civil code provisions reviewer

7/29/2019 Civil Code Provisions Reviewer

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Civil Code Provisions Reviewer

General Provisions

- Art. 2. Laws shall take effect after fifteen days followingthe completion of their publication in the OfficialGazette, unless it is otherwise provided. This Codeshall take effect one year after such publication. (1a)

o Unless otherwise provided refers to the dateof effectivity, not the publicationrequirement.

- Art. 3. Ignorance of the law excuses no one fromcompliance therewith. (2)

- Art. 4. Laws shall have no retroactive effect, unless thecontrary is provided. (3)

o Changes that would prejudice or impair vested oracquired rights from old legislation shall have noretroactive effect. (Art. 2252)

o Rights declared for the first time in the Code shallretroact even to acts or events which happen underold legislation. Acts and rights existing but notexercised before the effectivity of this Code shallremain in full force in conformity of the old laws, butshall be regulated by this Code and the Rules ofCourt. If the right or action under the old law waspending at the effectivity of this Code, and theprocedure is different, the parties concerned may

choose which method/procedure to apply. (Art. 2253& Art. 2258)o No vested or acquired rights can arise from acts or

omissions against the law or the rights of others.(Art. 2254)

o Former laws shall regulate acts and contracts with acondition or period executed before the effectivity ofthe Code even if the condition or period is stillpending at the time of the Codes enactment. (Art.2255)

o Acts and contracts under the regime of the old laws,if they are valid in accordance therewith, shallcontinue to be fully operative, with limitationsestablished in this Code. But if they are revoked ormodified under this Code, they are subject to these

provisions. (Art. 2256)o Doctrine of repeal for criminal liability and penalties

(Art. 2257)

The right to institute civil action against aperson acquitted in a criminal prosecutionor civil action for damages in a person in acase of defamation, fraud, or physicalinjuries (Arts. 29 & 33) shall retroact topending cases. (Art. 2267)

o Capacity of a married woman to execute actsand contracts and voluntary recognition of anatural child are governed by this Code, andretroacts to the date of her marriage or thedate of birth. (Art. 2259 & 2260)

Status and rights of natural and illegitimatechildren referred to in FC 54 and 176,respectively, shall be acquired by children

born before the effectivity of this Code. (Art.2264)

o Exemption prescribed in FC 205 retroacts to anysupport, pension, or gratuity existing before theeffectivity of this Code. (Art. 2261)

o Guardians of the property of minors appointedbefore the effectivity of this Code shall continue to besuch despite the provisions of FC 225. (Art. 2262)

o The rights of a person who die with or without a willbefore the effectivity of this Code shall be governedby the old Code, previous laws, and Rules of Courtbut if the death is under the new Code, then theinheritance shall be adjudicated and distributedaccording to the new Code and the Rules of Court.Testamentary provisions shall be carried out as faras permitted by this Code. (Art. 2263)


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o The right of retention of real or personal propertyarising after this Code becomes effective, includingthings which came into the creditors possession

before the effectivity. (Art. 2265)o Certain procedural provisions are retroactive. (Art.

2266)o Suits between members of the same family pending

at the time of effectivity of this Code are suspendedunder terms the court may determine in order that acompromise may be sought, or that a reconciliationmay be effected, for legal separation proceedings.(Art. 2268)

o Principles upon which the preceding articles arebased shall be analogously applied to cases notspecifically regulated by them. (Art. 2269)

- Art. 5. Acts executed against the provisions of mandatory orprohibitory laws shall be void, except when the law itselfauthorizes their validity. (4a)

o Prohibitive laws concerning persons, their acts orproperty, and those concerning public order, policy,and good customs shall not be renderedineffective by laws, judgments promulgated,determinations, or conventions agreed uponin a foreign country. (Art. 17 par. 3)

- Art. 6. Rights may be waived, unless the waiver iscontrary to law, public order, public policy, morals,or good customs, or prejudicial to a third person

with a right recognized by law. (4a)

o The person waiving the right must understandthe right being waived, the consequences ofwaiving said right, and recognize the fact thathe actually possesses the right he intends to

waive.o No compromise upon civil status of persons,

validity of a marriage or legal separation,ground for legal separation, future support,

jurisdiction of courts, or future legitime shallbe valid. (Art. 2035)

- Art. 7. Laws are repealed only by subsequent ones, andtheir violation or non-observance shall not beexcused by disuse, or custom or practice to thecontrary.

When the courts declare a law to be inconsistent with theConstitution, the former shall be void and the latter shallgovern.

