee without approval or authority; otherwise, the sale is rescissible. (Art. 1368, New Civil Code). The powers of the guardian must be specified by the court appointing him. He cannot exercise powers outside of those conferred upon him by the court. The authority can be revoked.

Article 383.

In the appointment of a representative, the spouse present shall be preferred when there is no legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (183a)

By: Ibanez, Jonathan M.

The law says that in the appointment of a representative for an absentee, the spouse present is preferred, except in case of legal separation. If there is no spouse, then the court has the power to appoint any competent person.

• 141 scra 65 reyes vs alejandro PATAJO, J.:

FACTS:

• This is an appeal from an order of the Court of First Instance of Cavite dismissing the petition filed by petitioner-appellant Erlinda Reynoso Reyes to have her husband Roberto Reyes declared an absentee.

• In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the declaration of the absence of her husband Roberto L. Reyes alleging that her husband had been absent from their conjugal dwelling since April 1962 and since then had not been heard from and his whereabouts unknown. The petition further alleged that her husband left no will nor any property in his name nor any debts.

ISSUE:

Won Roberto L. Reyes has any rights, interest or property in the Philippines. Declaring him as an absentee

HELD:

Judgment is hereby rendered AFFIRMING the order of the lower Court dismissing the petition to declare Roberto L. Reyes an absentee. With costs against petitioner-appellant.

Antonio A.S. Valdes, vs. Regional Trial Court
G.R. No. 122749. July 31, 1996.

FACTS:

Antonio Valdes and Consuelo Gomez were married and begotten five children. Valdes sought the declaration of nullity of the marriage pursuant to Article 36 of the Family Code which was granted. The judgment rendered includes the custody of children and liquidation of their common properties as defined by Article 147 of the Family Code, and to comply with the provisions of Articles 50, 51 and 52. Consuelo Gomez sought a clarification and asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in “unions without marriage.”

ISSUE:

-Whether or not Article 147 of the Family Code does not apply to cases where the parties are psychologically incapacitated.

RULING:

• -YES. When a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage is governed by the provisions of Article 147. The term “capacitated” in the provision refers to the legal capacity of a party to contract marriage, i.e., any “male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38” of the Code.

• Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.”

MARBELLA-BOBIS v. BOBIS July 31, 2000 (G.R. No. 138509)

FACTS:

• October 21, 1985, first marriage with one Maria Dulce B. Javier. Not annulled, nullified or terminated
• January 25, 1996, second marriage with petitioner Imelda Marbella-Bobis
• Third marriage with a certain Julia Sally Hernandez
• February 25, 1998, Imelda Bobis filed bigamy
• Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license
• Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage
*After petitioner sued for bigamy, it’s just when the respondent filed a declaration of absolute nullity.

ISSUE:
Whether or not the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy

HELD:
• A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.3It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. Its two essential elements are:7
(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and
(b) the resolution of such issue determines whether or not the criminal action may proceed.

Article 384

Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared.

By Gladys Agaid-Lambayong

> Article 384 speaks of the need or requirement of the declaration of absence by the court for the absence to be effective. Also, it specifies three circumstances whereby an absence may be declared by the court:

(1) two years have elapsed without any news from the absentee;

(2) two years have elapsed since the last news about the absentee;

(3) five years have elapsed in case the absentee left a person in charge of the administration of his property

> In Reyes vs Alejandro, L-32026, January 16, 1986, the SC laid down certain rules on the declaration of absence of a person:

(a) The petition to declare a husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings;

(b) An absentee person needs to be judicially declared an absentee if he has properties which have to be taken cared of or administered by a representative appointed by the court; or if the absentee spouse is asking for separation of property; or if the absentee is the husband, his wife asking the court that the administration of all classes of property in the marriage be transferred to her;

(c) The sole purpose of the filing of the petition to declare the husband absent is to establish the absence of the husband, if left with no property, the petition should be dismissed because there is no need to declare him judicially absent.

