Persons and Family Relations 1

CIVIL LAW REVIEW
Notes, Cases and Commentaries on

Persons and Family Relations
Part I
Compiled by Lianne Tan

Edited and Updated by Rodell A. Molina
This reviewer follows the outline of Prof. Araceli Baviera in Civil Law
Review, except on Articles 1 to 54 of the Family Code which follows the outline
of Prof. Ruben Balane. Lectures of Prof. Ruben Balane as well as commentaries
from former Senator Arturo Tolentino's book are found in this work.
-- RAM
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PHILIPPINE CIVIL LAW

INTRODUCTION
Tolentino, CIVIL CODE OF THE PHILIPPINES, Commentaries and Jurisprudence, Vol. 1
(hereinafter Tolentino):
Concepts of Law.-- The term law may be understood in 2 concepts: (1) in the general or abstract
sense, and (2) in the specific or material sense.
In the general sense, law is defined as the "science of moral rules, founded on the rational
nature of man, w/c govern his free activity, for the realization of the individual and social ends, of a
nature both demandable and reciprocal." (Sanchez Roman.)
In the specific sense, it is defined as "a rule of conduct, just, obligatory, promulgated by
legitimate authority, and of common observance and benefit." (ibid.)
Foundation of Law.-- Law rests upon the concepts of order, co-existence, and liberty.
Characteristics of Law.-- (1) it is a rule of human conduct; (2) promulgated by competent
authority; (3) obligatory; and (4) of general observance.
General Divisions of Law.-- Law in its most comprehensive sense has been divided into 2 general
groups: divine law and human law. By divine law is meant that in w/c God himself is the
legislator who has promulgated the law; by human law is meant that w/c is promulgated by man to
regulate human relations.
Human law is in turn divided into 2 main classes: general or public law and individual or
private law. These in turn are sub-divided as follows:
CIVIL LAW REVIEW