Administrative or executive acts, orders andregulations shall be valid only when they are notcontrary to the laws or the Constitution. (5a)

o All existing laws, decrees, executive orders,proclamations, letters of instruction, and otherexecutive issuances not inconsistent with the

Constitution shall remain operative until amended,repealed, or revoked. (Art. XVIII, Sec. 3 of the 1987Constitution)

- Art. 8. Judicial decisions applying or interpreting thelaws or the Constitution shall form a part of thelegal system of the Philippines. (n)

- Art. 9. No judge or court shall decline to renderjudgment by reason of the silence, obscurity orinsufficiency of the laws. (6)

o Whenever a court has knowledge of any act which itmay deem proper to repress and which is notpunishable by law, it shall render the proper

decision, and shall report to the Chief Executive,through the Department of Justice, the reasons

which induce the court to believe that said act shouldbe made the subject of legislation. The court shallalso submit to the Chief Executive, through theDepartment of Justice, such statement as may bedeemed proper, without suspending the execution ofthe sentence, when a strict enforcement of theprovisions of this Code would result in theimposition of a clearly excessive penalty, taking into


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consideration the degree of malice and the injurycaused by the offense. (RPC 5)

- Art. 10. In case of doubt in the interpretation or applicationof laws, it is presumed that the lawmaking bodyintended right and justice to prevail. (n)

- Art. 11. Customs which are contrary to law, public order orpublic policy shall not be countenanced. (n)- Art. 12. A custom must be proved as a fact, according to the

rules of evidence. (n)o Congress may provide for applicability of

customary laws governing property rights orrelations in determining the ownership and extent ofancestral domain. (Art. XII, Sec. 5, par. 2, 1987Constitution)

o A court may take judicial notice of matters which areof public knowledge, are capable ofunquestionable demonstration, or ought to beknown to judges because of their judicial functions.In a trial, the court may take judicial notice ofmatters upon its own initiative or on request of aparty, allowing the parties to be heard thereon. Afterthe trial and before judgment or on appeal, theproper court may also take judicial notice in thissame way on any matter and allow the parties to beheard thereon if the matter is decisive of a materialissue in the case. (Rules of Court 129, Secs. 2 & 3)

- Art. 13. When the laws speak of years, months, days ornights, 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 sunsetto sunrise.

If months are designated by their name, they shall becomputed by the number of days which theyrespectively have.

In computing a period, the first day shall be excluded,and the last day included. (7a)

o If the last day of the period falls on a weekend or alegal holiday in the place where the court sits, thetime shall not run until the next working day.Should an act be done which effectively interruptsthe running of the period, the allowable period after

such interruption shall start to run on the dayafter notice of the cessation of theinterruptions cause. The day of the act thatcaused the interruption shall be excluded inthe computation of the period. (Rules of Court22)

- Art. 14. Penal laws and those of public security and safetyshall be obligatory upon all who live or sojourn in thePhilippine territory, subject to the principles of publicinternational law and to treaty stipulations. (8a)

- Art. 15. Laws relating to family rights and duties, or to thestatus, condition and legal capacity of persons are bindingupon citizens of the Philippines, even though livingabroad. (9a)

o Where a marriage between a Filipino citizen and aforeigner is validly celebrated and a valid divorce isobtained abroad by the alien spouse capacitatinghim or her to remarry, the Filipino spouse shalllikewise have the capacity to remarry underPhilippine law. (FC 26, par. 2)

- Art. 16. Real property as well as personal property issubject to the law of the country where it is stipulated.

However, intestate and testamentary successions, both withrespect to the order of succession and to the amount ofsuccessional rights and to the intrinsic validity oftestamentary provisions, shall be regulated by the nationallaw of the person whose succession is under consideration,

whatever may be the nature of the property and regardless ofthe country wherein said property may be found. (10a)


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- Art. 17. The forms and solemnities of contracts, wills, andother public instruments shall be governed by the laws ofthe country in which they are executed.

When the acts referred to are executed before the

diplomatic or consular officials of the Republic ofthe Philippines in a foreign country, the solemnitiesestablished by Philippine laws shall be observed intheir execution.

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

- Art. 18. In matters which are governed by the Code ofCommerce and special laws, their deficiency shall besupplied by the provisions of this Code.(16a)

Civil Personality

- Capacity (Art. 37)o Juridical/legal fitness to be the subject of

legal relations; inherent in every natural personand is lost only through death. Everyone ispresumed to have juridical capacity.

o Capacity to act power to do acts with legaleffect; acquired and may be lost- Restrictions on the Capacity to Act

Restriction Effects

Age

- Must have aguardian, whetherappointed by thecourt after a petition,or naturally by theparents exercising

joint guardianshipwithout need of acourt appointment(A.M. NO. 03-02-05-SC)

-

Can only vote uponreaching the age of18 (Art. V, Sec. 1 ofthe 1987Constitution)

- Cant marry until theage of 18 (FC 5)