(d) For the purpose of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse enter into second marriage because the petition to declare a husband absentee is for the sole purpose of taking necessary precautions for the administration of the estate of the absentee. For the second marriage, the law only requires:

d.1. the former spouse has been absent for four (4) consecutive years (Art 41 of the family code) at the time of the second marriage;

d.2. that the present spouse does not know that his/her former spouse to be living;

d.3. that such former spouse is generally reputed to be dead and that the spouse present so believes the same at the time of the celebration of the second marriage

Article 385

The following may ask for the declaration of absence:

(1) The spouse present;

(2) The heirs instituted in a will, who may present an authentic copy of the same;

(3) The relatives who may succeed by the law of intestacy;

(4) Those who may have the property of the absentee some right subordinated to the condition of his death;

By Gladys Agaid-Lambayong

> Article 385 enumerates who may ask for the declaration of absence of a person

Article 386

The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation.

By Gladys Agaid-Lambayong

> Article 386 speaks of the time and publication requirements for the declaration of absence before it takes effect. It requires the period of 6 months and a publication in a newspaper of general circulation.

> It also requires that before any alienation of encumbrance of the properties of the absentee can be made, there must be judicial approval, the purpose of which is to protect the rights and interests of the absentee.

> Death of the absentee ceases the administration of his/her properties since the transmission of his rights, properties and obligation is transferred to his/her heirs as called for by article 777 of the civil code.

Below is a case digest illustrating the provisions of the above-mentioned Articles in the Family Code:

Reyes vs. Alejandro

G.R. No. L-32026, January 16, 1986

Petitioner: Erlinda Reyes

Respondents: Hon. Jose P. Alejandro

Ponente: Justice Patajo

This is an appeal from an order of the Court of First Instance dismissing the petition field by the petitioner to declare the absence of her husband, Roberto Reyes.

FACTS:

On October 25, 1969, petitioner filed a petition for the declaration of the absence of her husband alleging that her husband had been absent from their conjugal dwelling since April, 1962 and had not been heard from him and his whereabouts. It was alleged that her husband left no will nor any property in his name nor any debts.

The Court of First Instance dismissed the petition on the ground that since the petitioner’s husband left no properties, there was no necessity to declare him judicially an absentee as provided in Rule 107 of the Rules of Court, which concerned with absence only with reference to the effects of property.

ISSUE:

Whether or not the Court of First Instance erred to declare that there was no point in judicially declaring the petitioner’s husband an absentee.

RULING:

NO. The Court affirmed the decision of the lower court. The Court explained that he needs to have a person judicially declared an absentee is when he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); the spouse of absentee is asking for separation of property (Article 191, Civil Code) or his wife is asking the Court that the administration of classes of property in the marriage be transferred to her (Article 196, Civil Code). In the present case, petitioner’s husband did not have leave any will nor any property in his name nor any debts. There was no property to speak of.

Article 387

An administrator of the absentee’s property shall be appointed in accordance with Article 383. (187a)

By: Meneses-Gapac, Xiennia

Article 388

The wife who is appointed as an administratrix of the husband’s property cannot alienate or encumber the husband’s property, or that of the conjugal partnership, without judicial authority. (188a)

By: Meneses-Gapac, Xiennia

Article 389

The administration shall cease in any of the following cases:

1. When the absentee appears personally or by means of an agent;

2. When the death of the absentee is proved and his testate or intestate heirs appear

3. When the third person appears, showing by a proper document that he has acquired the absentee’s property by purchase or their title.

In these cases, the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. (190)

By: Meneses-Gapac, Xiennia

In case of personal appearance of the absentee:

The administration of his properties by another would cease

If the death of the absentee is proved:

There would be opening of his succession as there would then be transmission of successional rights to his heirs.

Jones vs. Hortiguela
64 Phil 179

Facts:

Marciana married Arthur Jones. After four years of marriage, Arthur left the country and was never heard of thereafter. Marciana instituted a juridical declaration of absentee for her husband. Court declared Arthur as an absentee with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers (Art. 186, Old Civil Code). The court then issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in “El Ideal”.

Marciana then married Felix Hortiguela. Marciana Escaña had died intestate. Her widower Felix Hortiguela was appointed judicial administrator of her entire estate, and Angelita Jones, her daughter by her first marriage, were declared her only heirs.

Angelita filed a motion alleging that she was the only heir of Marciana and that the marriage between Mariana and Felix is null and void. Since the said marriage is invalid, Felix was not entitled to share in usufruct.

Issue:

Whether or not marriage of Mariana and Felix is null and void.