Notes, Cases and Commentaries on Persons and Family Relations
Edited and Updated by RAM
I. General or public law: (a) International law; (b) Constitutional law; (c) Administrative
law; (d) Criminal law; (e) Religious law.
II. Individual or private law: (a) Civil law; (b) Mercantile law; (c) Procedural law.
Kinds of Specific Law.-- Law, in the specific sense, is generally classified into mandatory,
prohibitory, and permissive. In one sense, every law commands, bec. it is obligatory; but it
commands in 3 different ways: (1) it commands that something be done, in w/c case it is
mandatory; (2) it commands that something should not be done, in w/c case it is prohibitory; and
(3) it commands that what it permits to be done should be tolerated or respected, in w/c case it is
permissive.
Codification of Laws.-- A code is a collection of laws of the same kind; a body of legal provisions
referring to a particular branch of law.
Reasons for codification: (1) the necessity of simplifying and arranging the many
juridical rules scattered in several laws and customs; (2) the necessity of unifying various
legislations in the same country; and (3) the necessity of introducing reforms occasioned by social
changes.
Prof. Ruben Balane (hereinafter Balane): According to the Code Commission, 25% of the articles
in the NCC are exact reproductions of the Spanish Civil Code (OCC); 32% were modified or
amended. These comprised 57% of the Code on Persons, ObliCon, Property and Succession.
Forty-three per cent (43%) are new. These deal w/ Special Contracts, Quieting of title, Trusts,
Prescription and some parts in Torts. The accuracy of these figures are doutful.
There are two great models of a modern civil code, the French Civil Code (Code
Napoleon) and the German Civil Code {BGB or Buogeoliches Gesetzbuch [Beuo w/c means
"town," "that w/c has reference to a citizen;" buch w/c means "book;" BGB means "a lawbook
governing citizens."]
Changes from the Old Civil Code in the New Civil Code:
1. Creation of new rights.-- E.g., in the case of spurious children who were given rights
for the first time (successional right, right of support, etc.) New provisions on Human Relations
(Articles 33-36), Reformation of Instruments (Art. 1359), two additional quasi-contracts (Art.
2174 and 2175), moral and nominal damages (Arts. 2217 and 2221)
2. Adoption of new solutions like Art. 461 (change in the river course), Art. 1256
(consignation), Art. 1658 (lease.)
3. Clarification of old provisions like Art. 275 (Legitimation), Art. 992 (illegitimate
children's right to inherit ab intestato), Art. 1410 (void contracts)
4. Omission of certain subjects, e.g., dowry w/c is very western. In the Phils., we have the
opposite of dowry, the bigay-kaya. These contracts were abolished- censos, usus and habitation
(subsumed in easement and lease.)
Is the New Civil Code better than the Old?-- Yes. As a whole. An example of an improvement
in the NCC is in defective contracts. The NCC classifies them into rescissible, voidable,
unenforceable and void.
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Defects in the New Civil Code.-- There is defect in the basic structure, e.g., in modes of
acquiring ownership. Six are given a separate title except Tradition w/c is found in the provisions
on Sales.
Another defect is on the vice of consent found in the title of Contracts. It should have been
in the preliminary title bec. the same is also applicable to marriage, wills-- all juridical
transactions. The same is also true w/ respect to the provisions on degrees of relationship. Why
limit it to succession. It should be placed in the preliminary title.
Other defects are the treatment of donation as an 'act' instead of a 'contract,' w/c is what is
really is; defect in judicious borrowings.
Definition of Civil Law.-- Civil law has been defined as "the mass of precepts w/c determine and
regulate the relations of assistance, authority and obedience among the members of a family, and
those w/c exist among members of a society for the protection of private interests." (Sanchez
Roman.)
Art. 1. This Act shall be known as the "Civil Code of the Philippines."
Tolentino: Civil Code defined.-- A civil code is a collection of laws w/c regulate the private
relations of the members of civil society, determining their respective rights and obligations, w/
reference to persons, things, and civil acts.
Sources of the Civil Code:
(1) The Civil Code of 1889;
(2) The codes, laws, and judicial decisions, as well as the works of jurists of other
countries, such as Spain, the various states of the American Union, etc.;
(3) Doctrines laid down by the SC of the Phils.;
(4) Filipino customs and traditions;
(5) Philippine statutes, such as the Marriage Law, the Divorce Law, the Code of Civ.
Proc. and the Rules of Court.
(6) The Code Commission itself
(7) Works of jurists and commentators of various nations (added by Jurado, CIVIL LAW
REVIEWER.)
Art. 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. (as amended by EO 200.)
Balane: The Civil Code took effect on August 30, 1950 according to the case of Lara v. del
Rosario, one year after its publication, reckoned from the date of actual release
BAVIERA CASE:
UMALI V. ESTANISLAO [209 S 446 (1992)] - Reiterating Tanada v. Tuvera, The clause "unless it is
otherwise provided" refers to the date of effectivity and not to the requirement of publication itself which
cannot in any event be omitted. This clause does not mean that the legislator may make the law effective
immediately upon approval, or on any other date without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that
the usual fifteen (15) day period shall be shortened or extended.
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BALANE CASES:
PESIGAN V. ANGELES [129 S 174] - F: Anselmo and Marcelo Pesigan, carabao dealers,
transported in an Isuzu 10-wheeler truck in the evening of 4/2/82 26 carabaos and a calf from Sipocot,
Camarines Sur w/ P. Garcia, Batangas as destination. Inspite of the permit to transport and the health
certificate and 3 other certificates of inspection, the carabaos, while passing at Basud, Camarines Norte,
were confiscated by the town's police station commander and the provincial veterinarian. The
confiscation was based on EO 626-A w/c provided for the confiscation and forfeiture by the government of
carabaos transported from one province to another. The Pesigans filed against the two officials an action
for replevin for the recovery of carabaos. The case was dismissed for lack of cause of action. Hence, this
appeal under R 45 of the ROC.
HELD: We hold that said EO should not be enforced against the Pesigans on 4/2/82 bec it is a
penal regulation (the confiscation and forfeiture provision or sanction makes EO 626-A a penal
statute) published more than 2 mos. later in the OG dated 6/14/82. It became effective only 15
days thereafter as provided in Art. 2, NCC and Sec. 11 of the Revised Admin. Code.
The word "laws" in Art. 2 includes circulars and regulations w/c prescribe penalties.
Publication is necessary to apprise the public of the contents of the regulations and make the said
penalties binding on the persons affected thereby.
PEOPLE V. VERIDIANO II [132 s 523] - F: Private resp. Benito Go Bio, Jr. was charged w/
violation of BP 22. Before he could be arraigned, Go Bio, Jr. filed a Motion to Quash the information on
the ground that the info. did not charge an offense, pointing out that at the time of the alleged commission
of the offense, w/c was about the 2nd week of May '79 (date of issue of the check), BP 22 has not yet taken
effect. The prosecution opposed the motion contending, among others, that the date of the dishonor of the
check, 9/26/79, is the date of the commission of the offense. Resolving the motion, the court granted the
same and held that BP 22 cannot be given a retroactive effect to apply to the case. Hence, this petition for
review on certiorari, petitioner submitting for review respondent Judge's dismissal of the criminal case.
HELD: When private resp. Go Bio, Jr. committed the act complained of in May '79 (at the time he
issued the check-- the law penalizes the act of making or drawing and issuance of a bouncing check
and not only the fact of its dishonor), there was no law penalizing such act. Following the special
provision of BP 22, it became effective only on 6/29/79. The copy editor of the OG made a
certification that the penal statute in question was made public only on 6/14/79 and not on the
printed date 4/9/79. Differently stated, 6/14/79 was the date of publication of BP 22. Before the
public may be bound by its contents especially its penal provisions, the law must be published and
the people officially informed of its contents. For, it a statute had not been published before its
viol., then, in the eyes of the law, there was no such law to be violated and, consequently the
accused could not have committed the alleged crime.
The effectivity clause of BP 22 states that "This Act shall take effect 15 days after
publication in the OG." The term "publication" in such clause should be given the ordinary
accepted meaning, i.e., to make known to the people in general. If the legislature had intended to
make the printed date of issue of the OG as the point of reference, then it could have so stated in
the special effectivity provision of BP 22.
TANADA V. TUVERA [136 S 27] - F: Invoking the people's right to be informed on matters of
public concern, a right recognized in the Constitution, as well as the principle that laws to be valid and
enforceable must be published in the OG or otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and/or cause the publication in the OG of
various PDs, LOIs, general orders, proclamations, EOs, letters of implementation and administrative
orders. Respondents contend, among others that publication in the OG is not a sine qua non requirement
for the
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effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted
that since the presidential issuances in question contain special provisions as to the date they are to take
effect, publication in the OG is indispensable for their effectivity. The point stressed is anchored on Art. 2
of NCC.
HELD: The interpretation given by respondent is in accord w/ this Court's construction of said
article. In a long line of decisions, this Court has ruled that publication in the OG 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 its date of effectivity, w/c is the 15th day following its
publication-- but not when the law itself provides for the date when it goes into effect.
Respondent's argument, however, is logically correct only insofar as it equates the
effectivity of laws w/ the fact of publication. Considered in the light of other statutes applicable to
the issue at hand, the conclusion is easily reached that said Art. 2 does not preclude the requirement
of publication in the OG, even if the law itself provides for the date of its effectivity.
xxx The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. The clear object of the law is to give the general public
adequate notice of the various laws w/c are to regulate their actions and conduct as citizens. W/o
such notice and publication, there would be no basis for the application of the maxim "ignorantia
legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for
the transgression of a law of w/c he had no notice whatsoever, not even a constructive one. It is
needless to say that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be
bound by law, he must first be officially and specifically informed of its contents.
(unassigned case)
TANADA V. TUVERA [146 S 446] - xxx [T]he clause "unless it is otherwise provided" refers to
the date of effectivity and not to the requirement of publication itself, w/c cannot in any event be
omitted. This clause does not mean that the legislature may make the law effective immediately
upon approval, or on any other date, w/o its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide
that the usual 15-day period shall be shortened or extended.
It is not correct to say that under the disputed clause publication may be dispensed w/
altogether. The reason is that such omission would offend due process insofar as it would deny the
public knowledge of the laws that are supposed to govern it.
Conclusive presumption of knowledge of the law.-- The conclusive presumption that
every person knows the law presupposes that the law has been published if the presumption is to
have any legal justification at all.
The term laws should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some that do not apply to
them directly.
RULE: All statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, w/c shall begin 15 days after publication unless a
different effectivity date is fixed by the legislature.
Coverage.-- Covered by this rule are PDs and EOs promulgated by the Pres. in the
exercise of legislative powers. Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, i.e., regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
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concerning the rules or guidelines to be followed by their subordinates in the performance of their
duties.
Publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws. The mere mention of the number of the PD, the title of such
decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the OG
cannot satisfy the publication requirement. This is not even substantial compliance.
Balane: General application of the provision: The law takes effect on the 16th day.
To recapitulate the cases:
General rule: It must be published either in the OG or in a newspaper of gen. circ.
Exception: The law itself may provide for a different mode of publication, either as to
form (published in some other way provided it is a reasonable mode of publication) or effectivity
date (a reasonable period from publication; cannot be immediately upon approval). This is so bec.
Art. 2 is only a law.
The requirement of publication applies to all laws.
Publication in the OG is not an absolute requirement (J. Feliciano, concurring in Tanada v. Tuvera,
Motion for Reconsideration.)
Rationale.-- The rationale for requiring publication is to give notice to the public in determining
their actions so as to conform to the law. "How can I follow something the existence of which I do
not know?"
Q: Is a law granting citizenship required to be published?
A: SC: Yes. Said the high court:
"The term laws should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit there are
some that do not apply to them directly. An example is a law granting citizenship
to a particular individual, like a relative of Pres. Marcos who was decreed
instant naturalization. It surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to the people. The subject of such law
is a matter of public interest w/c any member of the body politic may question in the
political forums, or, if he is a proper party, even in the courts of justice. In fact, a law
w/o any bearing on the public would be invalid as an intrusion of privacy or a class
legislation or as an ultra vires act of the legislature." (Tanada v. Tuvera, 146 S 446,
453.)
Balane: I disagree w/ the SC. That portion of the decision of the SC in Tanada is only an
obiter.
Art. 3. Ignorance of the law excuses no one from compliance therewith.
Tolentino: Reasons for Presumption of Knowledge of Law.-- (1) If laws will not be binding
until they are actually known, then social life will be impossible, bec. most laws cannot be enforced
due to their being unknown to many; (2) it is absurd to absolve those who do not know the law and
increase the obligations of those who know it; (3) it is almost impossible to prove the contrary,
when a person claims ignorance of the law; (4) in our conscience, we carry norms of right and
wrong, and a sense of duty, so that our reason indicates many times what we have to do; and in
more complicated juridical relations, there are lawyers who should be consulted.
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What Laws Covered.-- Philippine laws are covered. There is no conclusive presumption of
knowledge of foreign laws. Even our courts cannot take judicial notice of them. Ignorance of a
foreign law will not be a mistake of law but a mistake of fact.
And with respect to local laws, the article is limited to mandatory and prohibitory laws. It
does not include those w/c are merely permissive. (Manresa.)
No Exceptions Admitted.-- The rule is based on public interest and is designed precisely to avoid
abuse through allegation that the law has not come to the knowledge of a party. But it has been
held by our CA that the rule should not be applied w/ equal force to minors who, due to their lack
of intelligence, must be treated differently. (Peo. v. Navarro, 51 OG 4062.)
Mistake of Fact.-- Ignorance may either be of law or of fact. Ignorance of fact (ignorantia facti)
may excuse a party from the legal consequences of his conduct; but not ignorance of law, for
ignorantia juris neminem excusat.
Difficult Question of Law.-- In specific instances provided by law, mistake as to difficult legal
questions has been given the same effect as a mistake of fact, e.g., Art. 526, par. 3 which provides:
"Mistake upon a doubtful or difficult question lf law may be the basis of good faith."
Balane: Art. 3 creates a conclusive presumption w/c in some instances may be unreasonable or
harsh. But the alternative is worse, w/c is anarchy. Bec. the law realizes its severity, it is
sometimes mitigated as in the following provisions
Art. 526, par. 3, quoted above.
Art. 1334. Mutual error as to the legal effect of an agreement when the real purpose of the
parties is frustrated, may vitiate consent.
Art. 2155. Payment by reason of a mistake in the construction or application of a diffiicult
question of law may come within the scope of the preceding article.
Art. 2154. If something is received when there is no right to demand it and it
was unduly delivered through mistake, the obligation to return it arises.
BALANE CASE:
KASILAG V. RODRIGUEZ [ 69 P 217] - F: Responds, Rafaela Rodriguez, et al., children and heirs
of the deceased Emiliana Ambrosio, commenced a civil case to recover from the petitioner the possession
of the land and its improvements granted by way of homestead to Emiliana Ambrosio (EA).
The parties entered into a contract of mortgage of the improvements on the land acquired as
homestead to secure the payment of the indebtedness for P1,000 plus interest. In clause V, the parties
stipulated that EA was to pay, w/in 4 1/2 yrs, the debt w/ interest thereon, in w/c event the mortgage would
not have any effect; in clause VI, the parties agreed that the tax on the land and its improvements, during
the existence of the mortgage, should be paid by the owner of the land; in clause VII, it was covenanted
that w/in 30 days from the date of the contract, the owner of the land would file a motion in the CFI of
Bataan asking that cert. of title no. 325 be cancelled and that in lieu thereof another be issued under the
provisions of RA 496; in clause VIII the parties agreed that should EA fail to redeem the mortgage w/in
the stipulated period of 4 1/2 yrs, she would execute an absolute deed of sale of the land in favor of the
mortgagee, the petitioner, for the same amount of the loan including unpaid interest; and in clause IX it
was stipulated that in case the motion to be presented under clause VII should be disapproved by the CFIBataan, the contract of sale of sale would automatically become void and the mortgage would subsist in all
its force.
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One year after the execution of the mortgage deed, it came to pass that EA was unable to pay the
stipulated interest as well as the tax on the land and its improvements. For this reason, she and the
petitioner entered into another verbal contract whereby she conveyed to the latter the possession of the
land on condition that the latter would not collect the interest on the loan, would attend to the payment of
the land tax, would benefit by the fruits of the land, and would introduce improvements thereon.
HELD: The possession by the petitioner and his receipts of the fruits of the land,
considered as integral elements of the contract of antichresis, are illegal and void agreements, bec.
the such contract is a lien and as such is expressly prohibited by Sec 116 of Act No. 2874, as
amended. The CA held that petitioner acted In BF in taking possession of the land bec. he knew
that the contract he made w/ EA was an absolute sale, and further, that the latter could not sell the
land bec. it is prohibited by Sec. 116 of Act 2874.
xxx [A] person is deemed a possessor in BF when he knows that there is a flaw in his title
or in the manner of its acquisition, by w/c it is invalidated.
The question to be answered is w/n the petitioner should be deemed a possessor in GF bec.
he was unaware of any flaw in his title or in the manner of its acquisition by w/c it is invalidated.
Ignorance of the flaw is the keynote of the rule. From the facts as found by the CA, we can neither
deduce nor presume that the petitioner was aware of a flaw in his title or in the manner of its
acquisition, aside from the prohibition contained in Sec. 116. This being the case, the question is
w/n GF may be premised upon ignorance of the laws.
Gross and inexcusable ignorance of the law may not be the basis of GF but excusable
ignorance may be such basis (if it is based upon ignorance of a fact.) It is a fact that the
petitioner is not conversant w/ the laws bec. he is not a lawyer. In accepting the mortgage of the
improvements he proceeded on the well-grounded belief that he was not violating the prohibition
regarding the alienation of the land. In taking possession thereof and in consenting to receive its
fruits, he did not know, as clearly as a jurist does, that the possession and enjoyment of the fruits
are attributes of the contract of antichresis and that the latter, as a lien, was prohibited by Sec. 116.
Thus, as to the petitioner, his ignorance of the provisions of sec. 116 is excusable and may be the
basis of GF.
The petitioners being in GF, the respondents may elect to have the improvements
introduced by the petitioner by paying the latter the value thereof, P3,000, or to compel the
petitioner to buy and have the land where the improvements or plants are found, by paying them its
market value to be fixed by the court of origin, upon hearing the parties.
Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.
Tolentino: Concept of Retroactive Law.-- A retroactive law is one intended to affect transactions
w/ occurred, or rights w/c accrued, before it became operative, and w/c ascribes to them effects not
inherent in their nature, in view of the law in force at the time of their occurrence.
It is one w/c creates a new obligation and imposes a new duty, or attaches a new
disability, in respect to transations or considerations already past. (Balane quoting Tolentino.)
Reason for the Article.-- A law that has not yet become effective cannot be considered as
conclusively known by the people. To make a law binding even before it has taken effect may lead
to arbitrary exercise of legislative power.
Exceptions to Rule:
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(1) When the law itself so expressly provides.-- This has two exceptions: (a) when the
retroactivity of a penal statute will make it an ex post facto law, and (2) when the retroactive
effect of the statute will constitute an impairment of the obligation of contract.
(2) In case of Penal statutes.-- Penal laws shall have retroactive effect insofar as they
favor the accused who is not a habitual criminal, even though at the time of the enactment of such
laws final sentence has already been rendered. (Art. 22, RPC.)
(3) In case of Remedial statutes.-- Remedial statutes are those w/c refer to the method of
enforcing rights or of obtaining redress of their invasion.
(4) In case of Curative statutes.-- Curative statutes are those w/c undertake to cure
errors and irregularities, thereby validating juridical or administrative proceedings, acts of public
officers, or private deeds and contracts w/c otherwise would not produce their intended
consequences by reason of some statutory disability or the failure to comply w/ come technical
requirement. But these statutes cannot violate constitutional provisions, nor destroy vested rights
of a 3rd person. They cannot affect a judgment that has become final.
(5) In case of laws interpreting others.-- These are laws w/c are intended to clarify
doubts or interpret an existing law.
(6) In case of laws creating new rights.-- The principle that a new law shall not have
retroactive effect only governs rights arising from acts done under the rule of the former law; but if
a right be declared for the first time by a new law it shall take effect from the time of such
declaration, even though it has arisen from acts subject to the former laws, provided that it does not
prejudice another acquired right of the same origin.
(7) If the law is of an emergency measure and authorized by the police power of the State.
(added by Balane.)
Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be
void, except when the law itself authorizes their validity.
Tolentino: Mandatory and Directory Laws.-- Directory laws are those provisions which are
mere matter of form, or w/c are not material, do not affect any substantial right, and do not relate
to the essence of the thing to be done, so that compliance is a matter of convenience rather than
substance. Mandatory laws are statutory provisions w/c relate to matters of substance, affect
substantial rights and are the very essence of the thing required to be done.
Balane: A mandatory law is one w/c prescribes some element as a requirement, e.g., Art. 804 w/c
requires that a will must be in writing.
A prohibitory law is one w/c forbids something, e.g., Art. 818 w/c forbids joint wills.
Balane quoting Jurado:
Exceptions to the above provision.
1. When the law itself authorizes its validity.-- "Law" here refers to the juridical order in its
totality.
2. Where the law itself authorizes its validity, but punishes the violator, e.g., where the marriage
was solemnized by a person who does not have legal authority, but the party or parties believing in
GF, that such person has authority to do so, then the marriage is valid but the person who
solemnized the same shall be criminally liable
3. Where the law merely makes the act voidable, e.g., a marriage celebrated through violence or
intimidation or physical incapacity or fraud is valid until it is annuled.
4. Where the law declares the act as void, but recognizes legal effects arising from it, e.g., children
born of void marriage are classified as illegitimate children entitled to the rights in Art. 176, FC.
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Art. 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.
Tolentino: Elements of Right.-- Every right has 3 elements: (1) the subjects, (2) the object, and
(3) the efficient cause.
(1) The subjects of rights are persons; rights exist only in favor of persons. There are 2
kinds of subjects: (a) the active subject, who is entitled to demand the enforcement of the right;
and (b) the passive subject, who is duty-bound to suffer its enforcement.
(2) Things and services constitute the object of rights.
(3) The efficient cause is the fact that gives rise to the legal relation.
Kinds of Rights.-- Rights may be classified into political and civil; the former include those
referring to the participation of persons in the gov't of the State, while the latter include all others.
Civil rights may be further classified into: The rights of personality, family rights and the
patrimonial rights.
The rights to personality and family rights are not subject to waiver; but patrimonial rights
can generally be waived.
Renunciation or Waiver.-- Waiver is defined as the relinquishment of a known right with both
knowledge of its existence and an intention to relinquish it. Voluntary choice is the essence of
waiver.
Balane: Exceptions to the Rule that Rights can be waived.-- (1) If the waiver is contrary to
one of the 5 considerations (law, public order, public policy, morals or good customs), e.g., you
cannot waive future support bec. it is against the law and public policy; (2) if the waiver would be
prejudicial to a 3rd party w/ a right recognize by law, e.g., in a stipulation pour atrui, the creditor
cannot waive the stipulation if favor of a third person.
Elements of a Valid Waiver:
(1) Existence of a right;
(2) Knowledge of existence thereof;
(3) An intention to relinquish the right (implied in this is the capacity to dispose of the
right.) (Balane quoting Herrera v. Borromeo, 152 S 171.)
Tolentino: The renunciation must be made in a clear and unequivocal manner. The formality
required by law for such renunciation, if any, should be followed; if no particular formality is
required, the renunciation may even be tacit, provided the intent to renounce can be clearly
established.
Scope of Waiver.-- The doctrine of waiver is generally applicable to all rights and privileges to
w/c a person is legally entitled, w/n secured by contract, conferred by statute, or guaranteed by the
Consti., provided such rights and privileges rest in the individual and are intended for his sole
benefit.
Waiver of Obligations.-- Generally, obligations cannot be renounced. But a person may exempt
himself from an obligation w/c is inherent in a right, upon the renunciation of such right. For
example, see Art. 628.
Renunciation of Real Rights.-- According to Valverde, while the renunciation of a personal right
requires the consent of the debtor (as in case of remission or condonation) the renunciation of a real
right is unilateral and depends upon the exclusive will of the owner of the right.
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PEOPLE V. DONATO [198 S 130 (1991)] - The doctrine of waiver extends to the rights and privileges
of any character, and since the word "waiver" covers any conceivable right, it is the general rule that a
person may waive any matter which affects his property, and any alienable right or privilege of which he is
the owner or which belongs to him or to which he is legally entitled whether secured by contract,
conferred
with statute, or guaranteed by constitution, provided such rights and privileges do not infringe on the
rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does
not contravene public policy.
Rights guaranteed to one accused of a crime fall naturally into two classes: (a) Those in which
the state, as well as the accused, is interested, and (b) those which are personal to the accused, which are
in the nature of personal privileges. Those of the first class cannot be waived, those of the second may be.
(Commonwealth v. Petrillo).
This Court has recognized waivers of constitutional rights such as the rights against unreasonable searches and seizures, the right to counsel and to remain silent, and the right to be heard.
The right to bail is another of the constitutional rights which can be waived. It is a right personal
to the accused and whose waiver would not be contrary to law, public order, morals or good customs, or
prejudicial to a third person with a right recognized by law.
Art. 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution.
Balane: Leges posteriores priores contrarias abrogant.
Tolentino: Reason for the Article.-- Since laws are promulgated by competent authority of the
State, they can cease to have effect only through the will of the State.
Repeal of Laws.-- There are 2 kinds of repeal of a law: (1) express or declared repeal, contained
in a special provision of a subsequent law, and (2) implied or tacit repeal, w/c takes place when
the provisions of the subsequent law are incompatible or inconsistent w/ those of an earlier law.
Requisites of Implied Repeals: (1) the laws cover the same subject matter, and (2) the latter is
repugnant to the earlier.
Repeal of Repealing Law.-- When a law w/c expressly repeals a prior law is itself repealed, the
law first repealed shall not be revived unless expressly so provided. But if the prior law was
repealed, not expressly but by implication, the repeal of the repealing law will revive the prior law,
unless the language of the last law provides otherwise.
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines.
Balane: This is a common law principle. This shows that our New Civil Code is not a full-blooded
Civil Law scion.
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Tolentino: Decisions not Source of Law.-- Jurisprudence, in our system of gov't, cannot be
considered as an independent source of law; it cannot create law. But the Court's interpretation of
a statute constitutes part of the law as of the date it was originally passed, since the construction
merely establishes contemporaneous legislative intent that the interpreted law carried into effect.
Doctrine of stare decisis.-- The doctrine of stare decisis is based on the principle that once a
question of law has been examined and decided, it should be deemed settled and closed to further
argument. The doctrine, however, is flexible; so, that when, in the light of changing conditions, a
rule has ceased to be of benefit and use to society, the courts may rightly depart from it.
PEOPLE V. LICERA [65 S 270 (1975)] - F: In 1961, accused was granted an appointment as secret
agent of Governor Leviste. In 1965, accused was charged with illegal possession of firearms. The SC held
that where at the time of his appointment, People v. Macarandang (1959) was applicable, which held that
secret agents were exempt from the license requirement, and later People v. Mapa (1967) was decided, the
earlier case should be held applicable.
HELD: Art. 8 of the Civil Code decrees that judicial decisions applying or interpreting the laws
or the Constitution form part of this jurisdiction's legal system. These decisions, although in them selves
not law, constitute evidence of what the laws mean. The application or interpretation placed by the courts
upon a law is part of the law as of the date of the enactment of the said law since the Court's application or
interpretation merely establishes the contemporaneous legislative intent that the construed law purports to
carry into effect.
A new doctrine abrogating an old rule operates prospectively and should not adversely affect
those favored by the old rule.
PEOPLE V. PINUILA [55 O.G. 23 p. 4228 (1958)] - Where accused who were charged with murder,
filed a motion to quash on the ground of lack of jurisdiction, which the lower court granted, and the gov ernment, following, the doctrine of People v. Salico which held that an appeal by the government does not
place accused in double jeopardy, this interpretation, though later abandoned, must be held applicable to
accused, and they cannot invoke the defense of double jeopardy.
People v. Salico has long become final and conclusive and has become the law of the case. It may
be erroneous, judged by the law on double jeopardy as recently interpreted by the SC. Even so, it may not
be disturbed and modified. The SC's recent interpretation of the law may be applied to new cases, but
certainly not to an old one finally and conclusively determined.
"Law of the case has been defined as the opinion delivered on a former appeal. More specifically,
it means that whatever is once irrevocably established as the controlling legal rule of decision between the
same parties in the same case continues to be the law of the case, WHETHER CORRECT ON GENERAL
PRINCIPLES OR NOT, so long as the facts on which such decision was predicated continue to be the
facts of the case before the court." [21 C.J.S. 330]
"It may be stated that as a rule of general application, where the evidence on a second or
succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions,
points or issues adjudicated on the prior appeal are the law of the case on all subse quent appeals and will
not be reconsidered or readjudicated therein."
The rule is founded on the policy of ending litigation, and to be necessary to enable an appel late
court to perform its duties satisfactorily and effectively.
Art. 9. No judge or court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the laws.
Balane: In a situation contemplated by this Art., the judge will be guided by customs and
principles of right and justice.
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The defect of this article is that the Code Commission omitted the second paragraph of Art.
6 of the OCC, from w/c the provision came w/c provided that "if there is not law exactly applicable
xxx the customs of the place shall be applied, and in default thereof, the general principles of law.
But this is not completely abrogated bec. of Art. 10 and 11.
Tolentino: Applicability of Article.-- This article does not apply to criminal prosecutions, bec.
when there is no law punishing an act, the case must be dismissed, however, reprehensible the act
may seem to the judge.
Obscurity or Deficiency of Law.-- If the law is vague or obscure, the court should clarify it in the
light of the rules of statutory construction; it is silent or insufficient, the court should fill the
deficiency by resorting to customs or general principles of law.
Concept of Customs.-- Custom may be defined as the juridical rule w/c results from a constant
and continued uniform practice by the members of a social community, w/ respect to a particular
state of facts, and observed w/ a conviction that it is juridically obligatory.
Requisites of Custom.-- (1) plurality of acts, or various resolutions of a juridical question raised
repeatedly in life; (2) uniformity, or identity of the acts or various solutions to the juridical
questions; (3) general practice by the great mass of the social group; (4) continued performance
of these acts for a long period of time; (5) general conviction that the practice corresponds to a
juridical necessity or that it is obligatory; and (6) the practice must not be contrary to law, morals
or public order.
Custom distinguished from Law.-- As to origin, custom comes from the society, while law comes
from the governmental power of the State; the former is a spontaneous, while the latter is a
conscious creation
As to form, custom is tacit, being manifested in acts or usages, while law is express,
manifested in solemn and official form. The former is unwritten law, the latter is written law.
What Custom Applied.-- When the place where the court is located and the domicile of the
parties are different, and each place has a different custom, it is to be presumed that they knew the
custom of their domicile and not that of the court's location. If the domiciles of the parties are
different and they have different customs, Manresa believes that there is no reason for making a
preference, and the matter should be treated as if there is no custom. Sanchez Roman sustains the
view, however, that in the absence of reasons for preference, the general rule should be to apply the
custom of the place for the performance or consummation of the juridical act.
Art. 10. In case of doubt in the interpretation or application of laws, it is presumed
that the lawmaking body intended right and justice to prevail.
Art. 11. Customs which are contrary to law, public order or public policy shall not be
countenanced.
Balane: Custom can be applied suppletorily only if custom is not contrary to any law.
Art. 12. A custom must be proved as a fact, according to the rules of evidence.
BALANE CASE:
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YAO KEE V. SY-GONZALES [167 S 737] - F: Sy-Kiat, a Chinese national, died in 1977 in
Kaloocan City, where he was residing, leaving behind substantial real and personal properties here in the
Phils. Petition for letters of administration filed by his natural children, was opposed on the ground that
Sy Kiat was legally married to Yao Kee, in Fookien, China on 1/13/31 and that the oppositors are the
legitimate children. The probate court rendered judgment in favor of the oppositors; this was modified
and set aside by the CA w/c held that both sets of children were acknowledged natural children. Both
parties moved for partial reconsideration.
HELD: For failure to prove the foreign law or custom, and consequently, the validity of the
marriage in accordance w/ said law or custom, the marriage between Yao Kee and Sy Kiat cannot
be recognized in this jurisdiction. In the case at bar, petitioners did not present any competent
evidence relative to the law and customs of China on marriage. The testimonies of Yao and Gan
Ching cannot be considered as proof of China's law or custom on marriage not only bec. they are
self-serving evidence, but more importantly, there is no showing that they are competent to testify
on the subject matter.
Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed
(practiced) as a social rule, legally binding and obligatory." The law requires that "a custom must
be proved as a fact, according to the rules of evidence." On this score the Court had occasion to
state that "a local custom as a source of right can not be considered by a court of justice unless
such custom is properly established by competent evidence like any other fact." The same
evidence, if not one of a higher degree, should be required of a foreign custom.
Art. 13. When the laws speaks 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 twentyfour hours; and nights from sunset to sunrise.
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.
Balane: Art. 13 has been superseded by Sec. 31, Book I of EO 292 (Administrative Code of 1987)
w/c provides that
Sec. 31. Legal Periods.-- "Year" shall be understood to be twelve (12) calendar
months; "months" of thirty (30) days, unless it refers to a specific calendar month in which
case it shall be computed according to the number of days the specific month contains; "day,"
to a day of twenty four (24) hours; and "nights," from sunset to sunrise.
Baviera: This article applies only to legal provisions and not to contracts, where the parties may
stipulate on the manner of computing years, months and days.
Tolentino: Meaning of "Week."-- The term "week," when computed according to the calendar,
means a period of 7 days beginning on Sunday and ending on Saturday, but where the word is used
simply as a measure of duration of time and w/o reference to the calendar, it means a period of 7
consecutive days w/o regard to the day of the week on w/c it begins.
Meaning of "Month."-- There are several senses in w/c the term "month" may be understood. A
"lunar" mo. is composed of 28 days. A "calendar" mo. as designated in the calendar, w/o regard to
the no. of days it may contain, etc. The Code, however, does not use "month" in either of these
senses, but strictly in a legal sense, as a period composed of 30 days.
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Computation of Time.-- When the act and the period are contractual, not required by law, court
order, or rule of court, the exception referring to Sundays and holidays does not apply, and the act
must be done on the last day, even if the latter should be a Sunday or a holiday. This is in
consonance w/ the rule that the contract is the law between the contracting parties.
BALANE CASE:
NAMARCO V. TECSON [29 S 70 (1969)] - F: On 10/14/55, the CFI-Mla. rendered judgment in a
civil case, Price Stabilization Corp. vs. Tecson, et al. Copy of this decision was, on 10/21/55 served upon
defendants in said case. On 12/21/65, NAMARCO, as successor to all the properties, assets, rights, and
choses in action of Price, as pltff in that case and judgment creditor therein, filed w/ the same court, a
complaint against defendants for the revival of the judgment rendered therein. Def. Tecson moved to
dismiss said complaint, upon the ground of prescription of action, among others. The motion was granted
by the court. Hence, the appeal to the CA w/c was certified to the SC, upon the ground that the only
question raised therein is one of law, namely,
ISSUE: W/n the present action for the revival of a judgment is barred by the statute of
limitations.
Pursuant to Art. 1144 (3), NCC, an action for judgement must be brought w/in 10 yrs
from the time the judgment sought to be revived has become final. This in turn, took place on
12/21/55 or 30 days from notice of the judgment-- w/c was received by defs. on 10/21/55-- no
appeal having been taken therefrom. The issue is thus confined to the date on w/c the 10 yrs from
12/21/55 expired. Pltff alleges that it was 12/21/65, but appellee maintains otherwise, bec. :when
the law speaks of years xxx it shall be understood that years are of 365 days each"-- and, in 1960
and 1964 being leap years, so that 10 yrs of 365 days each, or an aggregate of 3650 days, from
12/21/55, expired on 12/19/65.
Pltff.-appellant further insists that there is no question that when it is not a leap year,
12/21 to 12/21 of the following year is one year. If the extra day in a leap year is not a day of the
year, bec. it is the 366th day, then to what year does it belong? Certainly, it must belong to the year
where it falls, and therefore, that the 366 days constitute one yr.
HELD: The very conclusion thus reached by appellant shows that its theory contravenes
the explicit provision of Art. 13 limiting the connotation of each "year"-- as the term is used in our
laws-- to 365 days.
[The action to enforce a judgment which became final on December 21, 1955 prescribes in
10 years. Since the Civil Code computes "years" in terms of 365 days each, the action has
prescribed on December 19, 1955, since the two intervening leap years added two more days to the
computation. It is not the calendar year that is considered.]
BAVIERA CASE:
QUIZON V. BALTAZAR [76 S 560 (1977)] - The RPC provides that an action for serious oral
defamation prescribes in six months. The months should be computed by the regular 30 days, not the
calendar months. Hence, where the crime was committed on November 11, 1963, and the action was filed
exactly 180 days later, said action was filed on time.
Art. 14. Penal laws and those of public security and safety shall be obligatory upon all
who live or sojourn in Philippine territory, subject to the principles of public international law
and to treaty stipulations.
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Balane: There are 2 principles involved here: Territoriality and Generality. Territoriality means
that our criminal laws are enforceable only w/in Phil. territory. Exception to the territoriality
principle is Art. 2 of RPC.
Generality w/c means that w/in the Phil. territory, our criminal laws will apply to anyone,
citizen or alien. Exceptions: (1) treaty stipulations w/c exempted some persons w/in the
jurisdiction of the Phil. courts. and (2) ambassadors [consuls are subject to the jurisdiction of our
criminal courts (Schneckenburger v. Moran.)]
Tolentino: Exemption under International Law.-- Under the theory of extraterritoriality,
foreigners may be exempted from the operation of the Phil. laws in the following cases: (1) when
the offense is committed by a foreign sovereign while in Phil. territory; (2) when the offense is
committed by diplomatic representatives; and (3) when the offense is committed in a public or
armed vessel of a foreign country.
Offenses in Merchant Vessels.-- A merchant vessel of foreign registry does not enjoy the
extraterritorial privilege of foreign public or war vessels. An offense committed on such vessel
while it is in a Phil. port, constituting a breach of public order and a viol. of the policy established
by the legislature, is triable in Phil. ports.
Art. 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.
Tolentino: Theories on Personal Law.-- Domiciliary theory, followed in the US, according to
w/c the personal laws of a person are determined by his domicile.
Nationality theory w/c makes nationality or citizenship as the basis for determining the
personal laws of an individual.
Capacity to Contract.-- If under the law of the State of w/c a party to a contract is a citizen, he is
already of age at the time he enters into the contract, he cannot set such contract aside on t he
ground of minority, even if under the laws of the Phils. he is still a minor. (Government vs. Frank,
13 P 238.)
Renunciation of Allegiance.-- The question of how a citizen may strip himself of the status as
such citizen is governed by his national law.
BALANE CASES:
TENCHAVEZ V. ESCANO [15 SCRA 355] - F: Pastor Tenchavez (PT), 32, married Vicenta
Escano (VE), 27 on Feb. 24, 1948, in Cebu City. As of June 1948, the newly-weds were already
estranged. On 6/24/50, VE left for the US. On 8/22/50, she filed a verified complaint for divorce against
the herein pltff. in the State of Nevada on the ground of "extreme cruelty, entirely mental in character."
On 10/21050, a decree of divorce was issued by the Nevada Court. On 9/13/54, VE married an
American Russel Leo Moran IN Nevada. She now lives w/ him in California and by him, has begotten
children. She acquired American citizenship on 8/8/58. On 7/30/55, PT filed a complaint for legal
separation and damages against VE and her parents in the CFI-Cebu.
HELD: At the time the divorce decree was issued, VE like her husband, was still a
Filipino citizen. She was then subject to Philippine law u nder Art. 15, NCC. Philippine law,
under the NCC then now in force, does not admit absolute divorce but only provides for legal
separation.
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For Phil. courts to recognize foreign divorce decrees bet. Filipino citizens would be a
patent violation of the declared policy of the State, especially in view of the 3rd par. of Art. 17,
NCC. Moreover, recognition would give rise to scandalous discrimination in favor of wealthy
citizens to the detriment of those members of our society whose means do not permit them to
sojourn abroad and obtain absolute divorce outside the Phils.
Therefore, a foreign divorce bet. Filipino citizens, sought and decreed after the effectivity
of the NCC, is not entitled to recognition as valid in this jurisdiction.
VAN DORN V. ROMILLO [139 SCRA 139] - F: Petitioner Alice Reyes Van Dorn is a citizen of
the Phils. while private resp. Richard Upton is a US citizen; they were married in HK in 1972; after the
marriage, they established their residence in the Phils. and begot 2 children; the parties were divorced in
Nevada, US, in 1982; and petitioner has remarried also in Nevada, this time to Theodore Van Dorn.
On 6/18/83, Upton filed a suit against petitioner in the RTC-Pasay, stating that petitioner's
business in Ermita, Mla. (the Galleon Shop), is conjugal prop. and asking that petitioner be ordered to
render an accounting of that business, and that Upton be declared as having the right to manage the
conjugal prop.
Is it true that owing to the nationality principle embodied in Art. 13, NCC, only Phil.
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, w/c may
be recognized in the Phils., provided they are valid according to their national law.
In this case, the divorce in Nevada released private resps from the marriage from the stds
of American law, under w/c divorce dissolves the marriage.
Thus, pursuant to his national law, Upton 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. xxx.
To maintain, as Upton does, that under our laws, petitioner has to be considered still
married to him and still subject to a wife's obligations under the NCC cannot be just. Petitioner
should not be obliged to live together with, observe respect and fidelity, and render support to
private resp. The latter should not continue to be one of her heirs w/ possible rights to conjugal
prop. She should not be discriminated against in her own country if the ends of justice are to be
observed.
Art. 16. Real property as well as personal property is subject to the law of the
country where it is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose succession
is under consideration, whatever may be the nature of the property and regardless of the
country wherein said property may be found.
Balane: In Art. 16 par. 1 provides that the lex situs or lex rei sitae governs real or personal prop.
This rule applies even to incorporeal property. In Tayag v. Benguet Consolidated, 26 S, the SC
said that Phil. courts have jurisdiction over shares of stocks located in the Phils.
Tolentino: The rule of mobilia sequuntur personam in personal property has yielded to the to the
lex situs bec. of the great increase in modern times of the amount and variety of prop. not
immediately connected w/ the person of the owner.
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Law on Succession.-- The law governing succession may be considered from the point of view of
(a) the execution of wills, and (b) the distribution of property. The formalities of execution of will
are generally governed by the law of the place of execution (Art. 17, par. 1.) But the distribution
of the estate is governed by the law of the nation of the deceased.
Applicability of Foreign Law.-- The second par. of this article can be invoked only when the
deceased was vested w/ a descendible interest in prop. w/in the jurisdiction of the Phils.
The intrinsic validity of the provisions of the will of a foreigner who dies in the Phils. is to
be determined by the laws of his own state or country, and not by those of the Phils. Thus, a
condition in a will of a foreigner that his legatee respect his order that his prop. be distributed
according to the laws of the Phils. instead of the laws of his own country, was held illegal and
considered as not written.
Art. 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 Philippine
laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
Balane: The rule in par. 1 is known as the lex loci celebrationis.
Tolentino: Validity and Effects of Obligations.-- The code fails to mention the law w/c shall
govern the validity and effects of obligations. (1) First, the law designated by the parties shall be
applied; (2) if there is no stipulation on the matter, and the parties are of the same nationality, their
national law shall be applied; (3) if this is not the case, the law of the place of perfection of the
obligation shall govern its essence and nature, and the law of the place of the performance shall
govern its fulfillment; (4) but if these places are not specified and they cannot be deduced from the
nature and circumstances of the obligation, then the law of the domicile of the passive subject shall
apply. (Manresa and Valverde.)
AZNAR V. GARCIA [61 O.G. No. 46 p. 7303 (1963)] - Where the testator was a citizen of California,
and domiciled in the Philippines, the amount of successional rights should be governed by his na tional
law. However, since the conflicts of law rules of California provides that in case of citi zens who are
residents of another country, the law of the country of domicile should apply, then Philippine law on
legitimes was applied. Hence, under Philippine laws, the acknowledged natural daughter cannot be
deprived of her legitime.
BELLIS V. BELLIS [20 S 358 (1967)] - Where the testator was a citizen of Texas and domiciled in
Texas, the intrinsic validity of his will should be governed by his national law. Since Texas law does not
require legitimes, then his will which deprived his illegitimate children of the legitimes is valid.
While Art. 17, par. 3 provides that prohibitive laws of our country concerning persons and their
property shall not be rendered ineffective by contrary laws in a foreign country, this cannot be considered
an exception to Art. 16 which categorically provides for the situations when the national law shall apply.
Precisely, Congress deleted the phrase "notwithstanding the provisions of this and the next preceding
article" when they incorporated Art. 11 of the Old Civil Code as Art. 17 of the New Civil Code, while
reproducing without substantial change Art. 10 paragraph 2 of the Old Civil Code as Art. 16 of the New
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Civil Code. It must have been their purpose to make Art. 16, paragraph 2, a specific provision in itself
which must be applied in testate and intestate successions.
Thus, in Miciano v. Brimo, a provision in a foreigner's will to the effect that his properties shall
be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his
national law cannot be ignored in regard to those matters that Art. 10 - now Art. 16 - states said national
law shall govern.
Baviera: Why was Texas law applied when there was no proof of Texas law?
Other Conflict of Law Rules:
Art. 829. A revocation done outside the Philippines, by a person who does not have his
domicile in this country, is valid when it is done according to the law of the place where the will was
made, or according to the law of the place in which the testator had his domicile at the time; and if
the revocation takes place in this country, when it is in accordance with the provisions of this Code.
Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Art. 1753. The law of the country to which the goods are to be transported shall govern the
liability of the common carrier for their loss, destruction or deterioration.
Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
xxx. (Family Code.)
- Art. 35 (1) - must not be below 18

- Art. 35 (4) - not bigamous or polygamous
- Art. 35 (5) - no mistake as to identity of the other party
- Art. 35 (6) - void marriages for failure to comply with Art. 53 on recording in the Civil
Registry of the judgment of annulment or absolute nullity of marriage, partition and
distribution of properties of the spouses, and the delivery of the children's presumptive
legitimes.
- Art. 36 - psychological incapacity
- Art. 37 - incestuous marriages
- Art. 38 - void marriages by reason of public policy.
Art. 26. xxx
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry under Philippine law. (As amended by
EO No. 227, prom. July 17, 1987) (Family Code.)
Balane: This is a qualified divorce law.