- Cannot give consentto a contract untilthe age of 18 oremancipated (Art.1327); contractsentered into byminors are voidable(Art. 1390, 1), andthe minor is obligedto make restitutionsas far as he has

benefitted from thecontract. (Art. 1399)

- No criminal liabilityif under 15 years old,over 15 and under 18needs determinationof discernment

Insanity/imbecility

- Cannot marry;marriage is voidableunless person thenfreely cohabits withthe other spouseafter coming toreason (FC 45, 2)

- Also cannot giveconsent to contracts,

but the contracts arevalid if entered into


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during a lucidinterval (Art. 1327, 2& 1328)

- Exempted fromcriminal liability

Deaf-mutism

-

Also cannot giveconsent to contractsIF they do not knowhow to write (Art.1327, 2)

- A deaf testator mustread the will or havetwo other personsread it to him (Art.807), but he cannot

be a witness to a will(Art. 820)

Prodigality- Considered

incompetent (Rulesof Court 92, Sec. 2)

Civil Interdiction

- No rights to parentalauthority,guardianship,marital authority,right to manage ordispose of hisproperty (RPC 34)

Family Relations (FC 150)- Husband and wife

- Parents and children- Ascendants and

descendants- Full-blood (same

father andmother)/half-blood(only one commonparent) (Art. 967)

siblings

- Suits betweenmembers of thesame family cannotprosper unless it ismade manifest that acompromise wasearnestly sought, butfailed (FC 151)

- Husband and wifecannot sell propertyto each other except

when a separation ofproperty was agreed

upon in the marriagesettlements, or

whether there hasbeen a judicialseparation of

property (Art. 1490)- Each generationforms a degree, aseries of degreesforms a line, eitherdirect (descendingor ascending) orcollateral (from acommon ancestor).

Ascent is made tothe commonancestor and thendescent is made tothe person with

whom thecomputation is to bemade. (Arts. 963-966)

Alienage- Art. IV, 1987

ConstitutionAbsence - NCC 381-396

Insolvency & Trusteeship- NCC 1381, 1491,

2236

Gender

- The State recognizesthe role of women innation-building, andshall ensure thefundamentalequality before thelaw of women andmen (Art. II, Sec. 14of the 1987Constitutition)


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- Natural Persons (Arts. 40-43)o Birth determines personality. (Art. 40)

The State shall equally protect the life of themother and the life of the unborn fromconception. (Art. II, Sec. 12 of the 1987

Constitution) Children conceived or born during themarriage of the parents are legitimate.Children conceived via artificialinsemination of the wife with the sperm ofthe husband or that of a donor or both arealso legitimate provided that thehusband and the wife authorized orratified such insemination in a

written instrument executed andsigned by them before the birth of thechild, which shall be recorded in the civilregistry together with the childs birthcertificate. (FC 164)

o Death extinguishes personality. (Art. 42) The effect of death upon the rights and

obligations of the deceased is determined bylaw, contract, and will. (Art. 42)

o An unborn child shall be considered born for allpurposes that are favorable to it, provided it isalive at the time it is completely delivered fromthe mothers womb OR lives past 24 hoursfrom complete delivery if it had an intra-uterine life of less than seven months(premature). (Art. 40 & 41)

Exact time is apparently very particular.o In cases of doubt as to who died first between two or

more persons who are called to succeed each other,the burden of proof lies with the one whoalleges the prior death. (Art. 43)

o In the absence of proof, it is presumed thatboth died at the same time and there shall beno transmission of rights. (Art. 43)

When two persons perish at the same time,and it is not shown who died first, thesurvivorship is determined from the

probabilities resulting from the strength andage of the sexes, governed by the followingrules:

If both were under 15 years old, theolder is deemed to have survived

If both were above 60 years old, theyounger is deemed to have survived

If one is under 15 and the other over60, the former is deemed to havesurvived

If both be over 15 and under 60 andthe sex is different, the male isdeemed to have survived; if the sexis the same, then the older

If one be under 15 or over 60, andthe other between those ages, thelatter is deemed to have survived

(Rules of Court 131, Sec. 3, jj)- Juridical Persons (Arts. 44-47)o The following are juridical persons (Art. 44):

State and political subdivisions Corporations, institutions, and entities for

public (created by law) or privateinterestor purpose.