Ruling:

No. In accordance with the Civil Code, the absence of Marciana Escaño’s former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For the purpose if the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absentee made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee.

For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage.

Article 390

After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n)

By: Perolina, Nil Jay

-The law lays down the presumption of death of a person after an absence of seven (7) years, provided that it is unknown whether he is still alive or not.

-The law says that the absent spouse shall be presumed dead for “all purposes” except succession. It is only after an absence of ten (10) years that his succession will be opened. In that case, his heirs can now commence an intestate proceeding, for purposes of dividing or distributing the estate of the absentee, for by then, the right of inheritance shall have already become choate, for under Article 777 if the Civil Code, it is from the moment of death that there shall be transmission of rights, properties, or even obligations from the decedent to the heirs because of the presumptive death of the absentee. There is no physical death, but there is only presumptive death under the situation.

May a person be declared presumptively dead?

No, as a general rule, because:

a. it would be useless to make such declaration since it is already declared by law

b. the judgment would never really become final, since the person involved may actually turnout to be still alive.

Amplifying further such ruling in Lukban v Republic, the Supreme Court said in Nicolas v. Zsatrow, 46 O.G. 1st Supp. 243, that the philosophy behind the ruling in Lukban v Republic is that a judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only.It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or subject matter involved in case, or upon a competent court has to pass.It is, therefore, clear that judicial declaration tha a person is presumptively dead because he had been unheard fron in seven year, being a presumption juris tantum only, subject to contrary to proof, cannot be final.

Article 391

The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

By: Perolina, Nil Jay

The reason why a person is presumed dead under these circumstances provided in Article 391 is the great possibility that the person is dead after four years from the time of the loss of the vessel or other catastrophe.

Rules:

1. The period of four (4) years in Article 391, NCC has been reduced to two (2) years under Article 41 of the Family Code, for purposes of remarriage, but te present spouse has to go to court in summary proceeding for purposes of having the absent spouse declared presumptively dead so that he/she can contract a subsequent marriage. If the present spouse does not go to court for that purpose and contracts a subsequent marriage, the same is void and bigamous. He can be convicted of the crime of bigamy (Manuel v People, GR No. 165842, November 29, 2005; Republic v CA, etal, GR No. 159614, December 9, 2005)

2. Article 391, NCC governs extraordinary absence. From the language of the law, the period of four (4) years shall be reckoned at the beginning of the period pursuant to that decision of the Court of Appeals in Judge Advocate General v Gonzales, etal 48 OG 12, p. 5329.

3. The Supreme Court said that, Article 391, NCC, relating to the presumption of death of persons aboard a vessel lost during a sea voyage, applies to cases wherein the vessel cannot be located nor accounted for, or when its fate is unknown or there is no trace of its whereabouts, inasmuch as the word “lost” used in referring to a vessel must be given the same meaning as “missing” employed in connection with an aeroplane, the persons taking both means of conveyance being the object of the rule expressed in the same sentence. Where, as in the case at bar, none of the foregoing conditions appear to exist, the rule does not apply. Instead, the rule on preponderance of evidence applies to establish the fact of death. ( Victory Shipping Lines, Inc., WCC, 106 Phil 550; Madrigal Shipping Co., Inc. v Baens del Rosario, et al., L-13130, October 31, 1959).

4. If the absentee appear or his presence is proved, he can recover his properties and the price of any properties that may have been alienated or the properties acquired therewith. He cannot, however, claim any fruits or rents.

-The reason is obvious because the possessor is presumed to be in good faith, and if that is so, he is entitled to the fruits of the propertis in his possession.

-Vessels/Aeroplanes- include watercraft and all aircrafts respectively. But the loss of the vessel must be during a sea voyage. This will include not only voyages in the open sea, but also passage along the mouths of rivers, canals in the course of such voyage. However, trips which are only in inland waters are not included (8 Von Tuhr 26).

-Other circumstances where there is danger of death would include such events as earthquakes, fires, explosions, inundations, dangerous expeditions, cave-ins of mines, volcanic eruptions, landslides, etc.

- It has, however, been said that the more logical view seems to be that the period should be computed from the last day of danger; in case of expeditions and similar adventures of which nothing is heard of after it has started, the date when it should have been computed, if favorably concluded, is to be taken into account. (2 Von Tuhr 27).