Q: Would the ruling in Tenchavez still be the same, even after the amendment introduced in Art. 26
by EO 227?
A: Yes, bec. the Tenchavez spouses are Filipinos. Art. 26 par. 2 does not apply to them.
Note in the the Van Dorn v. Romillo ruling, we are not told, at whose instance the divorce was
obtained.
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Requisites of Art. 26 par. 2:

(1) one of the spouses is a foreigner
(2) a divorce decree is obtained
(3) the divorce decree is obtained at the instance of the foreign spouse
(4) under the divorce decree, the foreigner-spouse acquires the capacity to remarry.
Q: Suppose at the time of the marriage, both spouses are Filipinos. Afterwards, one becomes
naturalized. Would Art. 26 par. 2 still be applied?
Baviera: This refers to the formal or extrinsic requirements only, namely (1) authority of the
solemnizing officer; (2) valid marriage license; (3) marriage ceremony.
As to the essential or intrinsic requirements, namely (1) legal capacity and (2) consent, these must
be complied with in accordance with the national law of the parties.
Art. 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 different formalities for their
extrinsic validity. (Family Code.)
(not in Baviera's outline)

Art. 18. In matters which are governed by the Code of Commerce and special laws,
their deficiency shall be supplied by the provisions of this Code.
Tolentino: Exceptions to Article.-- The Code does not observe the principle contained in this
article w/ consistency. There are special cases expressly provided in the Code itself, where the
special law of the Code of Commerce is made only suppletory, while the NCC is made primary
law. For Example, Art. 1766 provides that: "In all matters not regulated by this Code, the rights
and obligations of common carriers shall be governed by the Code of Commerce and by special
laws."
HUMAN RELATIONS
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Art. 19. 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 good faith.
Principle of abuse of rights
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the damage.
GLOBE MACKAY V. CA [176 S 778 (1989)] - While an employer has the right to dismiss an employee
who was involved in anomalous transactions, the right of dismissal should not be exercised in an abusive
manner, such as by making accusations of being a crook, forcing him to take a forced leave, threat ening to
file a hundred suits against him. Hence, the employer is liable for damages.
Art. 21 was adopted to remedy the countless gaps in the statutes, which leave so many victims of
moral wrongs helpless, even though they have actually suffered material and moral injury. This article
should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to provide for specifically in the statutes.
VELAYO V. SHELL [54 O.G. No. 46 p. 7303 (1956)] - Where the creditors of an insolvent company entered into a memorandum of agreement as to the manner of disposal of the only asset of the company the
proceeds to be distributed fairly among them, the act of the a member of the committee to implement such
agreement, in assigning its credit to a sister company in the U.S. which filed a collec tion suit and attached
the plane, constitutes bad faith and a betrayal of confidence in violation of Art. 19 as implemented by Art.
21.
PNB V. CA [83 S 237 (1978)] - While the Board of Directors of PNB had the power to approve the lease
of the sugar quota allotments of its debtor, its act in unduly refusing to grant such approval when the
terms of the lease were reasonable constitutes a violation of Art. 21 of the Civil Code.
Baviera: The Board of Directors should have been held liable, not the bank.
BALANE V. YU CHIANG [54 O.G. No. 3, p. 687 (1957)] - Where a man by virtue of a notarized
agreement, convinced the 19-year old daughter of petitioner, to live with him, and later on left her when
she got pregnant, he can be made to recognize his child and is liable for damages under Art. 21 of the
Civil Code for inducing the daughter to live with him in a manner contrary to morals and good customs.
Under the New Civil Code, it is not necessary that there be a breach of promise of marriage in
order that the plaintiff in an action for acknowledgment of natural child and support may recover
damages. The reason given by the Code Commission is that in case a girl is already of age and was
seduced, no action for Seduction under the RPC would lie, however, the girl and her family would have
suffered incalculable damages, which must be compensated.
Art. 22. Every person who through an act of performance by another, or any other
means, acquires or comes into possession of something at the expense of the latter without just
or legal ground, shall return the same to him.
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Art. 23. Even when an act or event causing 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 benefitted.
Art. 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.
Art. 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.
Art. 26. Every person shall respect the dignity, personality, privacy 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.
LAGUNZAD V. GONZALES [92 S 476 (1979)] - An agreement whereby a film producer would pay the
heirs and relatives of Moises Padilla a sum of money inorder to depict them in the movie which he
included a love interest angle depicting the mother and a sweetheart, is not a violation of freedom of ex pression. While it is true that the film producer purchased the rights to the book entitled "The Moises
Padilla Story," that did not dispense with the need for prior consent and authority from the deceased's
heirs to portray publicly episodes in said deceased's life and in that of his mother and the members of his
family. As held in Schuyler v. Curtis, "a privilege may be given the surviving relatives of a deceased
person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings
and to prevent a violation of their own rights in the character and memory of the deceased."
"Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy.
The right to invade a person's privacy to disseminate public information does not extend to fictional or
novelized representation of a person, no matter how public a figure he or she may be. In the case at bar,
while it is true that petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner
admits that he included a little romance in the film because without it, it would be a drab story of torture
and brutality."
"The right of freedom of expression, indeed, occupies a preferred position in the hierarchy of
civil liberties. However, it is limited by the clear and present danger rule and the balancing of interest test.
The latter requires the court to take conscious and detailed consideration of the interplay of interest
observable in a given situation. The interests observable in this case are the right to privacy and freedom
of expression. Taking into account the interplay of those interest, we hold that under the particular
circumstances presented, and considering the obligations in the contract, the validity of such contract
must be upheld because the limits of freedom of expression are reached when expression touches upon
matters of essentially private concern."
AYER V. CAPULONG [160 S 865 (1988) En Banc] - Senator Enrile cannot object to his inclusion in
the movie on the EDSA Revolution by invoking his right to privacy. "The right of privacy or "he right to
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be let alone" is not an absolute right. A limited intrusion into a person's privacy has long been regarded as
permissible where that person is a public figure and the information sought to be elicited from him or to
be published about him constitutes matters of a public character. Succinctly put, the right of privacy
cannot be invoked to resist publication and dissemination of matters of public interest. The right of
priivacy of a "public figure" is necessarily narrower than that of an ordinary citizen."
As distinguished from Lagunzad v. Gonzales, which involved a film biography necessarily
including at least his immediate family, the subject matter of the move in this case is one of public concern
and does not relate to the individual or public life of Senator Enrile.
Art. 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.
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in
labor through the use of force, intimidation, deceit, machinations, or any other unjust,
oppressive or high-handed method shall give rise to a right of action by the person who
thereby suffers damages.
Art. 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 judgment 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.
MENDOZA V. ALCALA [2 S 1032 (1961)] - Where the accused in a criminal case for estafa is acquitted
on the ground that the prosecution has not proven his guilt beyond reasonable doubt, a civil action based
on the same transaction may prosper. (1) The conclusion that his guilt has not been proven beyond
reasonable doubt is equivalent to one of reasonable doubt. Thus, a civil action may prosper. (2) Under the
Rules of Court, the extinction of the penal action does not carry with it extinction of civil unless there is a
declaration that fact from which civil is based did not exist. (3) Al though no reservation was made, the
declaration in the criminal case that the obligation is purely civil amounts to a reservation of the civil
action in favor of the offended party. (4) Furthermore, since estafa involves fraud, an independent civil
action may prosper under Art. 33 of the Civil Code.
MENDOZA V. ARRIETA [91 S 113 (1979)] - Where in a multiple highway accident involving a truck
which hit a jeep which then hit a Mercedes Benz coming from the opposite direction, two criminal actions
for reckless imprudence was filed against the drivers of the truck and jeep, and the driver of the truck was
found guilty and the driver of the jeep acquitted, a civil action for damages against the owner of the truck
would prosper as there is no res judicata, the parties and causes of action being different. Furthermore,
under Art. 31 of the Civil Code, When the civil action is based on an obligation not arising from crime,
the civil action may proceed independently of the criminal proceedings regardless of result of the latter.
Citing Garcia v. Florido,
"As we have stated at the outset, the same negligent act causing damages may produce a civil
liability arising from crime or create an action for quasi-delict or culpa extra-contractual. The former is a
violation of the criminal law, while the latter is a distinct and independent negligenc, having always had
its own foundation and individuality. Some legal writers are of the view that in accordance with Article
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31, the civil action based upon quasi-delict may proced independently of the criminal proceeding for
criminal negligence and regardless of the result of the latter. Hence, the proviso in Section 2 of Rule 111
(requiring reservation of civil actions) with reference to Articles 32, 33, and 34 of the Civil Code, is
contrary to the letter and spirit of the said articles, for these articles were drafted and are intended to
constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111. The proviso,
which is procedura, may also be regarded as an unauthorized amendment of substantive law, Articles 32,
33 and 34 of the Civil Code, which do not provide for the reservation required in the proviso."
However, a civil action for damages against the owner-driver of the jeep would not prosper
because civil liability arising from crime co-exists with criminal liability in criminal cases. Hence, the
offended party had the option to prosecute on civil liability arising from crime or from quasi-delict. His
active participation in the criminal case implies that he opted to recover the civil liability arising from
crime. Hence, since the acquittal in the criminal case, which was not based on reasonable doubt, a civil
action for damages can no longer be instituted.
REPUBLIC V. BELLO [120 S 203 (1983)] - Where a cashier was acquitted in a Malversation case on
the ground that his guilt was not proven beyond reasonable doubt, since he spent the money for a legiti mate purpose, a civil case for the recovery of the amounts will prosper since there was no declara tion in
the criminal case that the facts from which the civil action might arise did not exist.
PADILLA V. CA [129 S 558 (1990)] - Where in the complaint for Grave Coercion against the mayor and
policemen, they were acquitted on the ground that their guilt has not been proven beyond reasonable
doubt, such acquittal will not bar a civil case for damages arising from the demolition of petition er's
market stalls. The acquittal on the ground that their guilt has not been proven beyond reasona ble doubt
refers to the element of Grave Coercion and not to the fact of that the stalls were not demolished. Under
the Rules of Court, the extinction of penal action carries with it the extinction of civil only if there is a
declaration that facts from which civil may arise did not exist. Also, Art. 29 of the Civil Code does not
state that civil liability can be recovered only in a separate civil action. The civil liability can be recovered
either in the same or a separate action. The purpose of recovering in the same action is to dispense with
the filing of another civil action where the same evidence is to be presented, and the unsettling
implications of permitting reinstituttion of a separate civil action. However, a separate civil action is
warranted when (1) additional facts are to be established; (2) there is more evidence to be adduced; (3)
there is full termination of the criminal case and a separate complaint would be more efficacious than a
remand. Hence, CA did not err in awarding damages despite the acquittal.
REYES V. SEMPIO-DY [141 S 208 (1986)] - Where the private complainant in an information for
intriguing against honor was represented by a private prosecutor but defendant pleaded guilty and was
sentenced to a fine, a civil case damages is will prosper despite the lack of reservation and the intervention
of a private prosecutor, because there was no opportunity to present evidence by reason of the unexpected
plea of guilty.
Roa v. De La Cruz is not applicable because in that case, there was a full-blown hearing where a
private prosecutor participatedly actively but failed to present evidence to support the claim for damages.
Hence, a civil action could not prosper. Furthermore, under Art. 33, there is no require ment for
reseervation to file an independent civil action arising from defamation.
MAXIMO V. GEROCHI [144 S 326 (1986)] - Where the accused was acquitted of Estafa on the ground
of failure to establish guilt beyond reasonable doubt and that if accused had any obligation, it was civil in
nature, the court can award civil liabity in the same case without need of the institution of a separate civil
action. Citing Padilla v. CA, the court may acquit and at the same time order payment of civil liability in
the same case. The rationale is that there is no reason to require a separate civil action where the facts to
be proved in the civil case have been proven in the criminal case, and due process has already been
accorded to the accused, and to prevent needless clogging of court dockets and unnecessary duplication of
litigation.
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Art. 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.
Art. 31. When the civil action is based on 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.
Art. 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 peaceable assembly to petition the Government for
redress of grievances;
(14) The right to be 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 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.
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.
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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.
Art. 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.
Art. 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.
Rule 111, Sec. 2. Institution of separate civil action. - Except in the cases provided for in
Section 3 hereof, after the criminal action has been commenced, the civil action which has been
reserved cannot be instituted until final judgment has been rendered in the criminal action.
(a) Whenever the offended party shall have instituted the civil action (arising from the crime
- Baltic) as provided for in the first paragraph of section 1 hereof before the filing of the crimi nal
action is subsequently commenced, the pending civil action shall be suspended, in whatever stage
before final judgment it may be found, until final judgment in the criminal action has been rendered.
However, if no final judgment has been rendered by the trial court in the civil action, the same may
be consolidated with the criminal action upon application with the court trying the crimi nal action.
If the application is granted, the evidence presented and admitted in the civil action shall be deemed
automatically reproduced in the criminal action, without prejudice to the admission of additional
evidence that any party may wish to present. In case of consolidation, both the criminal and the civil
actions shall be tried and decided jointly.
(b) Extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration (need not be an express declaration- Baltic) in a final judgment
that the fact from which the civil might arise did not exist. (Rules of Court.)
ABELLANA V. MARAVE [57 S 106 (1974)] - Where accused appealed his conviction by the City Court
of Physical injuries thru reckless imprudence to the CFI, and while the case was on appeal, the heirs of the
victim filed an independent civil action against him and his employer in another branch, the civil action
will prosper despite the lack of reservation. The restrictive interpretation of the Rules of Court provision
on civil actions requiring reservation as to include the independent civil action under Art. 33 does not only
result in the emasculation of the civil code provision but also gives rise to a serious constitutional
question. Article 33 is quite clear. "The right to proceed independently of the criminal prosecution under
Article 33 of the Civil Code is a SUBSTANTIVE RIGHT, not to be frittered away by a construction that
could render it nugatory, if through oversight, the offended parties failed at the initial stage to seek
recovery for damages in a civil suit. The grant of power to this Court, both in the present constitution and
under the 1935 Charter, does not extend to any diminution, increase or modification of substantive right.
ESCUETA V. FANDIALAN [61 S 278 (1974)] - Where the cause of action for physical injuries accrued
in 1952, and a criminal action for Frustrated Homicide was filed in 1955 and a reservation of civil action
was made, and a civil action for damages was filed in 1956 but was dismissed for lack of interest, when
the civil action was refiled in 1968, the said civil action has already prescribed. Since there was a
reservation of the civil action, the prescription period for an action based on tort applies, which is 4 years
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from cause of action [Art. 1146 (1)]. Furthermore, no reservation was even required since it is an
independent civil action under Art. 33.
Had no reservation been made, the civil case would have been impliedly instituted with the
criminal, and since accused was convicted in 1955, an action to enforce judgment would only expire after
ten years from judgment [Art. 1144 (3)].
Thus, where the offended party reserves the right to file a separate action for damages arising
from physical injuries, the cause of action prescribes in four years, not ten years.
MADEJA V. CARO [126 S 295 (1983)] - Where accused was charged with Homicide thru reckless
imprudence, pending the criminal action, an independent civil action under Art. 33 may proceed
independently of the criminal case. Citing Carandang v. Santiago [97 P 94 (1955)], "The term "physical
injuries" is used in the generic sence, not the crime of physical injuries defined in the Revised Penal Code.
It includes not only physical injuries but consummated, frustrated and attempted homicide." Defamation
and fraud are also used in their generic sense because there are no specific provisions in the Revised Penal
Code using these terms as means of offenses defined therein.
Art. 35. When a person, claimining 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 ground 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.
Art. 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.
Rule 111, Sec. 5. Elements of prejudicial question. - The two (2) essential elements of a
prejudicial question are:
(a) the 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.
(Rules of Court.)
Rule 111, Sec. 6. Suspension by reason of prejudicial question. - A petition for suspension of
the criminal action based upon the pendency of a prejudicial question in a civil action may be filed
in the office of the fiscal or the court conducting the preliminary investiga tion. When the criminal
action has been filed in court for trial, the petition to suspend shall be filed in the same criminal
action any time before the prosecution rests. (ibid.)
Bigamy - Art. 349, RPC. Contracting of second or subsequent marriage:

a. before legal dissolution of first marriage
b. before declaration of presumptive death of absent spouse.
MERCED V. DIAZ [109 P 156 (1960)] - Where the husband files a civil case for annulment of the
second marriage on the ground of lack of consent, and the second wife subsequently files a criminal case
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for bigamy against him, the civil case for annulment is a prejudicial question to be determined before the
criminal case can proceed. Consent is an essential element of a valid marriage. Without consent, the
marriage is void. But the question of invalidity cannot ordinarily be decided in the criminal action for
bigamy but in a civil action for annulment. Since the validity of the second marriage, subject of the action
for bigamy, cannot be determined in the criminal case, and since prosecution for bigamy does not lie
unless the elements of the second marriage appear to exist, it is necessary that a decision in a civil action
to the effect that the second marriage contains all the essentials of a marriage must first be secured.
LANDICHO V. RELOVA [22 S 731 (1968)] - Where the first wife filed a criminal action for bigamy
against the husband, and later the second wife filed a civil case for annulment of the marriage on the
ground of force and intimidation, and the husband later files a civil case for annulment of marriage
against the first wife, the civil cases are not prejudicial questions in the determination of his criminal
liability for bigamy, since his consent to the second marriage is not in issue.
"The mere fact that there are actions to annul the marriages entered into by accused in a bigamy
case does not mean that "prejudicial questions" are automatically raised in civil actions as to warrant the
suspension of the criminal case. In order that the case of annulment of marriage be considered a
prejudicial question to the bigamy case against the accused, it must be shown that petitioner's consent to
such marriage must be the one that was obtained by means of duress, force and intimidation to show that
his act in the second marriage must be involuntary and cannot be the basis of his conviction for the crime
of bigamy. The situation in the present case is markedly different. At the time the petitioner was indicted
for bigamy, the fact that two marriage ceremonies had been contracted appeared to be indisputable. And it
was the second spouse, not the petitioner who filed the action for nullity on the ground of force, threats
and intimidation. And it was only later that petitioner as defendant in the civil action, filed a third party
complaint against the first spouse alleging that his marriage with her should be declared null and void on
the ground of force, threats and intimidation. Assuming the first marriage was null and void on the
ground alleged by petitioner, that fact would not be material to the outcome of the criminal case. Parties
to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted
to the judgment of a competent court and only when the nullity of the marriage is so declared can it be
held as void, and so long as there is no such declaration, the presumption is that the marriage exists.
Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first
marriage assumes the risk of being prosecuted for bigamy."
PRESUMPTION OF SIMULTANEOUS DEATH