Corporation artificial beingcreated by operation of law, havingthe right of succession and thepowers, attributes, and propertiesexpressly authorized by law or

incident to its existence. (BP 68,Sec. 2)

Corporations created byspecial laws or charters shall

be governed primarily by theprovisions of the special law orcharter creating/applicable to them,supplemented by the provisions ofthe Corporation Code as far as theyare applicable. (BP 68, Sec. 4)


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The SEC may reject the articles ofincorporation or disapprove anyamendment on the followinggrounds:

o Articles of incorporation arenot in accordance with theform prescribed;

o Purpose of the corporationis unconstitutional, illegal,immoral, or contrary togovernment policy;

o Treasurers Affidavitconcerning the amount ofcapital stock subscribedand/or paid is false;

o That the percentage ofownership of the capitalstock to be owned byFilipino citizens do notcomply with the provisionsof the Constitution. (BP 68,Sec. 17)

Banks, banking and quasi-bankinginstitutions, building and loanassociations, trust companies andother financial intermediaries,insurance companies, publicutilities, educational institutions,and other corporations governed byspecial laws must have a favorable

recommendation of the appropriategovernment agency before they can

be approved for incorporation. (BP68, Sec. 17)

A partnership is where two ormore persons enter a contract,

binding themselves to contributemoney, property, or industry to acommon fund with the intention ofdividing the profits among

themselves or for the exercise of aprofession. The partnership has a

juridical personality separate anddistinct from that of each of thepartners. (Art. 1767 & 1768)

Public corporations juridicalpersonality begins as soon as theyhave been constituted according tolaw.

Private corporations have a juridicalpersonalityseparate and distinctfrom that of each shareholder,partner or member.

o Juridical persons mentioned are governed by thelaws creating or recognizing them. (Art. 45)

Private corporations are regulated by laws ofgeneral application on the subject, whilepartnerships and associations are governed

by provisions concerning partnerships.(Art. 45)

o Juridical persons may acquire and possess propertyof all kinds as well as incur obligations and bringcivil or criminal actions, in conformity with the lawsand regulations of their organization. (Art. 46)

o Upon dissolution of corporations, institutions, andother entities for public interest, their propertiesand other assets shall be disposed of in pursuance oflaw or the charter creating them. (Art. 47)

If nothing has been specified on this point,the property and other assets shall be

applied to similar purposes for the benefitof the region, province, city, ormunicipality which principally

benefitted from the existence of thatinstitution. (Art. 47)

Citizenship

- Art. 48 is amended by Art. IV of the 1987Constitution.

- Domicile is the place of their habitual residence. (Art. 50)


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o The husband and wife shall fix the familydomicile, and the court shall decide in case ofdisagreement. One spouse may be exempted fromliving with the other if the latter should live abroador there are other valid and compelling reasons forsuch an exemption, EXCEPT when it is notcompatible with the solidarity of the family. (FC 69)

A spouse is deemed to have abandoned theother when he or she has left the conjugaldwelling without any intention of returning,

which is determined when the spouse hasleft for or not given information as to his orher whereabouts for a period of at least threemonths. (FC 101, par. 3)

o For juridical persons, the domicile is the place wherethey exercise their principal functions or

where their legal representation isestablished IF the domicile is not fixed by any

law or provision. (Art. 51)o Aresidence is merely a place a person stays for a

certain purpose. After fulfilling that particularpurpose, that person then returns to his or herdomicile. (Marcos vs. COMELEC)

Marriage

- Nature (FC Art. 1) Special contract of permanent unionbetween a man and a woman entered into in accordance withlaw for the establishment of conjugal and family life. It is thefoundation of the family and an inviolable social institution.

o Its nature, consequences, and incidents are governedby law and not subject to stipulation, except thatmarriage settlements may fix the property relationsduring the marriage within the limits provided bythis Code.

- Breach of promise to marryo Every person must, in the exercise of his rights and

in the performance of his duties, act with justice,give everyone his due, and observe honesty and goodfaith. (NCC 19)

o Every person who, contrary to law, wilfully ornegligent causes damage to another, shall indemnifythe latter for the same. (Art. 20)

o Any person who wilfully causes loss or injury toanother in a manner that is contrary to morals, goodcustoms, or public policy shall compensate the latterfor the damage. (Art. 21)

An agreement made in consideration ofmarriage, other than a mutual promise tomarry, is not an enforceable contract unlessthe agreement is in writin and subscribed bythe party charged or by his agent. Evidenceof the agreement cannot be received withoutthe writing of its contents. (NCC 1403, 2, c)

Any person who has entered into a contractto marry but subsequently refuses withoutreasonable ground to marry the other party

who is willing to perform the same shall pay

the latter the expenses incurred for thepreparation of the marriage and suchdamages as determined by the court. (Art.22, Muslim Code)

- Requisites (Arts. 2-4)o The absence of essential or formal requisites

shall void the marriage ab initio except in thesituation provided in Art. 35(2). (see Authority ofSolemnizing Officer)

o A defect in consent existing at any time in themarriage shall render the marriage voidable. (Art.45, see Consent)

o An irregularity in the formal requisites shall notaffect the validity of the marriage but the party/iesresponsible for irregularity shall be held civilly,criminally, and administratively liable.