Article 392

If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194)

By: Perolina, Nil Jay

The law provides for the effect of reapperance or proof of existence of the person presumed dead. Let us say that a person was presumed dead and his estate was distributed in accordance with law or his will, but reappears, then, he can recover the properties in the condition they may be found, or the price thereof,if they have been sold or alienated. But he cannot claim the fruits or rents.

The reason for this is that the distributees and heirs are in good faith. Under Article 544 of the Civil Code, a possessor in good faith is entitled to receive the fruits of the thing in his possession. But the moment he reappears, the possessor would no longer be entitled to receive the fruits, as they would then redound to the benefit of the owner. There would also be interruption of the possession in good faith.

In the Family Code, when the present spouse contracts a subsequent marriage after judicial declaration of presumptive death of the absentee spouse, and there is an affidavit of reapperance that is registered by an interested person in the proper civil registry, with notice to the parties of the second marriage, the latter shall be considered as automatically terminated, without prejudice to the right of the present spouse to question such reappearance.

It is believed that if the absent spouse physically reappears, the subsequent marriage would still be terminated. This is so because of the fact that if constructive reapperance by the way of the registration of the affidavit of reapperance is enough, then with more reason physical reapperance should terminate the subsequent marriage. The added reason is that, in case an affidavit of reapperance is registered, the present spouse can question the fact of reapperance.

Case:

G.R. No. 165842

Manuel v People of the Philippines

November 29, 2005

Callejo, Sr, J.

Facts:

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal. He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina's resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tina's parents, and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61. It appeared in their marriage contract that Eduardo was 'single.

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her. Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract. She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a 'love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was 'single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years.

Issue:

Whether or not the petitioner is guilty of bigamy.

Ruling:

Yes,the petitioner is guilty of bigamy.Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaa's presumptive death as the absent spouse.

The Court also ruled that the petitioner's collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages.

Article 393

Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. (195)

By: Pomintel-Acuno, Florabel

Ø This law has necessary connections to the law on succession, but it requires that there be proof of the existence of the absentee at the time his existence was necessary, otherwise, there would be no transmission of rights.

Illustration:

In 1960, Jose disappeared. In 1965, Hector died, leaving a will where he instituted Jose, who himself is married and with a child name Ariel. In order that Ariel may rightfully claim that portion of the estate of Hector, he must prove the existence of Jose at the time of Hector’s death.

If Jose was already dead at the time of Hector’s death, then Jose never acquired that portion of the estate to which he was instituted.

Consequently, Ariel cannot also claim it since Jose never transmitted it to Ariel.

The situation is similar to Article 1025 of the Civil Code which requires that the heir must be alive at the time of death of decedent.

Article 394

Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (196a)

By: Pomintel-Acuno, Florabel

Article 395

The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. (197)

By: Pomintel-Acuno, Florabel

Ø The law has something to do with the rules on succession, to wit

Article 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (n)

Article 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (984)

Article 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger.

Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (985)

Article 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986)

Ø It says that if an absentee is called upon to inherit, his share shall accrue to his co-heirs, as a rule

Illustration:

A and B are married. They have three (3) children named X,Y, and Z. Upon the death of A, X, Y, and Z called upon to succeed A, but X is an absentee. His share of the estate of his father shall accrue too Y and Z.

· Art. 1015 of the NCC provides that accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated tot that of his co-heirsm co-devisees or co-legatees.

· The right of accretion shall:

1) That two or more persons be called to the same inheritance or to the same portion thereof, pro indiviso

2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it, Art. 1016 of the NCC.

· The rule cited in the example does not apply if X has his own heirs or representatives. Hence, if X in the problem above is married to M and they have children N and O, then, his share shall accrue to his heirs by right of representation. The heirs of X can commence an action to recover the share of X within the prescriptive period of 10 years.

· Suppose that Y and Z obtained a title to the said share that accrued to them and sold the same to a buyer in good faith and for value, then the children of X cannot recover anymore because of the protection afforded to a buyer in good faith and for value by the Torrens System

Art. 396. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. (198)

Ø The law grants the right to whoever entered upon the inheritance of an absentee, like the right to appropriate the fruits until the absentee shall have reappeared or until the proper actions shall have been brought by the heirs or representatives.