Art. 43. If there is a 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 proof, it is presumed that they died at the same time
and there shall be no transmission of rights from one to the other.
Tolentino: Application of Article.-- This article applies only when the question of survivorship
involves persons "who are called to succeed each other." Hence, it cannot apply to other cases w/c
do not involve succession.
When the persons involved would succeed each other, however, then this article applies,
whether the death be actual or merely presumed from absence or other circumstances.
Are Rules of Court Repealed?-- There is every indication that the Code Commission intended to
repeal the presumptions on survivorship under the Rules of Court, because the presumptions laid
down therein are sometimes absurd and mere guesswork. [I Tolentino 176]
Compare with Rule 131, Sec. 5 (jj), (kk)
PRESUMPTION OF PRIORITY OF DEATH (Survivorship Agreement)
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Rule 131, Sec. 5 (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
the probabilities resulting from the 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.
(kk) That if there is a 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 proof, they shall be considered to have died at the same time. (Rules of
Court.)
BALANE CASE:
JOAQUIN V. NAVARRO [93 P 257] - F: On 2/6/45, while the battle for the liberation of Mla. was
raging, the spouses Joaquin Navarro, Sr. (JN, Sr.) and Angela Joaquin (AJ), together w/ their 3 daughters
and their son Joaquin, Jr. (JN, Jr.) and the latter's wife, sought refuge in the ground floor of the building
known as the German Club. During their stay, the bldg. was packed w/ refugees, shells were exploding
around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside
the bldg, especially those who were trying to escape. the 3 daughters were hit and fell on the ground near
the entrance; and JN, Sr. and his son decided to abandon the premises to seek a safer haven. They could
not convince AJ, who refused to join them, and so JN, Sr. and his son, JN, Jr. and the latter's wife dashed
out of the burning edifice. As they came out, JN, Jr. was shot in the head by a Japanese soldier and
immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets.
Minutes later, the Club, already on fire, collapsed, trapping many people, presumably including AJ. JN,
Sr., Mrs. JN, Jr. managed to reach an air raid shelter nearby and stayed there for about 3 days, until they
were forced to leave bec. the shelling tore it open. They fled but unfortunately met Japanese patrols who
fired at them, killing the two.
The trial court found the deaths to have occurred in this order: 1st. The Navarro girls; 2nd. JN,
Jr.; 3rd. AJ; 4th. JN, Sr. The CA found that the deaths occurred in the following order: 1st. The
Navarro girls; 2nd. AJ; 3rd. JN, Jr.; 4th JN, Sr.
HELD: Where there are facts, known or knowable, from w/c a rational conclusion can be made,
the presumption (in the Rules of Court) does not step in, and the rules of preponderance of
evidence controls.
Are there particular circumstances on record from w/c reasonable inference of
survivorship bet. AJ and her son can be drawn? Is Francisco Lopez' (the sole witness) testimony
competent and sufficient for the purpose?
It is our opinion that the testimony contains facts quite adequate to solve the problem of
survivorship bet. AJ and JN, Jr. and keep the statutory presumption out of the case. It is believed
that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived
at, namely: that JN, Jr. died before his mother.
While the possibility that the mother died before the son can not be ruled out, it must be
noted that this possibility is entirely speculative and must yield to the more rational deduction from
proven facts that it was the other way around. JN, Jr., was killed, while running, in front of, and
15 meters from the Club. Still in the prime of life, 30, he must have negotiated that distance in 5
seconds or less, and so died w/in that interval from the time he dashed out of the bldg. AJ could
have perished w/in those 5 or fewer seconds, but the probabilities that she did seem very remote.
According to Lopez' testimony, the collapse of the club occurred about 40 minutes after
JN, Jr. died, and it was the collapse that killed AJ. The CA said that the interval bet. JN, Jr.'s death
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and the breaking down of the edifice was "minutes." Even so, it was much longer than 5 seconds,
long enough to warrant the inference that AJ was still alive when her son expired.
The CA mentioned several causes, besides the bldg's collapse, by which AJ could have
been killed. All these causes are speculative. xxx Nor was AJ likely to have been killed by falling
beams bec. the bldg. was made of concrete and its collapse, more likely than not, was sudden. As
to fumes, these do not cause instantaneous death; certainly, not w/in the brief space of 5 seconds
bet. her son's departure and his death.
It will be said that all this is indulging in inferences that are not conclusive. Sec. 69 (ii) of
R 123 does not require that the inference necessary to exclude the presumption therein provided be
certain. It is the "particular circumstances from w/c it (survivorship) can be inferred" that are
required to be certain as tested by the rules of evidence. In speaking of inference the rule can not
mean beyond doubt, for "inference is never certainty, but it may be plain enough to justify a finding
of fact."
In conclusion, the presumption that AJ died before her son is based purely on surmises,
speculations, or conjectures w/o any sure foundation in evidence. The opposite theory is deduced
from established facts w/c, weighed by common experience, engender the inference as a very strong
probability. Gauged by the doctrine of preponderance of evidence by w/c civil cases are decided,
this inference ought to prevail.
Balane: In Sec. 5 (jj) of R 131, there is no presumption of simultaneity but of survivorship.
Q: Did the court in Joaquin v. Navarro rule w/c of the 2 presumptions prevail over the
other? Did it apply either presumtion?
A: No to both questions.
The presumption applies only if there is no evidence as to who died first. If there are
enough facts to go by, you do not use either presumption. Art. 43 as well as Sec. 5 (jj) of R 131
cannot be applied if there are facts to go by.
In questions other than succession (like insurance, resolutory conditions, reserva troncal,
donation inter vivos), apply Rule 131, Sec. 5 (jj)
The case did not resolve the issue as to w/n there is a conflict bet. Art. 43 and R 131, Sec.
5 (jj) of the ROC. To reconcile the two, the following rules may be of help:
1. Art. 43 applies only when succession is involved; ROC [referring to Sec. 5 (jj) R 131]
applies only when 2 persons perish in the same calamity.
2. When succession is involved but the persons did not perish in the same calamity, apply
Art. 43; When the persons perished in the same calamity but succession is not involved, apply
ROC.
3. When neither element is present, neither provision will apply.
4. The conflict will arise only when succession is involved and 2 persons died in the same
calamity. In case of conflict, Art. 43 will apply (this is only an opinion.)
RAM: The 1988 Revised Rules on Evidence removed whatever conflict there was bet. the ROC
and Art. 43 of the NCC. In fact, Art. 43 is now substantially reproduced as Sec. 5 (kk) of R 131 of
the ROC.
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BOOK I
LAW ON PERSONS
Tolentino: Concept of Person.-- In a juridical sense, the term "person" is now understood as any
being, physical or moral, real or juridical and legal, susceptible of rights and obligations, or of
being the subject of legal relations. (Sanchez Roman.)
Classes of Persons.-- (1) human beings or men, called natural persons; and (2) entities formed
by the association of men, known as juridical persons, or as artificial, fictitious, abstract, or moral
persons.
Status of persons.-- The status of a person is the legal condition or class to w/c one belongs in
society; it is the legal or juridical position of the individual in society, or w/ regard to the rest of the
community.
The status of a person may be political or civil.
Civil status may be grouped into 3 classes: (a) status as a member of the society; (b)
status as member of a family; and (c) status w/ respect to the person himself.
The qualities w/c create a status are only those inherent in the person himself.
Characteristics of status.-- The status of a person is outside the commerce of man; hence, (1) it
is inalienable, (2) it is imprescriptible, (3) it cannot be the object of compromise, (4) the action to
claim it cannot be renounced, and (5) the rights arising from it cannot be exercised by creditors.
TITLE I
I. CIVIL PERSONALITY
Tolentino: Concept of Personality.-- Personality is the quality derived from being a person.
While a person is any being susceptible of rights and obligations, personality is the aptitude of that
becoming the subject, active or passive, of juridical relations.
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Characteristics.-- (1) It is not a being, but a quality of certain beings; (2) it is not a physical
element, but a juridical concept; (3) it is not an object of contract, or of possession, and cannot be
impaired by agreement; (4) it is a matter of public interest.
A. Elements
Art. 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.
Tolentino: Kinds of Capacity.-- Capacity may be (1) juridical capacity, and (2) capacity to act.
The union of these 2 forms the full civil capacity. (Balane calls the 2 the constitutive elements of
personality.)
Juridical capacity is synonymous to legal capacity and to personality. They all refer to the
aptitude for the holding and enjoyment of rights. On the other hand, capacity to act refers to the
aptitude for the exercise of rights, and is often referred to merely as "capacity."
Comparison.-- Juridical capacity (JC) is just one, indivisible, irreducible, and essentially the
same for all men; it is an inherent and ineffaceable attribute of man, and attaches to him by the
mere fact of his being a man. But capacity to act (CA) is conditional and variable. It is acquired
and may be lost. The mere existence of man is not sufficient to confer capacity to act, bec. this
capacity requires both intelligence and will; xxx Thus, JC can exist w/o CA, but the existence of
the latter implies that of the former.
Balane: JC has no degrees, either you have it or not. CA has degrees.
-----------------------------------------------------------------------------------------------JURIDICAL CAPACITY
CAPACITY TO ACT
------------------------------------------------------------------------------------------------ fitness to be the subject of legal relations
- power to do acts with legal effect
- inherent in every natural person
------------------------------------------------------------------------------------------------ lost only through death
- acquired and may be lost
- subject to restrictions: minority, etc.
-----------------------------------------------------------------------------------------------Capacity of Public Interest.-- The capacity or incapacity of persons depends upon the law and
cannot be modified, extended, or restricted by agreement. Both JC and CA are not rights, but
qualities of persons; hence, they cannot be alienated or renounced.
Art. 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.
Tolentino: Causes of Incapacity
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Minority.-- The unemancipated minor cannot enter into contracts (Art. 1327); but he may
be estopped from disavowing his contract if he has misled the other party as to his age. The SC
has held that:
xxx [T]he sale of real estate, effected by minors who have already passed the ages of puberty and
adolescence and are near the adult age, when they pretend to have already reached their majority, while in
fact they have not, is valid, and they cannot be permitted afterwards to excuse themselves from
compliance w/ the obligation assumed by them or seek their annulment. This doctrine is entirely in
accord w/ the provisions of our law on estoppel. (Mercado vs. Espiritu, 37 Phil. 215.
But there is authority to the effect that misrepresentation of an incapacitated person does
not bind him.
"xxx Misrepresentation made by a party as to his age does not estop him from denying that he
was of age or from asserting that he was under age, at the time he entered into the contract, for the breach
of w/c an action is brought. Under the principle of estoppel, the liab. resulting from misrepresentation has
its juridical source in the capacity of the person making the misrepresentation to bind himself. If the
person making the misrepresentation cannot bind himself by contract, he cannot also be bound by any
misrepresentation he may have made in connection therewith. A person entering into a contract must see
to it that the other party has sufficient capacity to bind himself." (Young vs. Tecson, 39 OG 953.)
Insanity or Imbecility.-- Insanity includes the various forms of mental disease, either
inherited or acquired, in w/c there is a perversion of the mentality, as when the person is suffering
from illusions, hallucinations, or delusions, unnatural exaltation or depression, or insane ideas of
persecution or power.
An insane person cannot make a valid will or testament (Art. 798); and he cannot validly
give consent to contracts (Art. 1327, par. 2.)
Imbecility is a defect in the quantity of mental development. The mental ages up to the
completed eighth year are included.
Deaf-Mutism.-- A deaf-mute can make a valid will, so long as its content have been
communicated or made known to him in some practicable manner (Art. 807.) But when the deafmute does not know how to read and write, he cannot give consent to contracts (1327, par. 2, and
he cannot personally accept or repudiate an inheritance (1048.)
Civil Interdiction-- This is an accessory penalty imposed upon persons who are
sentenced to a principal penalty not lower than reclusion temporal (Art. 41, RPC.) Art. 34 of the
RPC provides:
Art. 34. Civil interdiction shall deprive the offender during the time of his sentence of the
rights of parental authority, or guardianship, either as to the person or property of any ward, of
marital authority, of the right to manage his property, and of the right to dispose of such property by
any act or any conveyance inter vivos.
Prodigality.-- A spendthrift or prodigal is "a person who, by excessive drinking,

gambling, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose
himself or his family to want or suffering.
Prodigality in itself does not limit the capacity of a person to act. It seems erroneous to
include prodigality in the Art. 38 bec. as a circumstance w/c limits capacity, bec. there is no
specific provision of law w/c implements this general provision. It is not the circumstance of
prodigality, but the fact of being under guardianship, that restricts the capacity to act of the
spendthrift.
Obligations of Incapacitated Persons.-- They may have obligations arising from all sources,
except contracts. They have obligations arising from law, such as those imposed on family
relations.
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Incapacitated persons are also civilly liable for crimes committed by them, even if they are
exempted from criminal liab. (Art. 101, RPC.) They are liable for quasi-delicts, under the express
provisions of Articles 2181 and 2182.
They are liable on quasi-contracts, on the principle that nobody can unjustly enrich himself
at the expense of another.
Where necessaries are delivered to a minor or other incapacitated person, he must pay a
reasonable price therefore. (Art. 1489.)
Art. 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 by 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, eighteen years of age or over, is qualified for all acts of civil life,
except in cases specified by law.
Balane: There is a lapse in the enumeration. Art. 38 enumerates 6 circumstances limiting,
modifying or restricting capacity to act whereas Art. 39 enumerates 11. The two articles could
have been merged into one article.
Tolentino: The enumeration made here is not exclusive of other circumstances modifying capacity
to act.
Guardianship of Incompetents.-- For definition of incompetents, see Rule 93, Sec. 2, ROC,
infra.
Even w/o guardianship, persons under civil interdiction, deaf-mutes who do not know how
to read and write, and those of unsound mind, are of limited capacity. W/ respect, however, to
hospitalized lepers, prodigals, and those who cannot take care of themselves and manage their
prop., it is the fact of guardianship w/c will limit their capacity to act.
Family Relations.-- Ascendants and descendants, brothers and sisters, and collateral relatives
w/in the 4th civil degree (as cousins), cannot validly marry; their marriage would be incestuous or
against public policy and void. Husband and wife, during the marriage, cannot give donations to
each other.
Alienage.-- Citizenship may affect the right of persons in matters where the State may validly
discriminate between aliens and its citizens for reasons of public policy, w/o doing violence to the
equal protection of the laws. See constitutional provisions, infra.
Absence.-- A person is absent when he disappears from his domicile, and his whereabouts are
unknown (381.) He cannot properly administer his properties, and so another person is appointed
to administer them.
Insolvency and Trusteeship.-- When a person has been adjudicated an insolvent, he cannot
dispose of his prop. existing at the time of the commencement of the insolvency proceedings; and
no payments of prop. or credit can be made to him.
Physical condition.-- Physical incapacity to enter into the married state, or impotence, is a ground
for annulment of marriage [Art. 55(5), FC], and a person who is blind, or deaf or dumb, cannot be
a witness to the execution of a will. (820.)
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B. Restriction on Capacity to Act

1. Minority
Sec. 1. Art. 234 of EO 209, the Family Code of the Philippines, is hereby amended to read
as follows:
"Emancipation takes place by the attainment of majority. Unless otherwise provided,
majority commences at the age of eighteen years."
xxx (R.A. 6809.)
a. Civil Acts
Art. 797. Persons of either sex under eighteen years of age cannot make a will.
Art. 1489. xxx
When necessaries are sold and delivered to a minor or other person without capacity to act,
he must pay a reasonable price therefor. Necessaries are those referred to in article 290. (par. 2.)
- Baviera - basis of liability: quasi-contract

Art. 14. In case either or both of the contracting parties, not having been emancipated by a
pevious marriage, are between the ages of eighteen and twenty one, they shall, in addition to the
requirements of the preceding articles, exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or guardian, or persons having legal charge of
them, in the order mentioned. Such consent shall be manifested in writing by the interested party,
who personally appears before the proper local 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 applications for marriage license, and the affidavit,
if one is executed instead, shall be attached to said applications. (Family Code.)
b. Delicts
Art. 101. xxx
xxx
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution, in accordance with civil law.
(par. 3 thereof, Revised Penal Code.)
c. Quasi-Delicts
Art. 2182. If the minor or insane person causing damage has no parents or guardian, the
minor or insane person shall be answerable with his own property in an action against him where a
guardian ad litem shall be appointed.
2. Insanes and Imbeciles

a. Civil Acts
Art. 1323. An offer becomes ineffective upon the death, civil interdiction, insanity, or
insolvency of either party before acceptance is conveyed.
Art. 1327. The following cannot give consent to a contract:
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(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not know how to write.
Art. 1399. When the defect of the contract consists in the incapacity of one of the parties,
the incapacitated person is not obliged to make any restitution except insofar as he has been
benefited by the thing or price received by him.
b. Delicts & Quasi-Delicts

Art. 101. xxx
xxx
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution, in accordance with civil law.
(par. 3 thereof, Revised Penal Code.)
Art. 2182. If the minor or insane person causing damage has no parents or guardian, the
minor or insane person shall be answerable with his own property in an action against him where a
guardian ad litem shall be appointed.
3. Deaf-Mutes
Art. 1327. The following cannot give consent to a contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not know how to write.
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be witnesses to the execution of a will mentioned in
article 805 of this Code.
4. Prodigals
Rule 92, Sec. 2. Meaning of word "incompetent".-- Under this rule, the word "incompetent"
includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals,
deaf and dumb who are unable to read and write, those who are of unsound mind, even though they
have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak
mind, and other similar causes, cannot, without outside aid, take care of them selves and manage
their property, becoming thereby an easy prey for deceit and exploitation. (Rules of Court.)
5. Civil Interdiction
Art. 34. Civil interdiction. - Civil interdiction shall deprive the offender during the time of
his sentence of the rights of parental authority, or guardianship, either as to the person or property
of any ward, of marital authority, of the right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos. (Revised Penal Code.)
Art. 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 it
civil interdiction;
xxx. (Family Code.)
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Art. 142. The administration of all classes of exclusive property of either spouse may be
transferred by the court to the other spouse: (3) When one spouse is sentenced to a penalty which
carries with it civil interdiction;
xxx. (Family Code.)
6. Insolvency
Sec. 70. If any debtor, being insolvent, or in contemplation of insolvency, within thirty days
before the filing of a petition by or against him, with a view to giving a preference to any creditor or
person having claim against him or who is under any liability for him, procures any part of his
property to be attached, sequestered, or seized on execution, or makes any payment, pledge,
mortgage, assignment, transfer, sale, or conveyance of any part of his property, either directly or
indirectly, absolutely or conditionally, to anyone, the person receving such payment, pledge,
mortgage, assignment, transfer, sale or conveyancr or to be benefited thereby, or by such attachment
or seizure, having reasonable cause to believe that such debtor is insolvent, and that such
attachment, sequestration, seizure, payment, pledge, mortgage, conveyance, transfer, sale, or
assignment is made with a view to prevent his property from coming to his assignee in insolvency, or
to prevent the same from being distributed ratably among his creditors, or to defeat the object of, or
in any way hinder, impede, or delay the operation of or to evade any of the provisions of this Act,
such attachment, sequestration, seizure, payment, pledge, mortgage, transfer, sale, assignment, or
conveyance is void, and the assignee, or the receiver may recover the property or the value thereof,
as assets of such involvent debtor. If such payment, pledge, mortgage, conveyance, sale, assignment,
or transfer is not made in the usual and ordinary course of business of the debtor, of if such seizure is
made under a judgment which the debtor has confessed or offered to allow, that fact shall be prima
facie evidence of fraud. Any payment, pledge, mortgage, conveyance, sale, assignment, or transfer
of property of whatever character made by the insolvent within one month before the filing of a
petition in insolvency by or against him, except for a valuable pecuniary consideration made in good
faith, shall be void. All assignments, transfers, conveyances, mortgages, or encumbrances of real
estate shall be deemed, under this section, to have been made at the time the instrument conveying
or affecting such realty was filed for record in the office of the Register of Deeds of the province or
city where the same is situated. (Insolvency Law, R.A 1956.)
Art. 1830. Dissolution (of partnership) is caused:
xxx
(6) By the insolvency of any partner or of the partnership;
xxx
Art. 1919. Agency is extinguished:
xxx
(3) By the death, civil interdiction, insanity or insolvency of the principal or of the agent;
xxx
Art. 2238. So long as the conjugal partnership or absolute community subsists, its property
shall not be among the assets to be taken possession of by the assignee for the payment of the
insolvent debtor's obligations, except insofar as the latter have redounded to the benefit of the
family. If it is the husband who is insolvent, the administration of the conjugal partnership or
absolute community may, by order of the court, be transferred to the wife or to a third person other
than the assignee.
7. Alienage
Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all other
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natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. Such activities may be directly
undertaken by the State, or it may enter into co-production, joint venture, production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a period of not exceeding twenty-five
years, renewable for not more than twenty-five years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers
in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development, and use of local scientific and technical
resources.
The President shall subsequently notify the Congress of every contract entered into in
accordance with this provisions within thirty days from its execution. (Constitution.)
Art. XII, Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred
or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of
the public domain. (ibid.)
Art. XII, Sec. 8. Notwithstanding the provisions of Section 6 of this Article, a natural-born
citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands
subject to limitations provided by law. (ibid.)
Art. XII, Sec. 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines at least sixty per centum of whose capital is
owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character
or for a longer period than fifty years. Neither shall any such franchise or right be granted except
under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the
common good so requires. The State shall encourage equity participation in public utilities by the
general public. The participation of foreign investors in the governing body of any public utility shall
be limited to their proportionate share in its capital, and all executive and managing officers of such
corporation or association must be citizens of the Philippines. (ibid.)
Art. XVI, Sec. 11. (1) The ownership and management of mass media shall be limited to
citizens of the Philippines, or to corporations, cooperatives or associations, wholly owned and managed
by such citizens.
The Congress shall regulate or prohibit monopolies in commercial mass media when the
public interest so requires. No combination in restraint of trade or unfair competition therein shall
be allowed.
(2) The advertising industry is impressed with public interest, and shall be regulated by law
for the protection of consumers and the promotion of the general welfare.
Only Filipino citizens or corporations or associations at least seventy per centum of the
capital of which is owned by such citizens shall be allowed to engage in the advertising industry.
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The participation of foreign investors in the governing body of entities in such industry shall
be limited to their proportionate share in the capital thereof, and all the executive and managing
officers of such entities must be citizens of the Philippines. (ibid.)
Art. XIV, Sec. 4. (2) Educational institutions, other than those established by religious
groups and mission boards, shall be owned solely by citizens of the Philippines, or corporations or
associations at least sixty per centum of the capital of which is owned by such citizens. The Congress
may, however, require increased Filipino equity participation in all educational institutions.
The control and administration of all educational institutions shall be vested in Filipino
citizens.
No educational institution shall be established exclusively for aliens and no group of aliens
shall comprise more than one-third of the enrolment in any school. The provisions of this subsection
shall not apply to schools established for foreign diplomatic personnel and their dependents and,
unless otherwise provided by law, for other temporary foreign residents. (ibid.)
II. KINDS OF PERSONS