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Essential FormalLegal capacity - must be over18, without anyimpediments (priormarriage that is not

dissolved via the provisionsofArt. 41 on presumptivedeath/absence), and not inan incestuousrelationship or againstpublic policy as definedin Arts. 37 & 38 (Art. 5):

- Ascendants ordescendants

- Full-blood/half-blood/adoptedsiblings

- Collateral bloodrelatives up to the4th civil degree

- Step-parents/step-children

- In-laws- Adoptive

parent/child- One who killed the

others spouse inorder to marry himor her

(For relatives, either

legitimate or illegitimate.)Defect: None; either youare a minor or not.

Authority of the solemnizingofficer, as defined inArts. 7& 10:

- Any member of thejudiciary within thecourts jurisdiction

- Any priest, rabbi,imam, or minister ofany church or sectduly authorized byhis church or sectand registered withthe civil registrargeneral, acting

within the limitsof the writtenauthority granted

by same church orsect; at least one ofthe parties must

belong to thatchurch or sect (7,2)

- Ship captain orairplane chief butONLYin articulomortisbetweenpassengers or crewmembers while the

ship is at sea, theplane is in flight, orduring stopovers atports of call (Art. 31)

- Military commanderof a unit to which achaplain is assigned

but is absent butONLYin articulomortisbetweenmembers of the

armed forces orcivilians within thezone of militaryoperation (Art. 32)

- AnyFilipino consul-general, consul, orvice-consul butONLYbetweenFilipino citizensabroad (Art. 10)

It is the duty of thesolemnizing officer to furnishcopies of the marriagecertificate to the contractingparties and the civil registrar.(Art. 23)Irregularity: If thesolemnizing officer did nothave authority, but either or

both parties believed in goodfaith that he did (Art. 35 par.2)

Consent. Parties over 18but below 21, notemancipated by aprevious marriage (Art.14)must have the consent oftheir parents.Defects:

- No parental,guardian, orsubstitute parental(in that order)consent for partiesunder 21 (Art. 45, 1)

- Unsound mind (2)- Consent obtained by

fraud (3): non-disclosure of aprevious conviction,concealment of prior

Marriage license

Requirements:1. Application (Art. 11)2. Proof of capacity

(birth certificates,death certificate ofdeceased spouse,

parental consent)(Arts. 12, 13, 14respectively)

3. Parental advice (ages21-25) (Art. 15)

4. Certified marriagecounselling (Art. 16)

5. Publication of notice(Art. 17)

6. Investigation ofimpediments (Art.


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pregnancy fromanother man, anSTD, drug addiction,alcoholism,homosexualty, or

lesbianism (Art. 46)- Consent obtained byforce, intimidation,or undue influence(4)

- Physicallyincapable/impotent(5)

- One party has anSTD (6), also countsas fraud (Art. 46, 3)

18)7. Payment of fees (Art.

19)

Irregularity: Any

irregularity involving theduties of the Civil Registrar(Arts. 10, 24-25, 30); onlymakes for civil, criminal, oradministrative liability

The marriage must bebetween a male and afemale. (Art. 2)Defect: None.Youre eithera man or a woman, forpurposes of marriage;neither can claim to be theother against what is in their

birth certificates/the civilregister. (Silverio vs.Republic)

Marriage ceremony

No prescribed form orreligious rite for thesolemnization is required,JUST that the solemnizationis made in public (except incases in articulo mortis) anda personal declaration of

both parties that they takeeach other as husband and

wife is made. (Art. 6 & 8)

Marriages among Muslims or

among members of theethnic cultural communitiesmay be performed validly

without a marriage license,provided they are solemnizedin accordance with theircustoms, rites, or practices.(Art. 33)

Marriages can be solemnized:- Anywhere other than

before the local civilregistrar if there areno means oftransportation. Theremust be an affidavit

stating suchcircumstances (Art.28 & 29)

- As provided in Art.32 & 33 (seeSolemnizing Officer)

Marriages Exempt From License Requirement

- In case either or both of the contracting parties are at thepoint of death, the marriage may be solemnized

without necessity of a marriage license and shallremain valid even if the ailing party survives. Thesolemnizing officer must state in an affidavit to be sent to thelocal civil registrar of the municipality within 30 days thatthe marriage was performed in articulo mortis. (Arts. 27 &29-30)

- If the residence of either party is so located that there is nomeans of transportation to enable such party toappear personally before the local civil registrar. Thesolemnizing officer must state in an affidavit to be sent to thelocal civil registrar of the municipality within 30 days thatthe residence(s) was so located. (Arts. 28 & 29-30)

- A marriage in articulo mortisbetween passengers orcrew members on a ship or airplane, while at sea, in

flight, or at ports of call. (Art. 31) - A marriage in articulo mortis between members of the

armed forces or civilians within the zone of militaryoperation may be solemnized by a military commander inthe absence of his units chaplain (Art. 32)