Illustration:

A and B are married. They have children X, Y, and Z. X is living in the USA with two childrens, but unknown to Y and Z. A died, hence, the heirs were called upon to inherit, but since X is an absentee, there is no knowledge of such heirs; Y and Z entered into the inheritance of X by right of accretion.

They can continue to receive the fruits of such property for as long as the heirs of X have not filed an action to recover the share of their father. They are in good faith.

Article 407

Acts, events and judicial decrees concerning the civil status of person shall be recorder in the civil register.

By: Rosales, Gayle Marion R.

Article 408

The following shall be entered in the civil register:

1. Births;

2. Marriages;

3. Deaths;

4. Legal separation;

5. Annulments of marriage;

6. Judgments declaring void from the beginning;

7. Legitimations;

8. Adoptions;

9. Acknowledgment of natural children;

10. Naturalization;

11. Lost, or

12. Recovery of citizenship;

13. Civil interdiction;

14. Judicial determination of filiation;

15. Voluntary emancipation of a minor; and

16. Changes of name.

By: Rosales, Gayle Marion R.

Article 409

In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, shall be the jury of the clerk of court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning.

By: Rosales, Gayle Marion R.

[case from Art 412]

G.R. No. L-32181 March 5, 1986

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.

LEONOR VALENCIA, as Natural mother and guardian of her minor children, BERNARDO GO and JESSICA GO; and THE HON. AGAPITO HONTANOSAS, Judge of the COURT OF FIRST INSTANCE OF CEBU, Branch XI.

GUTIERREZ, JR., J.:

FACTS:

Respondent Leonor Valencia, for and in behalf of her minor children filed with the Court of First Instance of Cebu a petition for the cancellation and/or correction of entries of birth of Bernardo Go and Jessica Go in the Civil Registry of the City of Cebu. The case was docketed as Special Proceedings No. 3043-R.

The Solicitor General filed an opposition to the petition alleging that the petition for correction of entry in the Civil Registry pursuant to Article 412 of the New Civil Code of the Philippines in relation to Rule 108 of the Revised Rules of Court, contemplates a summary proceeding and correction of mere clerical errors, those harmless and innocuous changes such as the correction of a name that is merely mispelled, occupation of parents, etc., and not changes or corrections involving civil status, nationality, or citizenship which are substantial and controversial.

The Revised Rules of Court and that they have caused reasonable notice to be given to the

persons named in the petition and have also caused the order for the hearings of their petition to

be published for three (3) consecutive weeks in a newspaper of general circulation in the province.

Subsequently, the Local Civil Registrar of Cebu City filed a motion to dismiss on the ground that

since the petition seeks to change the nationality or citizenship of Bernardo Go and Jessica Go

from "Chinese" to "Filipino" and their status from "Legitimate" to Illegitimate", and changing

also the status of the mother from "married" to "single" the corrections sought are not merely

clerical but substantial, involving as they do the citizenship and status of the petitioning minors

and the status of their mother.

ISSUES:

Whether or not the proper suit or appropriate action was filed by the respondent

RULING:

The Court held in the affirmative of the opinion that the petition filed by the respondent in the lower court by way of a special proceeding for cancellation and/or correction of entries in the civil register with the requisite notice and publication and the recorded proceedings that actually took place thereafter could very well be regarded as that proper suit or appropriate action.

In the instant case, a petition for cancellation and/or correction of entries of birth of Bernardo Go and Jessica Go in the Civil Registry of the City of Cebu was filed by respondent Leonor Valencia on January 27, 1970, and pursuant to the order of the trial court dated February 4, 1970, the said petition was published once a week for three (3) consecutive weeks in the, Cebu Advocate, a newspaper of general circulation in the City of Cebu. Notice thereof was duly served on the Solicitor General, the Local Civil Registrar and Go Eng.

The order likewise set the case for hearing and directed the local civil registrar and the other respondents or any person claiming any interest under the entries whose corrections were sought, to file their opposition to the said petition. An opposition to the petition was consequently filed by the Republic on February 26, 1970. Thereafter a full blown trial followed with respondent Leonor Valencia testifying and presenting her documentary evidence in support of her petition. The Republic on the other hand cross-examined respondent Leonor Valencia.