A. Natural Persons
1. Commencement of Personality
Art. 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.
Art. 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.
Tolentino: Personality from Birth.-- Birth means the removal of the foetus from the mother's
womb.
Conceived Child.-- The personality of the conceived child has 2 characteristics: (1) it is
essentially limited, bec. it is only for purposes favorable to the child, and (2) it is provisional or
conditional, bec. it depends upon the child being born alive later, such that if it is not born alive, its
personality disappears as if it had never existed.
Period of Conception.-- Legally, in a normal child, the period of conception is the first 120 days
of the 300 days preceding the birth of the child.
The following provisions of the NCC are relevant:
Art. 742. Donations made to conceived and unborn children may be accepted by those
persons who would legally represent them if they were already born.
Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living
at the moment the succession opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable of succeeding
provided it be born later under the conditions prescribed in article 41.
BALANE/ BAVIERA CASE:
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GELUZ V. CA [2 S 801 (1961)] - F: Nita Villanueva came to know the defendant (Antonio Geluz)
for the first time in 1948-- thru her aunt. In 1950, she became preganant by her present husband before
they were legally married. During to conceal her pregnancy from her parent, she had herself aborted by
def. After the marriage w/ the pltff., she again became pregnant. As she was employed in the COMELEC
and her pregnancy proved to be inconvenient, she had herself aborted again by def. in Oct 1953. Less
than 2 years later, she again became pregnant. On 2/21/55, she again repaired to the def's clinic. Nita
was again aborted of a 2-month old foetus, in consideration of the sum of P50.
It is the third and last abortion that constitutes pltff's basis in filing this action and award of
damages The CA and the trial court predicated the award of damages upon the provisions of the initial
par. of Art. 2206 of the NCC.
RULING: This award, we believe, to be error for the said art., in fixing an award for the
death of a person, does not cover the case of an unborn foetus that is not endowed w/ personality.
RATIO: Parents of unborn foetus cannot sue for damages on its behalf. A husband of a
woman who voluntarily procured her abortion could not recover damages from the physician who
caused the same. (1) Since an action for pecuniary damages on account of personal injury or death
pertains primarily to the injured, no such right of action could derivatively accrue to the parents or
heirs of an unborn child. In fact, even if a cause of action did accrue on behalf of the unborn child,
the same was extinguished by its pre-natal death, since no transmission to anyone can take place
from one that lacked juridical personality (or juridical capacity, as distinguished from capacity to
act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato
habetur) under Article 40 of the Civil Cod, because that same article expressly limits such
provisional personality by imposing the condition that the child should be subsequently born alive:
"provided it be born later with the condition specified in the following article." In the present case,
there is no dispute that the child was dead when separated from its mother's womb.
(2) This is not to say that the parents are not entitled to collect any damages at all. But
such damages must be those inflicted directly upon them, as distinguished from the injury or
violation of the rights of the deceased, his right to life and physical integrity. Because the parents
cannot expect either help, support or services from an unborn child, they would normally be limited
to moral damages for the illegal arrest of the normal development of the spes hominis that was the
foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their
parental expectations (Art. 2217, CC), as well as to exemplary damages, if the circumstances
should warrant them (Art. 2230, CC). But in this case, there is no basis for an award of moral
damages, evidently because the husband's indifference to the previous abortions clearly indicates
that he was unconcerned with the frustration of his parental hopes and affection.
Art. 41. For civil purposes, the foetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the foetus had an intrauterine 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.
Tolentino: Separation from Mother.-- This is produced by the cutting of the umbilical cord,
whether the removal takes place naturally or by surgical operation.
Alive at Birth.-- The duration of extra-uterine life is immaterial; for acquisition of juridical
personality, it is enough that the child lives even for an instant.
Test of Life.-- The general opinion is that independent life required for juridical
personality can be shown only by complete respiration. The cry of the child, although it is not a
necessary sign of life, is evidence that it has acquired complete respiration. Another indication of
complete respiration is the floating of the lungs when placed in water; this means that air has
penetrated into the lungs by breathing.
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Viability Not Required.-- Viability means that the child is capable of living, and this is
determined by the extent of the development of its organs.
Premature Birth.-- In this case, if the child does not live 24 hours completely separated from the
mother's womb, it does not acquire juridical personality. This is an absolute requirement for
feotuses w/c have an intrauterine life of less than 7 mos. (Balane quoting Manresa and JBL.)
"The aborted creature does not reach the category of a natural person and consequently is not born
in the contemplation of law." (Geluz v. CA, supra.)
This is so, even if the child is killed before the period lapses and it can be proved that it could have
survived that period if it had not been prevented by the wilful act of another. On the other hand,
juridical personality is acquired even if the survival for 24 hours is caused only by medical or
scientific means w/o w/c the child would have died before the lapse of that period.
Balane: Ouline of Articles 40 & 41
1. For civil personality to be acquired, one must be born.-- A foetus is born after it is
completely separated from the mother's womb w/c is produced by the cutting of the umbilical cord;
after the separation, the child now survives by itself.
There was an additional requirement in the OCC: only that foetus is considered born w/c
has a "uniform form." This has been taken out in the NCC.
The question of determining the exact duration of intrauterine life is a problem even
medical science is not equipped to answer as of the moment.
2. Once birth occurs, personality for favorable purposes retroacts from the moment of
conception.-- The retroactivity rule is qualified-- only for purposes favorable to the child.
2. Extinguishment
a. Contracts
Art. 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.
Tolentino: Natural Death.-- This art. refers to natural or physical death, bec. this is the only kind
of death recognized by present legislation. The law does not recognize the so-called "civil death,"
known to legislation in the past, by virtue of w/c a man who was alive was considered dead for all
purposes bec. of a conviction for crime or of the taking of a religious profession.
Balane: Physical death and legal death are the same.
The following provisions of the NCC are relevant:
Art. 777. The rights to the succession are transmitted from the moment of death of the
decedent.
Art. 776. The inheritance includes all the property, rights and obligations of a person which
are not extinguished by his death.
Art. 1919. Agency is extinguished:
xxx
(3) By the death, civil interdiction, insanity or insolvency of the principal or of his agent.
xxx
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Art. 1830. Dissolution (of partnership) is caused:
xxx
(5) By the death of any partner.
xxx
Art. 603. Usufructuary is extinguished:
(1) By the death of the usufructuary, unless a contrary intention clearly appears;
xxx.
Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in
case where the rights and obligations arising from the contract are not transmissible by their nature,
or by stipulation or by provision of law. The heir is not liable beyond the value of the property he
received from the decedent.
b. Criminal Liability
Art. 89. How criminal liability is totally extinguished. - Criminal liability is totally
extinguished:
(1) By the death of the convict, as to the personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final judgment.
B. Juridical Persons
Art. 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 law; 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 the law grants a juridical personality, separate and distinct from that of each
shareholder, partner or member.
Balane: A juridical person is an organic unit resulting from a group of persons or mass or
property to w/c the State grants or recognizes personality and capacity to hold patrimonial rights
independent of those of component members. (quoting Ruggiero.)
BALANE CASE:
BARLIN V. RAMIREZ [7 P 41] - F: The def., Ramirez, having been appointed by the pltff parish
priest, took possession of the church on 7/5/01. He administered if as such under the orders of his
superiors until 11/14/02. His successor having been then appointed, the latter made a demand on this def.
for the delivery to him of the church, convent, and cemetery, and the sacred ornaments, books, jewels,
money, and other prop. of the church. The def., by a written document of that date, refused to make such
delivery, stating that "the town of Lagonoy, in conjunction w/ the parish priest of thereof, has seen fit to
sever connection w/ the Pope at Rome and his representatives in these Islands, and to join the Filipino
Church, the head of w/c is at Mla.
In 1/4, the pltff. brought this action against def., alleging in his amended complaint that the
Roman Catholic Church was the owner of the church bldg, the convent, cemetery, the books, money, and
other prop. belonging thereto, and asking that it be restored to the possession thereof and that the def.
render an account of the prop. w/c he had received and w/c was retained by him, and for other relief. The
CFI-Ambos Camarines ruled in favor of the pltff.
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HELD: It is suggested by the appellant that the Roman Catholic Church has no legal personality
in the Philippine Islands. This suggestion, made with reference to an institution w/c antedates by
almost a thousand years any other personality in Europe, and w/c existed "when Grecian eloquence
still flourished in Antioch, and when idols were still worshipped in the temple of Mecca," does not
require serious consideration.
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are
governed by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the subject.
Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships.
Tolentino: What Governs Juridical Persons.-- The State is governed by the provisions of the
Consti; provinces and municipalities are governed by the Local Gov't Code and the Revised Admin.
Code; and chartered cities, by their respective charters.
Corporations created by special charter are governed primarily by such charter; and those
created under general law are governed by the Corporation Code.
Partnerships and associations must be governed primarily by their contracts of association,
and only secondarily by law, bec. partnerships are created by contract, and it is a fundamental rule
that the contract has the force of law between the contracting parties.
Art. 46. Juridical persons may acquire and possess property of all kinds, as well as
incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization.
Tolentino: Capacity of Juridical Persons.-- The juridical person is not completely at par w/
natural persons as to capacity, bec. it cannot exercise rights w/c presuppose physical existence,
such as family rights, making of wills, etc.
Extinguishment of Capacity.-- The juridical capacity of artificial persons is extinguished upon
the termination of its existence in accordance w/ the law governing it or w/ its articles of asso. or
incorp.
The following provisions of the Constitution are relevant:
Art. XII, Sec. 3. Lands of the public domain are classified into agricultural, forest or timber,
mineral lands, and national parks. Agricultural lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not hold such lands of the public domain
except by lease, for a period not exceeding twenty-five years, renewable for not more than twentyfive years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not
more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase,
homestead, or grant in excess of twelve hectares.
Taking into account the requirements of conservation, ecology and development and subject
to the principles of agrarian reform, the Congress shall determine, by law, the size of lands of the
public domain which may be acquired, developed, held or leased and the conditions therefor.
(Constitution.)
Art. XII, Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred
or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of
the public domain. (ibid.)
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(not in Baviera's outline)

Art. 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.
Art. 48. Superseded by Art. IV, Sec. 1 of the 1987 Constitution
Art. IV, Sec. 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before Janurary 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.
Art. 49. Naturalization and the loss and reacquisition of citizenship of the Philippines
are governed by special laws.
Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is the place of their habitual residence.
Balane: Requisites of Domicile: (1) physical presence; (2) animus manendi (intent to remain)
(Gallego v. Vera, 73 P 453.)
Three kinds of Domicile:
(1) Domicile of Origin.-- Domicile of the parents of a person at the time he was born
(2) Domicile of Choice.-- Domicile chosen by a person to change his original domicile. Aside
from the 2 requisites mentioned above, a third requisite must be present in domincile of choice,
animus non revertendi (intention not to return to one's old domicile as his permanent place.)
(3) Domicile by Operation of Law.-- E.g., Art. 69, FC.
Three Rules in Domicile:
(1) A man must have a domicile somewhere.
(2) A domicile once established remains until a new one is acquired.
(3) A man can have only 1 domicile at a time.
Domicile and Residence. Domicile is not the same as residence. Domicile is residence plus
habituality.
Importance of Understanding Domicile.-- In case of revocation of wills (Art. 829), place of
performance of obligation (Art. 1251, par. 3), renvoi (Aznar v. Garcia.)
Art. 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 exercise their pricipal functions.
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(Articles 1 to 54 follows Prof. Ruben Balane's Outline)

MARRIAGE
Definition
Tolentino: Definitions of Marriage.-- The term marriage has 2 distinct meanings. In one sense, it
is limited to the procedure by w/c a man and a woman become husband and wife. In this concept,
it is defined as "that 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."
In the second sense, marriage is a status involving duties and responsibilities w/c are no
longer matter for private regulations, but the concern of the State. xxx As such, it is defined as
"the civil status of one man and one woman, legally united for life, with rights and duties which,
for the establishment of families and the multiplication of the species, are, from time to time may
thereafter be, assigned by law to matrimony." (Balane quoted Tolentino on the meaning of
marriage.)
Purposes of Marriage.-- In general: (1) reproduction, (2) education of the offspring, and (3)
mutual help. The immediate purpose is the constitution of a complete and perfect community bet.
2 individuals of different sexes; the remote purpose is the preservation of the human race.
Art. 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.
Tolentino: Marriage a Social Institution.-- Marriage is a contract only in form, but in essence it
is an institution of public order, founded on custom and morality. It is a contract sui generis w/c
cannot be compared to any other contract.
Characteristics: (1) It is civil in character, bec. it is established by the State independently of its
religious aspect; (2) it is an institution of public order or policy, governed by rules established by
law w/c cannot be made inoperative by the stipulation of the parties; (3) it is an institution of
natural character, bec. one of its objects is the satisfaction of the intimate sentiments and needs of
human beings for the organic perpetuation of man.
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Balane: Marriage is a contract. Art. 52, NCC provides that M is not a mere contract. Art. 1, FC,
on the other hand provides that M is a special contract. Both emphasize that M is not just a
contract.
Tolentino: Differentiated from Ordinary Contracts: (1) As to parties: Ordinary contracts (0C)
may be entered into by any no. of persons, whether of the same or different sex, while marriage
(M) can be entered into only by one man and one woman; (2) As to contractual rights and
obligations: In OC, the agreement of the parties have the force of law bet. them while in M, the
law fixes the duties and rights of the parties; (3) As to termination: OC can be terminated by
mutual agreement of the parties, while M cannot be so terminated; neither can it be terminated even
though one of the parties subsequently becomes incapable of performing his part; and (4) As to
breach: Breach of OC gives rise to an action for damages, while breach of the obligations of a
husband or a wife does not give rise to such an action; the law provides penal and civil sanctions,
such as prosecution for adultery or concubinage, and proc. for legal sep.; (5) As to effect: OC do
not create status, M does. (no. 5 was added by Balane.)
Balane: Quite logically, marriage is the starting point of any family relation bec. in our legal
system, the family is the keystone of society, the basic unit of society. And marriage is the keystone
of the family. This is a value judgement. Marriage does not have to be the keystone of the family.
But we choose it to be that way.
xxx Much arguments have been raised regarding the status of children on the distinction
of legitimate from illegitimate children. There are those who propose the abolition of the
distinction as it is not the fault of the illegitimate child that he is such. But one of the uninentended
consequence of abolishing the distinction is to erode the institution of marriage. Are we ready to
take that path?
Tolentino: Principal Effects of Marriage: (1) personal and economic relations bet. the sps., w/c
become sources of impt. rights and duties; (2) the legitimacy of sexual union and of the family; (3)
the personal and economic relations bet. parents and children, w/c gives rise to considerable rights
and duties; (4) the family rel'p, from w/ flow various juridical consequences, such as impediments
to marriage, right to support, and rights to inheritance; (5) incapacity of the sps. to make
donations to each other; (6) disqualification of the sps. to testify against each other; (7)
modification of crim. liab., such as by way of exemption when one spouse defends the other from
unlawful aggression or is his accessory after the fact, or mitigation when the crime is committed in
vindication of a grave offense to the spouse, or aggravation when the injured is the spouse of the
offender, such as in parricide.
Contract to Marry.-- Where parties mutually agree to marry each other at some future time, there
is a contract to marry. xxx It can be distinguished from an ordinary contract in that the promise of
either party cannot be enforced by court action, bec. the consent to the actual marriage must be
purely voluntary.
Breach of Promise.-- There is repudiation where before the time set for the performance
of the marriage, one party declares that he will not carry it out, or refuses to further communicate
w/ or maintain a suitor's relation w/ the other party, or puts himself in a position where he cannot
execute the contract, as when he marries another.
Damages for Breach.-- [T]he action for breach of promise to marry has no standing in
the civil law, apart from t he right to recover money or property advanced by the plaintiff upon the
faith of such promise." (De Jesus v. Syquia, 58 P 866.)
We believe that an action based purely on breach of the contract to marry, will not lie. xxx
It is true that she may suffer from wounded feelings and mental anguish, and these are recognized
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as elements of moral damages under article 2217; but before such damages can be recovered, there
must first be a right of action, and there is no law granting a right of action on breach of contract
to marry. However, we believe that if the action for damages is based on tort or quasi-delict, or on
articles 19, 21, or 22 of the present Code, there would be a sufficient legal basis or right of action
for damages.
Effect of Seduction.-- xxx [I]t is possible legally to base an action upon the carnal
knowledge of the pltff. by the def., or upon the seduction, as a fact separate from the contract to
marry. The promise to marry would only be the means of accomplishing the seduction. If the
offended woman has been led to submit to carnal intercourse by the promise of marriage, she
should be entitled to damages, not only on the basis of tort or quasi-delict, but under the provisions
of art. 21.
xxx The essence of the action would not be the breach of the contract, but the tortious or
wrongful act or seduction accomplished through the deceitful promise.
Abuse of right.-- Even when there has been no seduction, we believe that under art. 19,
damages, may under certain circumstances, be recovered against a party who repudiates a contract
to marry; but the basis of the action cannot be the mere breach of contract itself, but some act
constituting an abuse of right.
Unjust enrichment.-- Another legal basis in connection w/ a breach of contract to marry
is art. 22 on unjust enrichment. xxx Gifts to the person to whom the donor is engaged to be married
are considered legally as conditional, and upon breach of the engagement by the donee, may be
recovered by the donor. (see Domalagan v. Bolifer, 33 P 471.)
Oral Agreement.-- Under 1403 "an agreement made in consideration of marriage, other a
mutual promise to marry," shall be unenforceable by action, unless the same, or some note or
memorandum thereof, be in writing, and subscribed the party sought to be charged. (Statute of
Frauds.)
It seems to us that the writing is not necessary in an action for damages for breach of a
contract to marry. First, where the party who sues for damages has already given the consideration
for the promise of the def., it is unjust to deny the action on the plea of the Statute of Frauds.
Second, the Statute should apply only when the action is to enforce the contract; but not when it is
for damages for breach.
Goitia v. Campos Rueda [35 P 252] -- F: This is an action for support by G (wife) against R
(husband). After 1 mo. of marriage, R repeatedly demanded from G to perform "unchaste and lascivious
acts on R's genitals." Bec. of G's refusal, R maltreated G by word and deed, inflicting bodily injuries on
G. To escape R's lewd designs and avoid further harm, G left the conjugal home and took refuge in her
parent's house. G filed an action for support w/ the trial court. this was dismissed on the ground that R
could not be compelled to give support if G lived outside of the conjugal home, unless there was legal sep.
G appealed.
HELD: Marriage is something more than a mere contract. It is a new relation, the rights, duties,
and obligations of w/c rest not upon the agreement of the parties but upon the general law w/c
defines and prescribes those rights, duties, and obligations. Marriage is an institution, in the
maintenance of w/c in its purity the public is deeply interested. It is a relation for life and the
parties cannot terminate it at any shorter period by virtue of any contract they may make. The
reciprocal rights arising from this relation, so long as it continues, are such as the law determines
from time to time and none other. When the legal existence of the parties is merged into one by
marriage, the new relation is regulated and controlled by the state or govt upon principles of public
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policy for the benefit of society as well as the parties. And when the object of a marriage is
defeated by rendering its continuance intolerable to one of the parties and productive of no possible
good to the community, relief in some way should be obtainable.
The law provides that the H, who is obliged to support the wife, may fulfill this obligation
either by paying her a fixed pension or by maintaining her in his own home at his option. However,
the option given by law is not absolute. The law will not permit the H to evade or terminate his
obligation to support his wife if the wife is driven away from the conjugal home bec. of the H's
own wrongful acts. In this case, where the wife was forced to leave the conjugal abode bec. of the
lewd designs and physical assaults of the H, the W may claim support from the H for separate
maintenance even outside of the conjugal home.
I. REQUISITES OF A VALID MARRIAGE
Balane: There are two kinds of requisites, the essential and the formal. There are three essential
requisites: (1) legal capacity of the contracting parties, (2) consent freely given and (3)
difference in sex (other commentators opine that this third is already included in legal capacity.)
On the other hand, there are also 3 formal requisites: (1) authority of the solemnizing
officer, (2) a valid marriage license and (3) some form of cermeony.
Distinction.-- Absence, Defect, Irregularity of Requisites:
(1) Absence of a requisite, whether essential or formal, renders the M void
Absence means a total want of a requisite. E.g., the total absence of a marriage license
(absence of a formal requisite) w/c renders the M void.
(2) A defect in the essential requisite makes the M voidable
E.g., where the consent of either party was vitiated by intimidation.
(3) An irregularity in the formal requisite does not affect the validity of the marriage but
this is w/o prejudice to the criminal, civil or administrative liab. of erring officials.
E.g., where the marriage license was issued w/o complying w/ the 10-day posting
requirement. (Art. 17, FC.)
1. Difference in Sex (an essential requisite)-- Articles 2 par. 1, 4 par. 1, 39
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; xxx
xxx
Balane: The phrase "who must be a male and a female" was not found in the NCC.
Art. 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).
xxx
Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. xxx
2. Some Form of Ceremony (a formal requisite.)-- Articles 3 par. 3, 4 par. 1, 6
Art. 3. The formal requisites of marriage are:
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xxx
(3) A marriage ceremony which takes place with the appearance of the contracting
parties before the solemnizing officer and their personal declaration that they take each other
as husband and wife in the presence of not less than two witnesses of legal age.
Tolentino: Ceremony of Marriage.-- The requirement of a marriage ceremony prevents the
recognition in the Phils. of what are known as "common law marriages." A common law marriage
is a present agreement bet. a man and a woman w/ capacity to enter into such rel'p, to take ea.
other as H and W, followed by cohabitation.
xxx
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is
required. It shall be necessary, however for the contracting parties to appear personally
before the solemnizing officer and declare in the presence of not less than two witnesses of
legal age that they take each other as husband and wife. This declaration shall be contained in
the marriage certificate which shall be signed by the contracting parties and their witnesses
and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is unable
to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to
write the name of said party, which fact shall be attested by the solemnizing officer.
Balane: Requisites of some form of ceremony:
(1) Personal appearance of the contracting parties in the presence of the solemnizing
officer. This rules out proxy marriages.
(2) The declaration that they declare in some manner that they take each other as H &
W. This provision is worded broadly. There is no set formula for the declaration, no particular
words are required. It does not even have to be oral provided that there is sufficient manifiestation
of their will that they take each other as H & W.
(3) Presence of at least 2 witnesses of legal age. Some say that the absence of this 3rd
requisite renders the marriage void. Others say it is only an irregularity.
Tolentino: It is not necessary to the validity of the marriage that the contracting parties should
recite precisely the words of the statute. It is enough that the words employed evidence mutual
consent.
Failure to Sign or Issue Certificate.-- The certificate is merely of evidentiary value, and failure
to sign the same does not render the marriage a nullity. The consent can be proved by other
competent evidence, such as the testimony of the solemnizing officer, of the parties themselves, of
the witnesses to the marriage, and of others present at the wedding.
Martinez v. Tan [12 P 731] -- F: Pltff. Rosalia Martinez commenced this action for the cancellation
of the cert. of marriage and for damages. Pltff. claimed that what took place before the justice of the peace
did not constitute a legal marriage under Gen. Orders No. 68, Sec. 6, "No particular form for the
ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing
the marriage, that they take each other as husband and wife." CFI found for def.
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HELD: The parties addressed a signed petition to the justice of the peace stating that they had
agreed to marry, and asking the justice of the peace to marry them. Before the justice of the peace,
they stated under oath that they ratified the contents of their petition and insisted on what they
asked for. This statement was signed by them, in the presence of witnesses that they produced. A
certificate was then made out by the justice of the peace, signed by him and the witnesses, stating
the parties had been married by him. Both the parties knew the contents of the document w/c they
signed. Under the circumstances, what took place before the justice of the peace amounted to a
marriage.
(not in Balane's outline)
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in
open court, in the church, chapel or temple, or in the office of the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted at
the point of death or in remote places in accordance with Article 29 of this Code, or where
both of the parties request the solemnizing officer in writing in which case the marriage may
be solemnized at a house or place designated by them in a sworn statement of that effect.
Sempio-Dy: This provision is only directory, not mandatory, so that non-compliance therewith will
not invalidate the marriage.
SAN GABRIEL V. SAN GABRIEL [56 O.G. p. 3555 (1960)] - The mere fact that the marriage took
place on a Sunday also would not necessarily vitiate the marriage on the ground that it consti tutes a
violation of the requirement that the marriage shall be solemnized publicly in the office of the judge in
open court.
3. Legal Capacity (an essential requisite.)-- Art. 2 par. 1