- Marriages among Muslims or members of the ethnic culturalcommunities may be performed without a marriage licenseprovided they are solemnized in accordance withtheir customs, rites, or practices. (Art. 33)

- Those who have been living together as husband andwife for at least five years and without any legal


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impediment to marry each other. The parties shall statethis in an affidavit before a solemnizing officer, who will alsostate under oath that he ascertained the qualifications of thecontracting parties and found no legal impediment. (Art. 34)

Validity of Marriages Abroad

- General Rule (NCC 15 & 17) - Special Rule in Marriage

o All marriages solemnized outside the Philippines, inaccordance with the laws in force in the country

where they were solemnized, and valid there as such,shall also be valid in this country (FC 26), except thefollowing:

Contracted by minors (FC 35, 1) Bigamous or polygamous marriages without

a judicial declaration of presumptive death

(FC 35, 4 & FC 41) Mistake of identity (FC 35, 5) Subsequent marriages that do not comply

with the recording requirements ofjudgment of annulment/absolute nullity,partition and distribution of the propertiesof the spouses, and delivery of the childrenspresumptive legitimes. (FC 35, 6, 53, & 52)

Psychological incapacity (FC 36) Incestuous marriages (FC 37 & 38)

o Either or both contracting parties who are citizens ofa foreign country must submit a certificate of legal

capacity to contract marriage issued by theirrespective diplomatic or consular officials in order toobtain a marriage license. Stateless persons orrefugees from other countries need only submit anaffidavit stating the circumstances showing suchcapacity to contract marriage. (FC 21)

o Marriages between Filipino citizens abroad may besolemnized by a Filipino consul-general, consul, or

vice-consul. The issuance of a marriage license and the

duties of the local civil registrar and of the

solemnizing officer with regard to thecelebration of marriage shall be performed

by said consular official. (Art. 10)

Void & Voidable Marriages

- Void Marriageso The action or defense for the declaration of absolute

nullity of a marriage shall not prescribe, and itsinvocation is a requirement for purposes ofremarriage. (FC 39 & 40, A.M. 02-11-10-SC, Sec. 2)

o Only the husband or wife may file for absolutenullity of marriage. (A.M. 02-11-10-SC, Sec. 2)

After the spouses die, the descendants orheirs may invoke nullity as long as theyprove their material interest in the case.

In all cases of annulment or declaration ofabsolute nullity of marriage, the Courtshall order the prosecuting attorneyor fiscal to appear on behalf of theState to take steps to prevent collusion

between the parties and to take carethat evidence is not fabricated orsuppressed. (FC 48, 1)

In such cases, no judgment shall be basedupon a stipulation of facts or confession of

judgment. (FC 48, 2) No motion to dismiss the petition shall be

allowed except on the ground of lack ofjurisdiction over the subject matter.Any other ground that may warrantdismissal of the case may ONLYbe raisedas an affirmative defense in the respondentsanswer. (A.M. 02-11-10-SC, Sec. 7)

During pendency of the action and in theabsence of adequate provisions in a writtenagreement between the spouses, the Courtshall provide for the support of thespouses and the custody and support


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of their common children from theproperties of the absolute communityor the conjugal partnership. After final

judgment granting the petition, theobligation of mutual support between thespouses ceases. (FC 49 & 198)

In case of separation of the parents, parentalauthority shall be exercised by the parentdesignated by the court, who shall takeinto account all relevantconsiderations, especially the choiceof the child over seven years old,unless the parent chosen is unfit. Nochild under seven shall be separatedfrom the mother unless the courtfinds compelling reasons to orderotherwise. (FC 213)

- Effects of Final Judgmento The effects provided for in paragraphs 2-5 of FC 43

shall apply to marriages declared void ab initio (seeSubsequent Marriage Upon Reappearance of AbsentSpouse) (FC 50, 1)

o The final judgment in such cases shall provide forthe liquidation, partition, and distribution ofthe properties of the spouses, the custodyand support of the common children, anddelivery of their presumptive legitimes,unless such matters had been adjudicated inprevious judicial proceedings. All creditors ofthe spouses as well as of the absolute community or

the conjugal partnership shall be notified of theproceedings for liquidation. The conjugal dwellingand the lot on which it is situated shall beadjudicated in accordance with the provisions of FC102 & 129 depending on which property regimeapplies (FC 50)

o In the partition, the value of the presumptivelegitimes of all common children, computedas of the date of the final judgment of thetrial court shall be delivered in cash,property or sound securities, unless the parties,

by mutual agreement judicially approved, hadalready provided for such matters. This shall in no

way prejudice the ultimate successional rights of thechildren from the death of either or both of theparents, but the value of the properties received shall

be considered advances on their legitime. Thechildren, their guardian, or the trustee of theirproperty may ask for the enforcement of the

judgment. (FC 51)o Children conceived or born before the judgment of

annulment or absolute nullity of marriage underFC 36 or 53 shall be considered legitimate. (FC 54)

o Illegitimate children shall use the surname and shallbe under the parental authority of their mother, andshall be entitled to support in comformity

with this Code. But illegitimate children mayuse the surname of their father they have

been expressly recognized by their father

through the record of birth appearing in thecivil register, or when an admission in apublic document or private handwritteninstrument is made by the father. The fatherhas the right to institute an action before the regularcourts to prove non-filiation during his lifetime. (FC176)