Local Civil Registrar (LRC)

• Civil registry was instituted in Act 3753 approved by the Philippine Legislatures on November 26, 1930

• Civil Registrar – created under Section 3 of Act 3753 which provides that every municipality and cities shall have local civil registrars

• Duties of local civil registrar are under Section 4 of Act 3753 – the safekeeping and preservation of civil register books which shall have proper entries of birth and death register, marriage register, legitimation, acknowledgement, adoption change of name and naturalization register

ARTICLE 410

The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. (n)

By: Valbuena, Dona M.

prima facie adjective (as defined by Merriam Webster Dictionary)

1: true, valid, or sufficient at first impression : APPARENT

2: SELF-EVIDENT

3: legally sufficient to establish a fact or a case unless disproved

prima facie evidence

ARTICLE 411

Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. However, the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. (n)

By: Valbuena, Dona M.

ARTICLE 412. No entry in a civil register shall be changed or corrected, without a judicial order. (n)

The provision of Article 412 of the Civil Code was amended by

1. REPUBLIC ACT NO. 9048 (Feb. 8, 2001)

“An Act Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct A Clerical Or Typographical Error In An Entry And/Or Change Of First Name Or Nickname In The Civil Register Without Need Of A Judicial Order, Amending For This Purpose Articles 376 And 412 Of The Civil Code Of The Philippines.”

2. REPUBLIC ACT NO. 10172 (August 15, 2011)

“An Act Further Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct Clerical Or Typographical Errors In The Day And Month In The Date Of Birth Or Sex Of A Person Appearing In The Civil Register Without Need Of A Judicial Order, Amending For This Purpose Republic Act Numbered Ninety Forty-Eight”

The proceeding laws authorize the local civil registrar to correct only clerical or typographical errors. Clerical or typographical error have been defined as mistake committed in the performance of clerical work in writing, copying, transcribing or typing of an entry in the civil register that is harmless and innocuous such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding and can be corrected or changed only by reference to other existing record or record.

No correction must involve the change of nationality, age or status of the petitioner.

Substantial versus clerical error

CLERICAL ERROR- mistake committed in the performance of clerical work in writing, copying, transcribing or typing of an entry in the civil register that is harmless and innocuous such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding and can be corrected or changed only by reference to other existing record or record.

SUBTANTIAL ERROR- Substantial or contentious alterations and may be allowed only through adversarial proceedings and all interested parties are impleaded and due process is properly observed

Procedure in the Correction of Clerical Error

under RA 9048 and its IRR (First name or nickname)

Who may avail of the law: Any person having direct and personal interest in the correction of a clerical or typographical errors and/or change of name or nickname in the civil register

What are the grounds?

1. The petitioner finds the first or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

2. The new name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; or

3. The change will avoid confusion (Section 4, RA 9048)

Where to file petition for correction of entries involving names:

Local Civil Registrar or to the LRC where the person is now domicile or with the Philippine Consulate in a country where the Filipino citizen is now domicile

How many times a person may avail his right to change his first name: Once

What to file: A verified petition

An illustration case to help us understand the concept of Article 412 of the Family Code/NCC

G.R. No. L-32181 March 5, 1986

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.

LEONOR VALENCIA, as Natural mother and guardian of her minor children, BERNARDO GO and JESSICA GO; and THE HON. AGAPITO HONTANOSAS, Judge of the COURT OF FIRST INSTANCE OF CEBU

Ponente – Justice HUGO GUTIERREZ, JR.,

FACTS OF THE CASE

The Solicitor General filed an opposition to the petition alleging that the petition for correction of entry in the Civil Registry pursuant to Article 412 of the New Civil Code of the Philippines in relation to Rule 108 of the Revised Rules of Court, contemplates a summary proceeding and correction of mere clerical errors, those harmless and innocuous changes such as the correction of a name that is merely misspelled, occupation of parents, etc., and not changes or corrections involving civil status, nationality, or citizenship which are substantial and controversial.

Finding the petition to be sufficient in form and substance, the trial court issued an order directing the publication of the petition and the date of hearing thereof in the Cebu Advocate, a newspaper of general circulation in the city and province of Cebu, once a week for three (3) consecutive weeks, and notice thereof, duly served on the Solicitor General, the Local Civil Registrar of Cebu City and Go Eng.