(1) Legal capacity of the contracting parties who must be a male and a female; xxx
a. Age.-- Articles 5, 35 par. 1, 45 par. 1, 47 par. 1, 39
Art. 5. Any male or female of the age of eighteen years or upwards not under any of
the impediments mentioned in Articles 37 and 38, may contract marriage.
Tolentino: Age of Consent.-- The age for each party provided in Art. 5 is generally known as the
"age of consent." for marriage. Eighteen yrs is the "age of consent" bec. below this age, a party to
a marriage cannot give a binding valid consent.
Balane: 18 yrs. old is an absolute minimum.
Tolentino: Age of Legal Capacity.-- For a perfect consent that would result in a valid binding
marriage, the parties should be 21 yrs. of age. The age of 21 is, thus, the "age of legal capacity" to
marry.
Effect of Penal Law.-- Under Art. 344, RPC, the marriage of the offender w/ the offended party
shall extinguish the criminal action or remit the penalty already imposed upon him.
Q: If the victim of the crimes of rape, seduction, adbuction, and acts of lasciviousness
happens to be a girl less than 18 yrs. old, can she validly marry the offender?
A: We believe that she can. It is submitted that the circumstances contemplated by the
RPC are of an exceptional character, and shld be considered as an exception to the provisions of
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the FC on the legal capacity to marry. xxx If merely bec. she is below the age of consent she will
not be permitted to marry the offender, then we will have the absurd case where the law gives a
remedy w/ one and denies it w/ the other hand.
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;
xxx
Balane: There is here an absolute absence of an essential requisite.
Art. 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 sought to have the marriage annulled was 18
years of age or over but below 21, and the marriage was solemnized without the consent of
the parents, guardian or person having substitute parental authority over the party, in that
order, unless after attaining the age of 21, such party freely cohabited with the other and both
lived together as husband and wife;
xxx
Tolentino: Want of Parental Consent.-- The law does not expressly authorize the parent whose
consent is required, to ratify the marriage. xxx We believe that xxx the ratification by the parent
whose consent is wanting must be recognized as sufficient to validate the marriage, provided such
ratification is made before the party to the M reaches 21 yrs. old. Art. 47, par. 1 recognizes the
right of such parent to ask for the A of the M bef. the child who has married w/o parental consent
reaches the age of 21. This right can be waived. Besides, if the nullity proceeds from the absence
of consent, there is no juridical reason why such defect cannot be cured by subsequent
confirmation. xxx
Art. 47. The action for annulment of marriage must be filed by the following persons
and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or
guardian did not give his or her consent, within five years after attaining the age of 21; or by
the parent or guardian or person having legal charge of the minor, at any time before such
party reached the age of 21;
xxx
Balane: This kind of marriage can be ratified by cohabitation for a reasonable period of time after
the minor reaches the age of 21. Here ratification can set in even before the prescription sets in.
b. Relationship.-- Articles 37, 38 par. 1 to 8, 39
Art. 37. Marriages between the following are incestuous and void from the beginning,
whether the relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
Art. 38. The following marriages shall be void from the beginning for reasons of
public policy:
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(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the

fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
xxx
Tolentino: Collateral Blood Relatives.-- Marriages bet. nephews and aunts, uncles and nieces,
and first cousins are prohibited under par. (1). This prohibition is based on scientific opinion as
well as on public opinion. They are contrary to good morals. Although not conclusive, there is
scientific and expert opinion that, except in rare cases, children of first cousins suffer from organic
defects, and in many instances are idiots, weak-minded, deaf, nearsighted, etc., in other words,
their marriage tends to weaken the race.
c. Prior Marriage.-- Articles 35 par. 4, par. 6, 40, 41, 42, 43, 44, 53 & 39
Balane: There are 3 kinds of marriage that are void bec. of a prior marriage:
1. A bigamous or polygamous marriage, not falling under Art. 41.
There are 3 requisites under Art. 41:
a. Absence of the prior spouses for at least 4 consecutive yrs. or at least 2
consecutive yrs. if it falls under Art. 391, NCC.
b. The spouse present has a well-founded belief that the absent spouse
was already dead.
c. The institution by the spouse present of a summary proceeding of
presumptive death of the absent spouse. A declaration by the court of the
presumptive death is of course required.
2. In Art. 40 where the marriage was contracted after a void ab initio marriage w/c has
not been declared void by final judgment.
3. In Art. 53 in case of a subsequent marriage w/c does not comply w/ the requirements of
Art. 52.
In Art. 52, you have to do 3 things:
a. Judgment of annulment or nullity of marriage must be registered in the appropriate
registry.
b. The registration of the partition and distribution of the properties of the spouses in the
appropriate civil registry.
c. The delivery of the common children's presumptive legitime.
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xxx
(4) Those bigamous or polygamous marriages not falling under Article 41;
xxx.
(6) Those subsequent marriages that are void under Article 53.
Art. 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.
Tolentino: [F]or purposes of remarriage it would be necessary to such void M to secure a final
judgement declaring it null and void from the beginning. W/o such final judgment, the previous
void marriage would constitute an impediment to the remarriage, and a marriage license may be
denied.
xxx This article applies only when a license is to be obtained for a subsequent marriage.
DOMINGO V. CA [226 SCRA 572 (1993)] - A spouse may petition for the declaration of
nullity of her marriage for a purpose other than her remarriage.
F:
Delia Domingo filed a pet. for decl. of nullity of her marriage w/ Roberto Domingo, on the ground
that, unknown to her, he was previously married at the time of their marriage. She prays that their
marriage be declared null and void and, as a consequence, to declare that she is the exclusive owner of all
properties she acquired during the marriage and to recover them from him.
Roberto moved to dismiss the petition on the ground that the marriage being void ab initio, the
petition for decl. of nullity is unnecessary citing Peo. v. Aragon and Peo. v. Mendoza. Roberto claims that
decl of nullity is necessary under Art. 40, FC only for the purpose of remarriage. The lower court denied
the motion. CA affirmed the denial.
HELD: The Declaration of nullity of a marriage under Art. 40 may be resorted to even for a
purpose other than remarriage.
Crucial to the proper interpretation of Art. 40 is the position of the word "solely." xxx. As
it is placed, it is meant to qualify "final judgment." Had the provision been stated as follows: "The
absolute nullity of a previous marriage may be invoked solely for purposes of remarriage...," the
word "solely" will qualify "for purposes of remarriage" and the husband would have been correct.
That Art. 40 as finally formulated included the significant clause denotes that such final
judgment declaring the previous marriage void need not be obtained only for purposes of
remarriage.
ATIENZA V. BRILLANTES [243 SCRA 32 (1995)] - F: This is an administrative complaint
filed by Atienza for Gross Immorality and Appearance of Impropriety against J. Brillantes, Presiding
Judge of MTC, Mla. It was alleged in the complaint that Brillantes has been cohabiting w/ Yolanda De
Castro (w/ whom Atienza had 2 children) when he (Brillantes) was already married to one Zenaida
Ongkiko w/ whom he has 5 children. xxx Resp. denies having been married to Ongkiko, although he
admits having 5 children w/ her. He alleges that while he and Ongkiko went through a marriage
ceremony, the same was not valid for lack of marriage license. The second marriage bet. the two also
lacked the required license. He claims that when he married De Castro in LA, California, he believed, in
all GF and for all legal intents and purposes, that he was single bec. his first marriage was solemnized w/o
a license.
HELD: Under the FC, there must be a judicial decl. of the nullity of a previous marriage bef. a
party thereto can enter into a 2nd marriage. (Art. 40.) Art. 40 is applicable to remarriages entered
into after the effectivity of the FC regardless of the date of the first marriage. Said art. is given
"retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance
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w/ the NCC or other laws." (Art. 256, FC.) This is particularly true w/ Art. 40 w/c is a rule of
procedure. Resp. has not shown any vested right that was impaired by the application of Art. 40 to
his case.
The fact that procedural statutes may somehow affect the litigants' rights may not preclude
their retroactive application to pending actions. The retroactive application of procedural laws is
not violative of any right of a person who may feel that he is adversely affected. The reason is that
as a general rule no vested right may attach to, nor arise from, procedural laws.
Art. 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 wellfounded 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 2 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 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.
Tolentino: The period was reduced in the FC to 2 years in the foregoing cases.
REPUBLIC V. NOLASCO [220 SCRA 20 (1993)] - The declaration of presumptive death
under Art. 41, FC is available only for the purpose of remarriage.
F:
Gregorio Nolasco was a seaman. During one of the calls of his ship to England, he met Janet
Monica Parker, a British subject. From that chance meeting, Janet lived w/ Nolasco on his ship for 6 mos.
When Nolasco's contract expired in 1960, Janet went w/ him in returning home to San Jose, Antique. In
Jan. 1982, Nolasco married Janet in Catholic sites in Antique.
After the marriage, Nolasco obtained another employment contract as a seaman, leaving his
pregnant wife w/ his parents. Sometime, in 1/83, while working overseas, Nolasco received a letter from
his mother informing him that Janet had already given birth to his son. The letter also informed him that
Janet left Antique after giving birth. xxx
In 88, or 5 yrs. after the disappearance of Janet, Nolasco filed an action for the decl. of
presumptive death of his wife Janet under Art. 41, FC, claiming that all his efforts to look for her proved
fruitless.
xxx The trial court granted the petition. CA affirmed the ruling. Hence this petition for review.
HELD: 1. A petition to declare an absent spouse presumptively dead may not be granted in the
absence of any allegation that the spouse present will remarry.
2. There are 4 requisites for the declaration of presumptive death under Art. 41:
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1. That the absent spouse has been missing for 4 consecutive years, or 2 consecutive yrs.
if the disappearance occurred where there is a danger of death under the circumstances laid down
in Art. 391.
2. That the spouse present wishes to remarry
3. That the spouse present has a well-founded belief that the absentee is dead.
4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee.
The Court believes that resp. Nolasco failed to conduct a search for his missing wife w/
such diligence as to give rise to a "well-founded belief" that she is dead. The Court considers the
investigation allegedly conducted by Nolasco in his attempt to ascertain the whereabouts of Janet
as to sketchy to form the basis of a reasonable or well-founded belief that she was already dead.
For instance, when he arrived in Antique, instead of seeking the help of local authorities or of the
British Embassy, he secured another seaman's contract and went to London. We do not consider
that walking into a major city w/ a simple hope of somehow bumping into one particular person
there xxx can be regarded as a reasonable diligent search. The Court also views Nolasco's claim
that Janet declined to give any info. as to her personal background even after marrying Nolasco as
too convenient an excuse to justify his failure to locate her.
BIENVENIDO V. CA [237 SCRA 676 (1994)] - When a man contracts a subsequent
marriage while the first marriage is subsisting, the second marriage as a general rule is void for
being bigamous. He who invokes that the second marriage is voidable for being an exception
under Art. 83 of the NCC has the burden of proving it.
F:
Aurelio Camacho married Conseja Velasco in '42. In '62, w/o this marriage being dissolved,
Aurelio married Luisita Camacho in Tokyo. In '67, Aurelio met Nenita Bienvenido. Aurelio courted and
won her and they cohabited until Aurelio's death in '88. In '82, Aurelio bought a house and lot. In the
deed of sale and in the TCT in his name, he was described as single. In '84, he sold the said house and lot
to Nenita. When Aurelio died, Luisita filed an action to annul the sale to Nenita alleging that it was in
fraud of her as the legitimate wife of Aurelio. Nenita opposed the action claiming that she was a buyer in
GF. The trial court upheld the sale in favor of Nenita. The CA reversed. Hence, this petition for review.
HELD: There is no presumption that the marriage bet. Aurelio and Luisita is valid. As a general
rule, under Art. 83, NCC, a subsequent marriage contracted while the previous one is still
subsisting is void. There are exceptions to this rule but he who is invoking the exception has the
burden of proving the existence of the conditions for the said exception to arise. In the case at bar,
the burden of proof was on Luisita to show that at the time of her marriage to Aurelio, Aurelio's
first wife had been absent for at least 7 yrs and that he had no news that she was alive. She failed
to discharge this burden. What applies, therefore, is the general rule xxx. Consequently, there is
no basis for holding that the prop. in question was prop. of his conjugal partnership bet. Luisita
and Aurelio bec. there was no partnership in the first place.
Art. 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
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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.
Balane: Marriage under Art. 41 is valid unless terminated under Art. 42. Notice that the law uses
the term "terminated" and not annulled. This is bec. marriage under Art. 41 is a good marriage.
The effect of the affidavit of reappearance is that the subsequent marriage is terminated unless
it is judicially challenged.
Tolentino: If both parties to the subsequent marriage acted in BF (knowing that the absent spouse
is alive), the said marriage is void ab initio under Art. 44.
Q: If only one party has acted in BF, is the M valid?
A: If the spouse who contracted the 2nd M knew that in spite of the absence of his spouse
for the period provided in 41 said absent spouse was alive, his 2nd M shld be considered void as
bigamous under 35(4), bec. an essential element in 41 to make it an exception is wanting.
If such present spouse has acted in GF and the declaration of presumptive death has been
obtained, the BF of the 2nd spouse will not affect the validity of the M, but the provisions of 43
will operate against him, such as the revocation of donations by reason of M made to him, of his
designation as beneficiary in any insurance of the innocent spouse, and his disqualification to
inherit from the innocent spouse.
When No Action Taken.-- If the absentee reappears, but no step is taken to terminate the
subsequent M, either by affidavit or by court action, his mere reappearance, even if made known to
the spouses in the 2nd M, will not terminate such M.
[I]t is incorrect to say that the first M is dissolved by the celebration of the 2nd. It would
be more accurate to say that since the 2nd M has been contracted bec. of a presumption that the
former spouse is dead, such presumption continues in spite of his physical reappearance, and by
fiction of law, he must be regarded as legally an absentee, until the subsequent M is terminated as
provided by law. The result of this is the suspension of the legal effects of M as to him as long as
the 2nd M subsists.
GOMEZ V. LIPANA [38 S 615 (1958)] - Where a husband and his second wife from whom he concealed
his first marriage, acquired properties during their marriage, the second marriage being void, is subject to
collateral attack in the intestate proceedings instituted by the judicial administra trix for the forfeiture of
the husband's share under Article 1417, Spanish Civil Code (no longer in force) . "The legal situation
arising from these facts is that while insofar as the second wife was concerned, she having acted in good
faith, her marriage produced civil effects and gave rise, just the same, to the formation of the conjugal
partnership wherein she was entitled to an equal share upon dissolution." The only JUST AND
EQUITABLE solution is to give one-half of the properties to the second wife, and the other half to the
conjugal partnership of the first marriage.
CONSUEGRA V. GSIS [37 S 315 (1971)] - Where the husband designated his second family as beneficiaries of his life insurance policy, upon his death, both his first wife and second family share 50-50 in the
benefits. Since the first marriage has not been dissolved, his wife remains as his legal heir. Although the
second marriage is presumed void, having been contracted during the subsistence of the first marriage,
there is a need for a judicial declaration of its nullity, which is no longer possible, the death of the husband
having terminated the second conjugal partnership of gains.
Baviera: The court should not have applied Gomez v. Lipana, since there is no provision in the
Civil Code giving effect to a void marriage in good faith.
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PEOPLE V. MENDOZA [95 S 845 (1954)] - A subsequent marriage contracted by any person during the
lifetime of his spouse is illegal and void from its performance, and no judicial decree is necessary to
establish its invalidity. A prosecution for bigamy based on said void marriage will not lie.
PEOPLE V. ARAGON [100 P 1033 (1957)] - cited People v. Mendoza
Baviera: As a defense in bigamy, there is no need for judicial declaration of nullity of a void
marriage; as far as determination of property relations is concerned, there is a need for such
judicial declaration for purposes of remarriage.
Art. 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 in a proper proceeding;
(2) The absolute community of property or the conjugal partnership, as the case may
be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property or conjugal partnership
property shall be forfeited in favor of the common children or, if there are none, the children
of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in
bad faith as beneficiary in any insurance policy, even if such designation be stipulated as
irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession.
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage
shall be void ab initio and all donations by reason of marriage and testamentary dispositions
made by one in favor of the other are revoked by operation of law.
Tolentino: If the subsequent marriage is not terminated by the subsequent reappearance or by
judicial declaration, but by death, do these effects arise?
A: It is submitted that generally if a subsequent M is dissolved by the death of either
spouse, the effects of dissolution of valid M shall arise. The GF or BF of either spouse can no
longer be raised, bec., as in annullable or voidable M, the M cannot be questioned except in a
direct action for annulment.
But if both parties acted in BF, under 44, the M is void ab initio. In such case, the validity
of the M can be attacked collaterally at any time, and the effects provided on 44 can be applied
even if the dissolution is by death of one of the spouses.
Art. 53. Either of the former spouses may marry again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage shall
be null and void.
Art. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the spouses, and the
delivery of the children's presumptive legitimes shall be recorded in the appropriate
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civil registry and registries of property; otherwise, the same shall not affect third
persons.
d. Crime.-- Articles 38 par. 9, 39
Art. 38. The following marriages shall be void from the beginning for reasons of
public policy:
xxx
(9) Between parties where one, with the intention to marry the other, killed that other
person's spouse, or his or her own spouse.
Balane: Art. 38 (9) used to be Art. 80 (6) of the NCC. Two changes were made: (1) the killing
must be w/ the intention to marry the other; (2) conviction is not required, a preponderance of
evidence being sufficient.
Tolentino: Killing of Spouse.-- It is submitted that a criminal conviction for the killing is not
necessary to render the marriage void under the FC. The removal of the requirement by the FC
must be taken as deliberate.
e. Physical capability.-- Articles 45 par. 5, 47 par. 5
xxx
(5) That either party was physically incapable of consummating the marriage with the
other, and such incapacity continues and appears to be incurable; xxx
xxx
Balane: Physical Incapacity: Requisites: (1) The incapacity exists at the time of the celebration
of the M; (2) Such incapacity must be permanent (it continues to the time when the case for
annulment is being tried) and incurable ; (3) It must be unknown to the other contracting party; (4)
the other spouse must not himself/ herself be impotent.
This kind of marriage cannot be ratified by ratification.
Tolentino: xxx The physical incapacity referred to by the law as a ground for A of M, is
impotence [impotentia copulandi/ coeundi as distinguished from impotentia generandi (sterility)],
or that physical condition of the H or the W in w/c sexual intercourse w/ a normal person of the
opposite sex is impossible.
Impotence refers to lack of power to copulate, the absence of the functional capacity for
the sexual act. The defect must be lasting to be a ground for annulment. The test of impotence is
not the capacity to reproduce, but the capacity to copulate. (Sarao v. Gueverra.)
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The refusal of the wife to be examined does not create the presumption of her impotency
bec. Filipino girls are inherently shy and bashful. The trial court must order the physical
examination of the girl, bec. w/o proof of impotency, she is presumed to be potent. To order her to
submit to a physical examination does not infringe on her constitutional right against selfincrimination (Sempio-Dy citing Jimenez v. Canizares, Aug. 31, 1960.)
Triennial Cohabitation.-- This doctine provides that if the wife be a virgin and apt after 3
yrs. of cohabitation, the H will be presumed to be impotent, and the burden will be upon him to
overcome the presumption and does not prevent impotency to be proved by another proper
evidence.
Balane: Some commentators say that this is disputable presumption is applicable in our
jurisdiction.
Tolentino: Action Barred.-- The action on this ground is barred in the following cases: (1) If the
other party had knowledge of the incurable impotence bef. the M, bec. this would imply that he
renounces copulation, w/c is a personal right; (2) If both spouses are impotent, and such
impotence existed bef. the M, continues, and appears incurable, bec. in this case an impotent pltff
could not have expected copulation w/ the other spouse.
xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party,
within five years after the marriage.
f. Psychological Incapacity.-- Articles 36, 39
Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes manifest only after its solemnization.
(As amended by E.O. No. 227)
Sempio-Dy: Provision is Taken from Canon Law.-- Par. 3 of Can 1095 of the New Code of
Canon Law provides that:
"Matrimonial Consent
The following are incapable of contracting marriage:
xxx
xxx
3. Those who, because of causes of a psychological nature, are unable to assume the essential
obligations of marriage.
The Committee decided to adopt par. 3 of the New Code of Canon Law as a ground for the
declaration of nullity of marriage for the following reasons: (1) As a substitute for divorce; (2) As
a solution to the problem of Church-annulled marriages; (3) As an additional remedy to parties
who are imprisoned by a marriage that exists in name only as they have long separated bec. of the
inability of one of them to perform the essential obligations of marriage.
Psychological Incapacity Distinguished from Vice of Consent.-- Psychological incapacity is not
a question of defective consent but a question of fulfillment of a valid consent.
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Psychological Incapacity Distinguished from Insanity.-- Mental incapacity or insanity of some