The legitime of each illegitimate child shallconsist of one-half of the legitime of alegitimate child. (FC 176)

To determine the legitime, the value ofthe property left at the death of the

testator shall be considered,deducting all debts and charges,

which shall not include those imposedin the will. The value of all donations bythe testator that are subject to collation atthe time he made them shall be added to thenet value of the hereditary estate. (NCC 908)

Every compulsory heir mustbring into the mass of theestate any property or right

which he may have received


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from the decedent, during thelifetime of the latter, by way ofdonation, or any other gratuitoustitle, in order that it may becomputed in the determinationof the legitime of each heir andin the account of the partition.(NCC 1061)

o Upon entry of the judgment granting the petition, or,in case of appeal, upon receipt of the entry of

judgment of the appellate court granting thepetition, the Family Court, on motion of eitherparty, shall proceed with the liquidation,partition and distribution of the properties ofthe spouses, including custody, support ofcommon children and delivery of theirpresumptive legitimes pursuant to Articles50 and 51 of the Family Code unless such

matters had been adjudicated in previous judicialproceedings. (A.M. 02-11-10-SC, Sec. 21)

Kind of Void Marriage Elements

Absence of Essential or FormalRequisites (FC 4 & 35)

No legal capacity:- Minority even with the

consent ofparents/guardians (FC 35,1)

- Former spouses who didnot comply with therecording requirements

under FC 53.Other requisites:

- Officer not authorized tosolemnize marriage BUTis only voidable ifcontracting parties enteredinto it in good faith (FC 35,2)

- No marriage license exceptin cases covered byexemption (FC 35, 3, see

Marriages Exempt FromLicense Requirement)

- No proxy marriages;declaration to takeeach other as husbandand wife must bepersonal and is the mostimportant part of theceremony requisite (FC 3)

Bigamous and polygamousmarriages (FC 35, 4)

- Without judicialdeclaration of presumptivedeath/absence after fourconsecutive years or two

years in the cases providedunder NCC 391:

- A person on board a vessellost at sea or an airplane

which is missing (1)

- A person in the armedforces who has taken partin war (2)

- A person in danger ofdeath under othercircumstances (3)

and a well-founded belief thatthe absent spouse was alreadydead. (FC 41)- If both spouses of the

subsequent marriage actedin bad faith, that marriage

shall be void ab initio. (FC44)

Subsequent marriage uponreappearance of absent spouse

(FC 41)

- The subsequent marriageentered into during theabsence of a former spouseshall be automaticallyterminated by therecording of theaffidavit ofreappearance of theabsent spouse, which is


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a sworn statement ofthe fact andcircumstances ofreappearance shall berecorded in the localcivil registry at theinstance of anyinterested person, withdue notice to the spousesof the subsequentmarriage and withoutprejudice to the fact ofreappearance being

judicially determined incase of dispute. (Art. 42)

- If both spouses of thesubsequent marriage actedin bad faith, that marriage

shall be void ab initio. (FC44)

Pertinent provision:The termination of the subsequentmarriage shall produce thefollowing effects (FC 43):

- Children of the subsequentmarriage conceived priorto its termination shall beconsidered legitimate andtheir custody and support

in case of dispute shall bedecided by the court

- Absolute community ofproperty or theconjugal partnershipshall be dissolved andliquidated, but if eitherspouse contracted themarriage in bad faith, hisor her share of the netprofits of the

community or conjugalpartnership propertyshall be forfeited in favorof 1) the commonchildren, 2) children ofthe guilty spouse by aprevious marriage ifany, or 3) the innocentspouse

- Donations by reason ofmarriage shall remain

valid except in cases wherethe done contracted themarriage in bad faith

- The innocent spouse mayrevoke the designation ofthe other spouse who actedin bad faith as beneficiary

in any insurance policyeven if the designation isirrevocable

- The spouse who contractedthe marriage in bad faithshall be disqualified toinherit from theinnocent spouse bytestate and intestatesuccession.