Respondent Leonor Valencia, filed her reply to the opposition wherein she admitted that the present petition seeks substantial changes involving the civil status and nationality or citizenship of respondents, but alleged that substantial changes in the civil registry records involving the civil status of parents, their nationality or citizenship may be allowed if- (1) the proper suit is filed, and (2) evidence is submitted, either to support the allegations of the petition or to disprove the same; that respondents have complied with these requirements by filing the present special proceeding for cancellation or correction of entries in the civil registry pursuant to Rule 108 of the Revised Rules of Court and that they have caused reasonable notice to be given to the persons named in the petition and have also caused the order for the hearings of their petition to be published for three (3) consecutive weeks in a newspaper of general circulation in the province.

Subsequently, the Local Civil Registrar of Cebu City filed a motion to dismiss on the ground that since the petition seeks to change the nationality or citizenship of Bernardo Go and Jessica Go from "Chinese" to "Filipino" and their status from "Legitimate" to Illegitimate", and changing also the status of the mother from "married" to "single" the corrections sought are not merely clerical but substantial, involving as they do the citizenship and status of the petitioning minors and the status of their mother.

The lower court denied the motion to dismiss.

After trial on the merits during which the parties were given all the opportunity to present their evidence and refute the evidence and arguments of the other side, the lower court rendered a decision the dispositive portion of which reads:

WHEREFORE, Judgment is hereby rendered granting the instant petition and ordering the Local Civil Registrar of the City of Cebu to make the necessary cancellation and/or correction on the following entries:

A. In the Record of Birth of BERNARDO GO, to register said Bernardo Go as 'FILIPINO' instead of 'CHINESE'; as 'ILLEGITIMATE instead of LEGITIMATE', and his father's (GO ENG) and mother's (LEONOR VALENCIA) civil status as 'SINGLE instead of MARRIED';

B. In the Record of Birth of JESSICA GO to register said Jessica Go as 'FILIPINO' instead of 'CHINESE'; as 'ILLEGITIMATE' instead of 'LEGITIMATE' and father's (GO ENG) and mother's (LEONOR VALENCIA) civil status as 'SINGLE instead of MARRIED': and

C. In both Records of Birth of Bernardo Go and Jessica Go to change the entry on Petitioner's Citizenship from 'CHINESE to FILIPINO'.

Pursuant to Section 6, Rule 103 of the Rules of Court, the Clerk of Court is hereby directed to furnish a copy of this decision to the Office of the Local Civil Registrar of Cebu City, who shall forthwith enter the cancellation and/'or correction of entries of birth of Bernardo Go and Jessica Go in the Civil Registry as adverted to above.

From the foregoing decision, oppositor-appellant Republic of the Philippines appealed to us by way of this petition for review on certiorari.

The petitioner Republic of the Philippines raises a lone error for the grant of this petition, stating that:

THE LOWER COURT ERRED IN ORDERING THE CORRECTION OF THE PETITIONER'S CITIZENSHIP AND CIVIL STATUS AND THE CITIZENSHIP AND CIVIL STATUS OF HER MINOR CHILDREN BERNARDO GO AND JESSICA GO.

ISSUE:

Whether or not the proper suit or appropriate action was filed by the respondent?

HELD:

The Court held in the affirmative. The petition filed by the respondent in the lower court by way of a special proceeding for cancellation and/or correction of entries in the civil register with the requisite notice and publication and the recorded proceedings that actually took place thereafter could very well be regarded as that proper suit or appropriate action. It is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature. However, it is also true that a right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used.

The Court adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.

The Court denied the Solicitor General’s motion to dismiss and the decision of the lower court was affirmed.

ARTICLE 413

All other matters pertaining to the registration of civil status shall be governed by special laws. (n)

By: Calano, Ernest Ryan R.

This law makes reference to Act No. 3573, “An Act Establishing a Civil Register.”

To sum it up, this act is composed of twenty-two (22) sections wherein civil register, local civil registrars, civil register books, Death certificate and register and the other pertinent matters as pertaining to the civil register.

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When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercises their principal functions. (41a)By: Austria, Honeylee B.

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Chapter 2
Human Relations

When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercises their principal functions. (41a)
By: Austria, Honeylee B.