kind, like physical incapacity, is a vice of consent, while psychological incapacity is not a species
of vice of consent.
Q: Why Were No Examples of Psychological Incapacity Given in this Article?
A: The Committee did not give any examples of psychological incapacity for fear that the giving
of examples would limit the applicability of the provisions under the principle of ejusdem generis.
Rather, the Committee would like the judge to interpret the provision on a case-to-case basis,
guided by experience, the findings of experts and researchers in psychological disciplines, and by
decisions of Church tribunals w/c, although not binding on the civil courts, may be given
persuasive effect since the provision was taken from Canon Law.
Q: Is the Psychologically Incapacitated Person Disqualified from Marrying Again?
A: The Committee believes that there is no need to disqualify the psychologically incapacitated
from contracting another marriage bec. the fact of his psychological incapacity for marriage would
be revealed anyway when he applies for a marriage licence for the 2nd marriage, and the other
party is thus placed on guard to conduct discreet investigation about the matter.
General Characteristics of term "Psychological Incapacity": It must exhibit gravity,
antecedence and incurability: (1) Gravity, if the subject cannot carry out the normal and ordinary
duties of marriage and family shouldered by any average couple existing under ordinary
circumstances of life and work; (2) antecedence, if the roots of the trouble can be traced to the
history of the subject before the marriage although its overt manifestation appear only after the
wedding; and (3) incurability, if treatments required exceed the ordinary means of the subject, or
involve time and expense beyond the reach of the subject.
Q: Who can File the Action to Declare the Marriage Void?
A: Either party, i.e., even the psychologically incapacitated can file the action.
Q: What is the Status of the Children under this Article?
A: The children conceived or born before the decree of nullity of marriage are considered
legitimate (Art. 54.)
SANTOS V. CA [240 SCRA 20 (1995)] - Meaning of "psychological incapacity" confined to
the most serious cases of personality disorders demonstrative of insensitivity or inability to give
meaning and significance to the marriage.
F:
On 9/20/86, Leouel Santos and Julia Rosario Bedia exchanged vows bef. a mun. trial judge of
Iloilo City. They lived w/ the wife's parents. One yr. later, a child was born of their marriage. Quarrels
marred the marriage bec. of frequent interference by Julia's parents. On 5/18/88, Julia left for the US to
work as a nurse despite Leouel's pleas. For the first time in 7 mos. Julia called him up by long distance
promising to return home once her contract expires in 1/89. She never did. When Leouel was in the US
in 1990 to undergo a training program under the auspices of the AFP, he tried to locate Julia, but to no
avail. Hence this action in Negros Oriental, under Art. 36, FC. Summons was served by publication.
Julia opposed the complaint, claiming it was Leouel who had been irresponsible and incompetent. But
she filed a manifestation stating she would neither appear nor submit evidence. From an order of the
lower court dismissing the complaint for lack of merit, and the CA affirming said order, Leouel filed this
petition for certiorari.
HELD: It shld be obvious, looking at all the disquisitions, including, and most importantly, the
deliberations of the FC Revision Committee itself, that the use of the phrase "psychological
incapacity" in Art. 36 has not been meant to comprehend all such possible cases of pscyhoses as,
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likewise mentioned by some ecclesiastical authorities, extremely law intelligence, immaturity, and
like circumstances. xxx Art. 36 cannot be taken and construed independently of, but must stand in
conjunction w/, existing precepts in our marriage law. Thus correlated, psychological incapacity
should refer to no less than a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and discharged
by the parties to the marriage w/, as so expressed by Art. 68, FC include their mutual obligations
to live together, observe love, respect and fidelity and render help and support. (Balane: This is
a tentative definition of psychological incapacity.) There is hardly any doubt that the intendment
of the law has been to confine the meaning of "psychological incapacity" to the most serious
cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage. This psychologic condition must exist at the time the
marriage is celebrated. xxx.
shall not prescribe. However, in the case of marriages celebrated before the effectivity of this
Code and falling under Article 36, such action or defense shall prescribe in 10 years after this
Code shall have taken effect. (As amended by E.O. No. 227)
Tolentino: Retroactivity of Art. 36.-- By providing for a 10-yr prescriptive period for marriages
of this nature solemnized bef. the effectivity of the FC, the latter has actually given a retroactive
effect to the present article.
We submit that this is a juridical mistake. It is like an ex post facto provision translated
into the filed of civil law. It contravenes the provisions of Art. 255 w/c allows retroactivity of the
FC provisions only when it does not impair or prejudice vested or acquired rights.
g. Disease.-- Articles 45 par. 6, 47 par. 5
xxx
(6) That either party was afflicted with a sexually-transmissible diseases found to be
serious and appears to be incurable.
Balane: Sexually-Transmissible Disease.-- Its requisites are: (1) The disease must be sexually
transmisible; (2) The disease is found to be serious; (3) It must be apparently incurable; (4) The
STD must exist at the time of the M; (5) It was unknown to the other party when the M was
solemnized; and (6) the other party must himself/ herself be free from STD.
A marriage were either party was afflicted w/ STD may not be ratified by cohabitation.
Cohabitation here may be suicidal. Take note that there are two voidable marriages that cannot be
ratified by ratification: (1) voidable marriage bec. of impotence (here, there will be contradiction
in terms; how can you cohabit if you are impotent?); (2) voidable marriage bec. of STD.
Tolentino: The reason for this cause for A is the danger to the health of the other spouse and
offsprings, giving rise to possibility of avoidance of sexual relations, and the failure to attain one of
the purpose of M, that is, the procreation of children and raising of a family.
xxx
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(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party,
within five years after the marriage.
4. Consent (an essential requisite).-- Art. 2 par. 2

xxx
(1) Consent freely given in the presence of the solemnizing officer.
Tolentino: Mutual Consent.-- Such consent must be real, in the sense that it is not vitiated by
mistake, duress, or fraud. It must also be conscious or intelligent.
Effect of Mistake.-- Mistake as to the nature and legal consequences of the ceremony or as to the
identity or the person of one of the parties, renders the marriage void for lack of consent [see Art.
35(5).] But a marriage is not invalidated by mistake as to rank, fortune, character or health, of one
of the parties.
a. Insanity.-- Articles 45 par. 2, 47 par. 2
xxx
(2) That either party was of unsound mind, unless such party after coming to reason,
freely cohabited with the other as husband and wife;
xxx
Party of Unsound Mind.-- The test of unsoundness of mind is w/n the party at the time
of the M was capable of understanding the nature and consequences of the M. xxx
Insanity must exist at the time of the M, to avoid it.
Somnambulism has the same effect as insanity. (Sanchez Roman.)
Burden of Proof.-- The presumption of the law is generally in favor of sanity, and he who
alleges the insanity of another has the burden of proving it. But once general insanity is proved to
exist, it is presumed to continue; and if a recovery or a lucid interval is alleged, the burden to prove
such allegation is on the person making it.
Ratification.-- This Art., in par. 2, gives the right of action to annul to the insane spouse
and provides for ratification after regaining reason. No right of action is given to the sane spouse;
this is based on the assumption that he knew of the insanity of the other party and is placed in
estoppel. But if he did not know of such insanity at the time of the M, he is given a right of action
under Art. 47, par. 2, at any time before the death of the insane spouse.
xxx
(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
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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;
xxx
Tolentino: Where the sane spouse knew of the insanity of the other, he is estopped to seek
annulment where he has lived w/ the wife claimed to have been insane for several years and
children have been born to them.
b. Fraud.-- Articles 45 par. 3, 46, 47 par. 3
xxx
(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;
xxx
Toleration: Marriage through Fraud.-- The FC limits the cases w/c would constitute fraud
sufficient for annulment of M to those enumerated in Art. 46. Bec. of the enumeration, w/c must
be considered as restrictive, no other case of fraud may be admitted.
Art. 46. Any of the following circumstances shall constitute fraud referred to in
Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a
crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at
the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity
shall constitute such fraud as will give grounds for action for the annulment of marriage.
Tolentino:
Conviction of Crime: Requisites: (1) The crime involves moral turpitude and (2) There has
been a conviction.
Balane: To find what crimes involve moral turpitude, you go by decisions of the SC. Crimes
against property are generally considered crimes of moral turpitude.
Tolentino: Concealment of Pregnancy.-- Where a man has had sexual intercourse w/ his wife
before the M, and she is pregnant at the time of M, although he may not be the author of the
pregnancy, the M will not be annulled. This is based on the theory that there is no fraud, bec. the
man knows his wife to be unchaste, as he was himself a party to her premarital immorality.
Concealment of Diseases.-- Compared w/ Art. 45 (6):
(1) Under 45 (6), a STD is an independent cause for annulment. Under 46, concealment
of a STD constitutes fraud under par. 3.
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(2) Under 45 (6), the STD existing at the time of the M must be found to be serious and
appear to be incurable. Under Art. 46 (3), the STD need not be serious or incurable. To be
aground for A, it must have been "concealed" by the sick party. It is the fraud that is the ground
for A.
This difference has a very impt. consequence. If the disease falls under Art 45 (6), the M
is not subject to ratification by continued cohabitation. If the disease falls under Art. 46 (3), the
ground for A is fraud, and the M is ratified under par. 3 of Art. 45, if the spouse who is well, after
knowing of the disease of the other, continues to cohabit w/ him or her as H & W.
Effect of Cure.-- The recovery or rehabilitation will not bar the action. The defect of the M is not
the disease, addiction or alcoholism itself but the fraud w/c vitiated the consent of the other party.
Balane: Homosexuality.-homosexual.
Sexual orientation is not enough.
One has to be a practicing
BUCCAT V. BUCCAT [72 P 19] - Where the wife was already 7 months pregnant, the petition
to annul the marriage on the ground of fraud was denied.
Where there has been no misrepresentation or fraud, that is, when the husband at the time of
the marriage knew that the wife was pregnant, the marriage cannot be annulled. Here, the child
was born less than 3 months after the celebration of the marriage. We refuse to annul the marriage
for the reason that the woman was at an advance stage of pregnancy at the time of the marriage
and such condition must have been patent to the husband.
ANAYA V. PALAROAN [36 S 97] - F: Aurora Anaya prayed for the annulment of her marriage
w/ Fernando Palaraon on the ground of fraud in obtaining her consent-- having learned that
several mos. prior to their marriage, Fernando had pre-marital relationship w/ a close relative of
his. According to her the "non-divulgement to her of such pre-marital secret" constituted fraud in
obtaining her consent w/in the contemplation of no. 4 of Art. 85, NCC.
HELD: The non-disclosure to a wife by her husband of his pre-marital relationship w/ another
woman is not a ground for annulment of marriage. For fraud as a vice of consent in marriage, w/c
may be a cause for its annulment, comes under Art. 85, No. 4 of the NCC xxx. This fraud, as vice
of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Art. 86
xxx.
The intention of Congress to confine the circumstances that can constitute fraud as ground
for annulment of marriage to the 3 cases therein may be deduced from the fact that, of all the
causes of nullity enumerated in Art. 85, fraud is the only one given special treatment in a
subsequent article w/in the chapter on void and voidable marriages. It its intention were otherwise,
Congress would have stopped at Art. 85, for anyway, fraud in general is already mentioned therein
as a cause for annulment. xxx.
BAVIERA CASES:
JIMENEZ V. CANIZARES [109 P 273 (1960)] - Where the husband filed a complaint for annulment of
marriage on the ground of physical incapacity of his wife for copulation, her genitals being too small for
penetration, the sole testimony of the husband as to the incapacity of his wife is not sufficient basis for
annulment. The presumption is in favor of potency. Hence, the court ordered the wife to submit to a
physical examination. A physical examination in this case is not self- incriminating, since she is not being
charged of any crime.
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PAULINO V. CRUZ [4 C.A. Rep 1207 (1963)] - A marriage may be annulled even after one of the
spouses has been convicted of adultery in violation of that marriage.
xxx
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five
years after discovery of the fraud;
xxx
Balane: This kind of marriage can be ratified by cohabitation for a reasonable period w/ may set in
even before the 5-yr. prescriptive period has expired.
c. Force, Intimidation, Undue Influence.-- Articles 45 par. 4, 47 par. 4
xxx
(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
xxx
Force, Intimidation and Undue Influence.-- The definitions of "violence," "intimidation," and
"undue influence" are found in Arts. 1335 to 1337 of the NCC
Art. 1335. There is violence when in order to wrest consent, serious or irresistible force is
employed.
There is intimidation when one of the contracting parties is compelled by a reasonable and
well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of the person shall be
borne in mind.
A threat to enforce one's claim through competent authority, if the claim is just or legal,
does not vitiate consent.
Art. 1336. Violence or intimidation shall annul the obligation, although it may have been
employed by a third person who did not take part in the contract.
Art. 1337. There is undue influence when a person takes improper advantage of his power
over the will of another, depriving the latter of a reasonable freedom of choice. The following
circumstances shall be considered: the confidential, family, spiritual and other relations between the
parties, or the fact that the person alleged to have been unduly influenced was suffering from mental
weakness, or was ignorant or in financial distress.
xxx
(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;
xxx
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d. Mistake as to Identity.-- Articles 35 par. 5, 39

xxx
(5) Those contracted through mistake of one contracting party as to the identity of
the other; xxx
xxx
Tolentino: Mistake as to Identity.-- This refers to mistake as to the person himself, involving a
substitution of another person for the party who is desired in marriage, w/o the knowledge of the
other contracting party.
5. Authority of Solemnizing Officer.-- Articles 3 par. 1, 4 par. 1, 7, 10, 31, 32, 35 par. 2
(1) Authority of the solemnizing officer;
xxx
Tolentino: Authority of the solemnizing officer.-- Q: Would a marriage void for want of
authority of the solemnizing officer entered into under the NCC, now be considered validated under
the FC, if either or both parties believed in good faith that such officer had the legal authority to
solemnize the marriage?
A: Yes. Art. 255, FC provides: "This Code shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in accordance w/ the NCC or other laws." The
present FC may be given a curative or remedial effect and validate the marriage in question.
xxx
Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized
by his church or religious sect and registered with the civil registrar general, acting within the
limits of the written authority granted him by his church or religious sect and provided that at
least one of the contracting parties belongs to the solemnizing officer's church or religious
sect;
(3) Any ship captain or airplane chief only in the cases mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of
the latter, during a military operation, likewise only in the cases mentioned in Article 32; or
(5) Any consul-general, consul or vice-consul in the case provided in Article 10.
NOTE: Under the Local Government Code [Secs. 444 (b) (1) (xviii) & 455 (b) (1) (xviii)],
mayors have again been given the authority to solemnize marriages.
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Sempio-Dy: Members of the Judiciary.-- The jurisdiction of the members of the SC, the CA, the
Sandiganbayan, and the Court of Tax Appeals to solemnize mariages is the entire country, w/c is
their territorial jurisdiction.
The jurisdiction of the RTC judges and judges of MTCs to solemnize marriages is their
territorial jurisdiction as defined by the SC.
Tolentino: Requisites for Authority of Priest or Minister: (1) He must be registered in the
office of the Civ. Registrar General; (2) he must have a written authority to solemnize marriages
given by his church or religious sect; (3) he must act w/in the limits of such authority; and (4) at
least one of the contracting parties must belong to the solemnizing officer's church or religious sect.
PEOPLE V. WHIPKEY [69 O.G. No. 42, p. 9678 (1973)] - A marriage performed by a minis ter whose
authority to solemnize a marriage has expired is void ab initio.
Ship Captains, Airplane Chiefs, Military Commanders.-- These officers can solemnize only one
kind of marriage-- a marriage in articulo mortis or at the point of death.
Art. 31. A marriage in articulo mortis between passengers or crew members may also be
solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in
flight, but also during stopovers at ports of call.
Art. 7 refers to an "airplane chief" but art. 31 refers to an "airplane pilot" who may not be
the captain or chief. We believe the controlling designation is "airplane chief." It is the head of the
crew and who has the command of the airplane who must be deemed to have been given by law the
authority to solemnize marriages.
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have
authority to solemnize marriages in articulo mortis between persons within the zone of military
operations, whether members of the armed forces or civilians.
Consul-generals, Consuls, Vice-consuls.-- An ambassador, even if he is the head of a diplomatic

mission, has no authority to solemnize marriage. The reason for this is that, while an amabassador
takes care of the relations bet. the Phils. and the country to w/c he is assigned, the consuls take care
of matters affecting Filipino citizens in the area of their responsibility.
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general,
consul or vice-consul of the Republic of the Philippines.
The issuance of the marriage license and the duties of the local civil registrar and of the
solemnizing officer with regard to the celebration of marriage shall be performed by said consular
official.
xxx
(2) Those solemnized by any person not legally authorized to perform marriages
unless church marriages were contracted with either or both parties believing in good faith
that the solemnizing officer had the legal authority to do so;
xxx
6. Marriage License (a formal requisite.)-- Articles 3 par. 2, 4 pars 1 & 3, 35 par. 3, 9 to

21 with exceptions in 27 to 34
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xxx
(2) A valid marriage licence except in the cases provided for in Chapter 2 of this Title;
xxx
xxx
xxx
An irregularity in the formal requisites shall not affect the validity of the marriage but
the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.
COSCA V. PALAYPAYON, JR. [237 S 249 (1994)]
F: Complainants allege that respondent judge solemnized marriages even w/o the requisite marriage
license. Thus, several couples were able to get married by the simple expedient of paying the marriage
fees to resp. Baroy, Clerk of Court II of the Mun. Trial Court of Tinambac, Camarines Sur, despite the
absence of a marriage license. xxx. As a consequence, their marriage contracts did not reflect any
marriage license. In addition, resp. Judge did not sign their marriage contracts and did not indicate the
date of solemnization the reason being that he allegedly had to wait for the marriage license to be
submitted by the parties w/c was usually several days after the ceremony. Indubitably, the marriage
contracts were not filed w/ the local civil registrar.
HELD: On the charge regarding illegal marriages, the FC pertinently provides that the formal
requisites of marriage, inter alia, a valid marriage license except in the cases provided for therein.
Complementarily, it declares that the absence of any of the essential or formal requisites shall
generally render the marriage void ab initio and that, while an irregularity in the formal requisites
shall not affect the validity of the marriage, the party or parties responsible for the irregularity shall
be civilly, criminally and administratively liable.
xxx
(3) Those solemnized without license, except those falling under Article 41;
xxx
REPUBLIC V. CA [236 SCRA 257 (1994)] - The certification by the Civil Registrar that the
alleged marriage license could not be found in his records is adequate to prove that no license
was issued.
F:
Angelina Castro and Edwin Cardenas were married in a civil ceremony in the city court of Pasay
w/o the knowledge of Angelina's parents. The marriage lasted only for a couple of mos. Angelina decided
to migrate to the US but wanted to put in order her marital status bef. leaving. She consulted a lawyer
regarding the possible annulment of her marriage. It was discovered that there was no license issued to
Cardenas by the Civil Registrar of Pasig. The Civil Registrar certified that the alleged license no. does not
appear from the records. The trial court denied the petition. The CA reversed the trial court, hence, this
petition for review on certiorari.
HELD: The presentation by the Civil Registrar is sanctioned by Sec. 29, R 132, ROC. The
certification of due search and inability to find, issued by the civil registrar of Pasig, enjoys
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probative value, he being the officer charged under the law to keep a record of all data relative to
the issuance of a marriage license. Unaccompanied by any circumstance of suspicion, and
pursuant to Sec. 29, R 132 of ROC, a cert. of due search and inability to find sufficiently proved
that his office did not issue the marriage license. There being no marriage license, the marriage of
Angelina and Edwin is void ab initio.
(1) Where to apply -- Arts 9-10
.
Art. 9. A marriage license shall be issued by the local civil registrar of the city or
municipality where either contracting party habitually resides, except in marriages where no
license is required in accordance with Chapter 2 of this Title.
Sempio-Dy: The solemnizing officer is not required to investigate w/n the license was issued in the
place required by law. (Peo. v. Jansen 54 P 176.)
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consulgeneral, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage
license and the duties of the local civil registrar and of the solemnizing officer with regard to
the celebration of marriage shall be performed by said consular official.
Sempio-Dy: By "Filipinos citizens abroad" may mean Filipinos permanently residing abroad or
who are mere transients or vacationists there.
Consuls on home assignment in the Phils. cannot solemnize marriages.
Salonga, Private International Law II, 1995 ed. (hereinafter Salonga): Consular Marriages.-xxx The prevailing rule is that a marriage performed before a consular or diplomatic agent
empowered by a sending State to officiate marriages is valid in the receiving State only if the latter
has agreed to his acting in that capacity.
(2) Requirements for issuance
(a) application -- Art. 11
Art. 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 the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil Status;
(5) If previously married, how, when and where the previous marriage was dissolved
or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge, in
case the contracting party has neither father nor mother and is under the age of 21 years.
The applicants, their parents or guardians shall not be required to exhibit their
residence certificates in any formality in connection with the securing of the marriage license.
(b) Proof of capacity -- Articles 12-14; Art. 21
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Art. 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 required by
this Article need not be sworn to and shall be exempt from the documentary stamp tax. The
signature and official title of the person issuing the certificate shall be sufficient proof of its
authenticity.
If either of the contracting parties is unable to produce his birth or baptismal
certificate or a certified copy of either because of the destruction or loss of the original, or if it
is shown by an affidavit of such party or of any other person that such birth or baptismal
certificate has not been received though the same has been required of the person having
custody thereof at least 15 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.
Tolentino: Documents Required.-- To prove the ages of the contracting parties, the ff. may be
required by the local civ. registrar:
(1) Original or certified copies of birth certificates.
(2) In the absence of birth certs., the original or certified copies of baptismal certs.
(3) In the absence of the above documents, the party may present his residence cert. or the
affidavit of 2 witnesses.
When Proof of Age Dispensed With:
(1) When the parents of the contracting parties appear personally bef. the local civ. reg.
and swear to the correctness of their ages;
(2) When the local civ. reg. is convinced, by merely looking at the parties that they have
the required ages;
(3) When a party has formerly married, but is widows, or divorced, or the previous
marriage has been invalidated. (see art. 13.)
Art. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate required in
the last preceding article, the death certificate of the deceased spouse or the judicial decree of
the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her
previous marriage. In case the death certificate cannot be secured, the party shall make an
affidavit setting forth this circumstance and his or her actual civil status and the name and
date of death of the deceased persons.
Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in
addition to the requirements of the preceding articles, exhibit to the local civil registrar, the
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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 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
applications for marriage license, and the affidavit, if one is executed instead, shall be attached
to said application.
Tolentino: Reason for parental consent.-- The parental consent of parties below 21 years is
required in order to supplement the natural incapacity of such parties, whose inexperience may lead
them to a union w/c is difficult or prejudicial for them.
Effect of Previous Marriage.-- A person below 21 who has been previously married, but
whose marriage has terminated by the death of the spouse does not need parental consent to
remarry even if he or she is still below 21.
Effect of RA 6809.-- The reduction of the age of majority and emancipation does not
affect the requirement of the present article, w/ respect to persons who have living parents.
Q: But when the person over 18 yrs. but below 21 yrs. is an orphan, not otherwise
incapacitated, he cannot be placed under guardianship and would have nobody "having legal
charge" of him. Whose consent will be required?
A: In view of the impossibility of compliance, it seems that "parental consent" need not be
secured.
Remarriage of Widowed Mother.-- A widowed mother who has remarried retains her
parental authority over her children (art. 212, FC), and thus, her consent is still required for the
marriage of a child below 21 yrs. old.
Specific Consent Required.-- The better view xxx is that the consent must refer to
marriage w/ a particular person. The law intends that the child should benefit from the experience
of the parent, and that the latter save the former from what may be an unwise union.
Form of Consent.-- It must be in writing. It may be made in either of 2 ways: (1) by the
parent personally appearing bef. the local civ. reg. and signing the instrument of consent, or (2) by
executing an affidavit of consent in the presence of 2 witnesses w/o having to appear bef. the local
civ. reg.
Revocation of Consent.-- Once consent has been given and the proper license issued, it
should be irrevocable except for cause. To allow its revocation, w/o any reason is to subject the
effectivity of the license issued by the govt to the whim and caprice of the parent. xxx We believe,
however, that revocation for just cause must be made known to the parties and to the local civ. reg.
to have any effect.
Effect of Want of Consent.-- Aside from the civil sanction of nullity of the marriage,
there is also a penal sanction. If the parties knowingly entered into the marriage w/o parental
consent, or the solemnizing officer has celebrated it knowing of such absence when it was needed,
they will become subject to the penal consequences imposed by Act No. 3613 and the RPC.
EIGENMAN V. GUERRA [5 C.A. Rep. 836 (1964)] - Parental consent may be made expressly or
impliedly, such as by the presence of the mother during the marriage ceremony, without any objections.
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Art. 21. When either or both of 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 or refugees from other countries shall, in lieu of the certificate of
legal capacity herein required, submit an affidavit stating the circumstances showing such
capacity to contract marriage.
Tolentino: The legal capacity of a foreigner to marry is recognized by our laws as governed by the
law of the country of w/c he is a citizen. This is in accordance w/ the nationality theory of
personal laws w/c is followed by the Phils.
Stateless Persons and Refugees.-- Q: What is the legal capacity of a stateless person?
A: Having no personal law of his own, since he owes no allegiance to any particular
country, his legal capacity should be determined by the laws of the Phils. under w/c he temporarily
enjoys protection. The provisions of the FC apply to him.
Salonga: The net effect of Art. 21 is to leave it to the Govt of the alien to decide almost
conclusively the question of w/n he or she can marry in the Phils. It is the interpretation of that
Govt through its diplomatic or consular officials, that is controlling, except where the M is
bigamous or universally incestuous. Any abuse of that discretion is a matter w/c the alien must
take up w/ his own Govt.
Q: Suppose, however, that, w/o such a cert., the marriage is solemnized-- is the marriage
valid?
A: Yes. The M shld be considered as valid, assuming that the lack of cert. is the only
defect. It is not one of the void marriages enumerated in the NCC (now the FC); the cert. of legal
capacity is not an essential requisite of marriage.
(c) Parental advice -- Art. 15
Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be
obliged to ask their parents or guardian for advice upon the intended marriage. If they do not
obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after
three months following the completing 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.
Tolentino: Effect of Emancipation.-- The need for parental advice depends on filial relationship
and not on parental authority.
Q: When the child is an orphan over 21 but below 25 yrs. old, he would be emancipated
and cannot be under the authority of a guardian. Who will give the parental advice in such a case?
A: The solution may be anomalous, but it seems that such advice is dispensed w/, due to
impossibility of compliance.
(d) Marriage Counselling -- Art. 16
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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 counsellor duly accredited by the proper government
agency to the effect that the contracting parties have undergone marriage counselling. Failure
to attach said certificate of marriage counselling shall suspend that 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 counselling referred to in the preceding paragraph.
Tolentino: Marriage Conselling.-- Both of the intended spouses are required to undergo marriage
counselling if one or both of them are bet. 18 and 25 yrs. of age.
Reason for the Requirement.-- It is intended to prepare the youth for entering into the
married state, w/ instructions on the responsibilities of the future couple to each other, to their
children, and to society.
(e) Publication -- Art. 17
Art. 17. The local civil registrar shall prepare a notice which shall contain the full
names and residences of the applicants for 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.
(f) Investigation of Impediments -- Art. 18.
Art. 18. In case of any impediment known to the local civil registrar or brought to his
attention, he shall note down the particulars thereof and his findings thereon in the application
for 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 corresponding bond
required for the issuance of the order.
(g) Payment of fees -- Art. 19.
Art. 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 a 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 by
their oath before the local civil registrar.
(h) Family Planning certificate -- PD 965
(3) Place where valid -- Art. 20
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Art. 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.
Tolentino: The automatic cancellation of the license is not a mere irregularity or defect; the license
is non-existent. The marriage is void ab initio.
(4) Period of validity -- Art. 20, supra.
(5) Duties of the Civil Registrar -- Articles 24-25
Art. 24. It shall be the duty of the local civil registrar to prepare the documents
required by this Title, and to administer oaths to all interested parties without any charge in
both cases. The documents and affidavits filed in connection with applications for marriage
licenses shall be exempt from documentary stamp tax.
Art. 25. The local civil registrar concerned shall enter all applications for marriage
licenses filed with him in a registry book strictly in the order in which the same are received.
He shall record in said book the names of the applicants, the date on which the marriage
license was issued, and such other data as may be necessary.
BAVIERA CASE:
PEOPLE V. DAVID [13 CA Rep. 495 (1968)] - Official Receipt of the Local Civil Registrar due to lack of
the regular form may be considered as a valid license.
(6) When no license needed -- Articles 27-34