- If a spouse without justcause abandons the other

or fails to comply with hisor her obligations to thefamily, the aggrievedspouse may petition thecourt for receivership, for

judicial separation ofproperty or for authority to

be the sole administratorof the absolutecommunity, subject tosuch precautionary


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conditions as the courtmay impose. (FC 101)

- Legal separation may befiled against a spouse whomakes an attempt on theothers life. (FC 55, 9)

Psychological incapacity (FC36)

- A marriage contracted byany party who, at the timeof the celebration, waspsychologicallyincapacitated tocomply with theessential maritalobligations ofmarriage (as defined

by FC 68-73), shalllikewise be void even ifsuch incapacity

becomes manifest onlyafter its solemnization.(FC 36)

- The psychologicalincapacity must becharacterized by 1)gravity, 2) juridicalantecedence, and 3)incurability (Santos vs.CA)

Molina laid down the followingrules of procedure for applying FC

36:- The burden of proof

belongs to the plaintiff.- The root cause of

psychological incapacitymust be 1) medically orclinically identified, 2)alleged in thecomplaint, 3)sufficiently proven byexperts, and 4) clearly

explained by thedecision. The incapacitymust be psychological tothe extent that hecould not have knownthe obligations he wasassuming, and notphysical even if itssymptoms are physical.

- The incapacity must beproven to be existing atthe time of celebrationof the marriage. It doesnot need to be perceivableat that time, just that it

was there. (Juridicalantecedence)

- The incapacity must beshown to be incurable.

- The illness must be graveenough to bring about thedisability to assume theessential obligations ofmarriage.

- The essential maritalobligations must be thoseembraced by FC 68-71.

- Interpretations givenby the NationalAppellate Matrimonial

Tribunal of theCatholic Church in thePhilippines must begiven great respect,

while not controlling ordecisive.

Incestuous marriages (FC 37)- Ascendants and

descendants- Full- or half-blood siblings

Marriages against public policy(FC 38)

- Legitimate/illegitimatecollateral blood relatives


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up to the fourth civildegree

- Step-parents and step-children

- Parents-in-law andchildren-in-law

- Adopting parent andadopting child

- Surviving spouse ofadopting parent or childand adopting parent oradopted child

- Adopted child andlegitimate child of adopter

- Adopted children of sameadopter

- One who kills anothersspouse or his or her own

spouse in order to marryanother person

Non-compliance under FC 52& 53

- The judgment ofannulment or absolutenullity of the marriage, thepartition and distributionthe properties of thespouses, and the deliveryof the childrenspresumptive legitimesshall be recorded in theappropriate civil registry

and registries of property.(FC 52)

- Either of the formerspouses may marry againafter complying with theserequirements; otherwise,the subsequent marriageshall be null and void. (FC53)

- The court shall issue thedecree of absolute nullity

or annulment after 1) theentry of judgmentgranting the petition isregistered, 2) theapproved partition anddistribution of theproperties of thespouses are registered,and 3) the childrenspresumptive legitimesin cash, property, orsound securities aredelivered. (A.M. 02-11-10-SC, Sec. 22)


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Property Regime of Unions Without Marriage

Art. 147 Art. 148

Qualifications

Capacitated to marry,but are not marriedor under a voidmarriage

Not capacitated tomarry and are notmarried or under a

void marriage

Property

- Their wages andsalaries shall beowned by them inequal shares.- In the absence ofproof to the contrary,propertiesacquired whilethey lived togethershall be presumedto have been

obtained by theirjoint efforts, andshall be owned bythem in equalshares. A party whodid not participate inthe acquisition by theother party of anyproperty shall bedeemed to havecontributed jointlyIFthe formers efforts

consisted in the careand maintenance ofthe family andhousehold.- Neither party canencumber or dispose

by acts inter vivos ofhis or her share inthe propertyacquired duringcohabitation and

- Only propertiesacquired by bothparties through actual

joint contribution ofmoney, property, orindustry shall beowned by them incommon inproportion totheir respectivecontributions.

- In the absence ofproof to the contrary,their contributions,correspondingshares, joint depositsof money andevidences of creditare presumed to beequal.- If one of the partiesis validly married toanother, his or her

share in the co-ownership shallaccrue to theabsolutecommunity orconjugalpartnershipexisting in such

valid marriage.- If the party whoacted in bad faith is

owned incommon, withoutthe consent of theother until afterthe termination oftheir cohabitation.- When only one ofthe parties to a voidmarriage is in goodfaith, the share ofthe party in badfaith in the co-ownership shall beforfeited in favorof their commonchildren, anyrespectivesurviving

descendants ifthere is a defaultof or waiver bychildren, or to theinnocent party inthe absence ofdescendants. Theforfeiture shall takeplace upontermination of thecohabitation.

not validly married toanother, his or hershare shall beforfeited in favorof their commonchildren, anyrespectivesurvivingdescendants ifthere is a defaultof or waiver bychildren, or to theinnocent party inthe absence ofdescendants. Theforfeiture shall takeplace upon thetermination of the

cohabitation.

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