Chapter 2
MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT
Tolentino: Marriages of Exceptional Character.-- It is one on w/c the law considers of such a
nature as to dispense w/ the formal requirement of a marriage license. The marriages exempted
from the requirement of a marriage license are: (1) marriages in articulo mortis or on the point of
death, (2) marriages in isolated places, or where there are no available means of transportation, (3)
marriages among Muslims or among members of ehtnic cultural communities, and (4) marriages
of those who have lived together as husband and wife for at least 5 yrs.
Art. 27. In case either or both of the contracting parties are at the point of death, the
marriage may be solemnized without the necessity of a marriage license and shall remain valid
even if the ailing party subsequently survives.
Art. 28. If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the local civil registrar, the
marriage may be solemnized without the necessity of a marriage license.
Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer
shall state in an affidavit executed before the local civil registrar or any other person legally
authorized to administer oaths that the marriage was performed in articulo mortis or that the
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residence of either party, specifying the barrio or barangay, is so located that there is no
means of transportation to enable such party to appear personally before the local civil
registrar and that the officer took the necessary steps to ascertain the ages and relationship of
the contracting parties and the absence of a legal impediment to the marriage.
Art. 30. The original of the affidavit required in the last preceding article, together
with a legible copy of the marriage contract, shall be sent by the person solemnizing the
marriage to the local civil registrar of the municipality where it was performed within the
period of 30 days after the performance of the marriage.
Art. 31. A marriage in articulo mortis between passengers or crew members may also
be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the
place is in flight, but also during stopovers at ports of call.
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise
have authority to solemnize marriages in articulo mortis between persons within the zone of
military operations, whether members of the armed forces or civilians.
Art. 33. Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of marriage license, provided
that they are solemnized in accordance with their customs, rites or practices.
Art. 34. No license shall be necessary for the marriage of a man and a woman who
have lived together as husband and wife for at least five years and without any legal
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 qualifications of the contracting parties and
found no legal impediment to the marriage.
Tolentino: This art. intends to facilitate and encourage the marriage of persons who have been
living together in a state of concubinage for more than 5 yrs. The publicity and other attendant
inconveniences in securing the marriage license, might be embarrassing to such persons and deter
them from legalizing their union.
Sempio-Dy: Besides, the marriage of the parties will result in the legitimation of natural children
born to them during their cohabitation.
Note: The fact of absence of legal impediment bet. the parties must be present at the time
of the marriage, not during their 5-yr. cohabitation.
II. EFFECT OF LACK OF REQUISITES
A. 1. Difference in sex.-- lack of it: void
2. Some form of ceremony.-- lack of it: void
3. Legal capacity.-- Lack of it.-- General rule: void
Exception: Age.-- Art. 45 par. 1
Impotence.-- Art. 45 (5), voidable
Disease.-- Art. 45 (6), voidable
4. Lack of consent.-- voidable
Except: Mistake as to identity.-- void [Art. 35 (5)]
5. Authority of solemnizing officer.-- lack of it: void
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Except: Art. 45 (1)

6. Marriage License.-- lack of it: void
Exceptions: Articles 27-34, supra.
B. VOID AND VOIDABLE MARRIAGES
Chapter 3
VOID AND VOIDABLE MARRIAGES
Balane: A defective marriage in this country is either void or voidable. A voidable marriage
produces the effect of a valid marriage, until annuled.
Void Marriages
Tolentino: The following marriages are void in spite of their omission from the enumeration
contained in articles 35 to 38: (1) Marriages where intent to marry is totally wanting (e.g.,
marriage in jest.); (2) Marriages not solemnized in accordance w/ law (e.g., marriages by proxy);
(3) Marriages bet. persons of the same sex.
Void and Voidable Marriages Distinguished.-- Fundamental distinction-- A void marriage is
deemed never to have taken place at all, while a voidable or annullable marriage is considered valid
and subsisting until it is set aside by a competent court. The following distinctions arise from this
general difference: (1) A void M can be attacked collaterally, while a voidable M can be attacked
only in a direct proc. for annulment; (2) A void M may be questioned even after the death of one
of the parties, while a voidable M can no longer be attacked after one of the parties is dead; (3) A
void M cannot be ratified or confirmed, while a voidable M is generally made perfectly valid by
ratification or confirmation, through continued cohabitation; (4) the validity of a void M may be
assailed by any one if the question becomes material, while an annullable M can generally be
attacked only by a party to it; and (5) the action or defense to declare the nullity of a void M
generally does not prescribe, while the action to set aside a voidable M prescribes.
Effect of Void Marriages:
On property Relations.-- A community prop. or conjugal partnership is formed, and is
dissolved and liquidated upon the declaration of nullity, but if either spouse contracted the marriage
in BF, his or her share is forfeited in favor of the children or the innocent spouse, as the case may
be. [see Art. 43(2)]
Status of Children.-- Such children are considered legitimate. (Art. 54.)
Effects of Voidable Marriages.-- A voidable marriage is valid and produces all its civil effects,
until it is set aside by judgment of a competent court in an action for annulment.
xxx
Under the FC, the rule applicable to marriages void from the beginning applies to voidable
marriages. (see Art. 50, FC. )
As to children born in voidable marriages, the NCC and the FC have the same rule; the
children are legitimate.
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Action to Annul Marriage.-- Annulment of M is an action in rem, for it concerns the status of the
parties, and status affects or binds the whole world. The res is the relation bet. the parties, or their
marriage tie.
Annulment and Legal Separation Distinguished: (1) Annulment (A) is caused by some
circumstance existing at the time of the M, while the cause of legal separation (LS) arises after the
celebration of the M; (2) an A of M terminates the marital bond bet. the parties while LS does not;
and (3) A of M, once final, cannot be set aside so as to restore the marital relation, while LS may
be terminated and marital relations resumed by the reconciliation of the parties.
Ratification of Voidable Marriage.-- The law does not fix a definite period during w/c this
cohabitation shld last in order to constitute ratification. xxx It is submitted that when the
cohabitation has continued for such a length of time, after the cause of nullity has ceased to exist,
as to give rise to a reasonable inference that the party entitled to bring the action for nullity prefers
to continue w/ the M, there is ratification w/c purges the M of its original defect.
Ratification refers to the right of action itself; prescription refers only to the remedy. There
can be no remedy where there is no more right of action.
Marriages Not Subject to Ratification (the law does not provide for their ratification):
(1) Where one of the spouses is incurably impotent;
(2) Where one of the spouses has an incurable sexually transmissible disease;
The defect of the M in these 2 cases is not one that merely affects consent. Ratification
cures a defect in consent; it cannot cure a physical defect.
The action to annul in these cases will exist as long as the period of prescription has not
expired.
(3) A marriage where a sane spouse marries an insane spouse w/o the knowledge of the
insanity. Although the insane spouse can ratify the M after recovering reason, the sane spouse
cannot be barred from asking for A even if he has continued to cohabit w/ the insane spouse after
learning of such insanity.
III. EFFECT OF DEFECTIVE MARRIAGES ON STATUS OF CHILDREN.-- Articles 54, 165
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.
Art. 165. Children conceived and born outside a valid marriage are illegitimate,
unless otherwise provided in this Code. (referring to Art. 54.)
Balane: General rule:
Children of voidable marriage are legitimate.

Children conceived and born of a void marriage are illegitimate. There
are two exceptions (Art. 54):
1. Art. 36
2. Art. 53
IV. PRIMARY PROOF OR EVIDENCE OF MARRIAGE.-- Articles 22, 23
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Art. 22. The marriage certificate, in which the parties shall declare that they take each
other as husband and wife, shall also state:
(1) The full name, sex, and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in
marriages provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in
appropriate cases;
(6) That either or both of the contracting parties have complied with the legal
requirement regarding parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlements, if any, attaching a copy
thereof.
Sempio-Dy: The marriage cert. is not an essential or formal requisite of marriage w/o w/c the
marriage will be void. (Madridejo v. De Leon, 55 P 1.). An oral marriage is, thus, valid, and
failure of a party to sign the marriage cert. (De Loria v. Felix, 104 P) or the omission of the
solemnizing officer to send a copy of the marriage cert. to the proper local civil registrar (Pugeda v.
Trias, 4 S 49) does not invalidate the marriage.
Art. 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 in Art. 6 and to
send the duplicate and triplicate copies of the certificate not later than 15 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 Art. 8.
Tolentino: Proof of Marriage.-- The best proof of the marriage is the marriage certificate. But
this is not the only proof. The declaration of one of the parties to the marriage, as well as of
persons who were present at its celebration, are competent proof of the marriage. Public and open
cohabitation as H & W after the alleged marriage, birth and baptismal certificates of children borne
by the alleged spouses, and a statement of such marriage in subsequent documents are likewise
competent evidence to prove the fact of marriage.
Presumption of Marriage.-- There is a prima facie presumption that a man and a woman living
maritally under the same roof are legally married. The reason is that such is the common order of
society, and if the parties were not what they hold themselves out as being, they would be living in
the constant violation of decency and law. (Perido v. Perido, 63 S 97, 98.)
Sempio-Dy: Remember that even if no one receives a copy of the marriage cert., the marriage is
still valid. (Jones v. Hortiguela, 64 P 179.)
LORIA V. FELIX [104 P 1 (1958)] - The signing of the marriage contract is a formal requirement of
evidentiary value, the omission of which does not render the marriage a nullity. "The signing of the
marriage contract or certificate was required by statute simply for the purpose of evidencing the act and to
prevent fraud. No statutory provision or court ruling has been cited making it an essential requisite - not
the formal requirement of evidentiary value, which we believe it is. The fact of marriage is one thing; the
proof by which it may be established is quite another."
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V. ACTION OF ANNULMENT OR DECLARATION OF NULLITY.-- Articles 48 to 52

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecuting attorney or fiscal assigned to it to appear 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 the cases referred to in the preceding paragraph, no judgment shall be based upon
a stipulation of facts or confession of judgment.
Tolentino: Effect of Collusion.-- [I]f the parties succeed in obtaining a decree of annulment by
collusion notwithstanding observance of the provisions of this Art., such decree must be held to be
absolutely void if no cause really existed. It would be against public policy.
Art. 49. During the pendency of the action and in the absence of adequate provisions
in a written agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. The Court shall give
paramount consideration to the moral and material welfare of said children and their choice
of the parent with whom they wish to remain as provided for in Title IX. It shall also provide
for appropriate visitation rights of the other parent.
BAVIERA CASES:
TOLENTINO V. VILLANUEVA [56 S 1 (1974)] - Where the husband filed a case for annulment on the
ground of concealment of pregnancy, and the wife failed to file a responsive pleading, the court referred
the case to the fiscal for investigation. However, the husband refused to show his evidence nor be
interrogated by the fiscal, hence, the court correctly dismissed the complaint for annulment. The
investigation of the fiscal is a prerequisite to the annulment of marriage where defendant has defaulted.
JOCSON V. ROBLES [22 S 521 (1968)] - Where the second wife filed an action for annulment, and the
husband also assailed the validity of the marriage claiming he was coerced to marry her by her parents
and brothers, and filed a motion for summary judgment supported by affidavits of the plaintiff's father and
brothers to this effect, and the plaintiff also submitted the case for judgment on the pleadings, the court
correctly denied the motion for summary judgment in view of provisions of the Civil Code expressly
prohibiting the rendition of a decree of annulment of marriage upon a stipulation of facts or a confession
of judgment. The affidavits of the wife's father and brothers practically amounts to these methods not
countenanced by the Civil Code.
VILLAROMAN V. ESTEBAN [73 O.G. 11736 (1976)] - (1) The principle of estoppel cannot apply to
defeat a suit for annulment of marriage on the ground that plaintiff was not of age when he contracted
marriage, since the ages of the contracting parties which require parental consent, cannot be modified or
altered by their joint act or omission or by that of either of them. (2) Staying with the wife in her residence
only on Saturdays and Sundays merely indicates transient sexual intercourse which is not considered as
cohabitation. This circumstance and the conduct of the man in abandoning his wife before reaching the
age of majority or according to the wife's version, 9 months after attaining legal age, negates the intention
on the part of the man to confirm or ratify a defective marriage by cohabiting and living with the woman
as her husband.

Effect of Annulment
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Art. 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 judgment 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.
Art. 43. The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership, as the
case may be, shall be dissolved and liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of the common children
or, if there are none, the children of the guilty spouse by a previous marriage or, in
default of children, the innocent spouse.
(3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said donee are
revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who
acted in bad faith as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall
be disqualified to inherit from the innocent spouse by testate and intestate
succession.
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations by reason of marriage and
testamentary dispositions made by one in favor of the other are revoked by
operation of law.
Art. 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.
Art. 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 sought to have the marriage
annulled was 18 years of age but below 21, and the marriage was solemnized
without the consent of the parents, guardian or person having substitute parental
authority over the party, in that order, unless after attaining the age of 21, 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 and both lived together 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;
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(4) That the consent of either party was obtained by force, intimidation or
undue influence, unless the same having disappeared or ceased, such party
thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to be
incurable; or
(6) That either party was afflicted with a sexually-transmissible disease
found to be serious and appears to be incurable.
Art. 102. Upon dissolution of the absolute community regime, the following
procedures shall apply:
xxx
(6) Unless otherwise agreed upon by the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated shall be
adjudicated to the spouse with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there is no such majority,
the court shall decide, taking into consideration the best interests of said children.
Art. 129. Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:
xxx
(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.
Art. 51. In said partition, the value of the presumptive legitimes of all common
children, computed as of the date of the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian, or the trustee of their property, may ask for the
enforcement of the judgment.
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.
NOTE: The word 'delivered' in par. 1 is wrong according to DLC as it is violative of Art. 777; it is
contrary to principles of succession.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect their persons.
Art. 53. Either of the former spouses may marry again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage shall
be null and void.
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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 Art. 53 shall likewise
be legitimate.
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.
Art. 53. Either of the former spouses may marry again after complying
with the requirements of the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.
Art. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the spouses, and the
delivery of the children's presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same shall not affect third
persons.
Tolentino: Effects of the Setting Aside of all Defective Marriages (whether they are void ab
initio, or voidable, or a subsequent marriage terminated upon reappearance of a spouse presumed
to be dead):
(1) There will be a liquidation, partition, and distribution of the properties of the spouses.
Liquidation involves the inventory of the properties and payment of the obligations of the
spouses and of the marriage.
Partition is the process in w/c the remaining properties will be divided into the various
portions to be allocated to all the parties.
Distribution is the delivery to the spouses and the children, in the proper cases, of the shares
or properties allocated to them respectively in the partition.
(2) In determining the share of each spouse in the properties of the M, the properties, or
their value, that had been donated in consideration of M by the innocent spouse to the spouse in
BF, shall be revoked by operation of law and returned to the innocent spouse to become part of his
distributable prop.
(3) The children conceived or born bef. the judgment becomes final are considered
legitimate. The judgment shall provide for their custody and support. Their presumptive legitime
from each parent (as if the parent died and they inherit from him or her on the date of final
judgment) shall be delivered to them in cash, prop. or securities.
(4) The innocent spouse may revoke the designation of the spouse in BF as beneficiary in
the former's life insurance policy.
(5) The spouse in BF shall be disqualified to inherit from the innocent spouse even under a
will or testament.
(6) The conjugal dwelling and the lot on w/c it is built will be given to the spouse w/ whom
the common children choose to remain, unless the parties agree otherwise.
(7) If both spouses acted in BF, all donations by reason of M from one to the other, and all
testamentary provisions made by one in favor of the other, are revoked by operation of law.
(8) The judgment, the partition and distribution of the prop. of the spouses, and the delivery
of the children's presumptive legitimes shall be recorded in the appropriate civil registry.
(9) After all the foregoing, the former spouses are free to marry again; otherwise, the
subsequent M shall be void.
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Liability for Damages.-- [I]t is submitted that in an appropriate case, damages may be recovered
by an injured party from another responsible for the nullity of a void or voidable marriage. The
bais of the liability will be the commission of an unlawful act or BF. Arts. 20 and 21 of the NCC
can serve as the legal basis for an action for damages.
VI. STATUS OF FOREIGN MARRIAGES.-- Art. 26
Art. 26. All marriages solemnized outside the Philippines in accordance with the laws
in force in the country, where they were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37, 38.
xxx.
Art. 35 (1) - below 18
(4) - bigamous or polygamous
(5) - mistake as to identity
(6) - non-registration with the LCR of the ff:
- judgment of annulment or absolute
nullity of the marriage
- partition and distribution of
properties of the spouses
- delivery of the children's presumptive
legitimes
Art. 36 - psychological incapacity
Art. 37 - incestuous marriages
Art. 38 - marriages that are void as against public policy
Balane: If the marriage w/c is solemnized abroad is void under Phil. law, it is considered void in
the Phils.
Exceptions: Art. 35, paragraphs 2 and 3.
Jovito Salonga, Private International Law II, 1995 ed. (hereinafter Salonga):
Philippine Law on Formal Validity.-- Phil. law adheres to the imperative rule: a marriage
formally valid where celebrated is valid elsewhere (the maxim locus regit actum is applied
compulsorily; the law of the place of celebration, the lex loci celebrationis, is solely decisive.) Par.
1 of Art. 17, NCC embodies the maxim locus regit actum: "The forms and solemnities of
contracts, wills, and other public instruments, shall be governed by the laws of the country in w/c
they are executed."
xxx To establish a valid foreign marriage, 2 things must be proven, namely, (1) the
existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by
convincing evidence. (Yao Kee v. Sy-Gonzales, supra.)
Marriage by Proxy.-- Proxy marriages, where permitted by the law of the place where
the proxy participates in the marriage ceremony, are entitled to recognition in countries adhereing
to the lex loci celebrationis rule, at least insofar as formal validity is concerned.
Baviera: Marriage by proxy abroad affects formal requisite only. It can be argued as
valid.
Philippine Law on Substantive Validity.-- W/ reference to marriages celebrated abroad, Phil. law
primarily refers to the law of the place of celebration. xxx The general rule expressed in the
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formula "valid where celebrated, valid everywhere" admits of at least 2 exceptions: (1) in the case
of Filipino nationals who marry abroad before Phil. consular or diplomatic officials; (2) in the
saving clause of Art. 26 par. 1.
xxx Art. 26 par. 1 of the FC is a domestic, internal rule applicable only to Filipino
nationals. However, universally incestuous marriages-- such as those bet. parents and children or
bet. brothers and sisters-- will be considered void here, whatever may be the nationality of the
spouses.
xxx As a general rule, a marriage should be upheld if valid according to the law of the
place of celebration, unless the M itself or the enjoyment of the incidents of the marital relationship
would offend the strongly-held notions of decency and morality of a State that has a close
relationship to the contracting parties.
Art. 26. xxx
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 Philippine law. (n) (as
amended by E.O. 227, dated July 17, 1987.)
Balane: This is the only instance where we recognized foreign divorce.
Take note that the requirements in Art. 52 need not be complied w/ because there is no
such requirement in Art. 26, par. 2.
Requisites.-- There are four requisites for this Article to apply:
1. The marriage must be one between a Filipino and a foreigner
2. Divorce is granted abroad.
3. Divorce must have been obtained by the alien spouse
4. Divorce must capacitate the alien spouse to remarry.
Query: Suppose the foreign spouse was a former Filipino citizen. Does the law require that the
foreign spouse was already a foreigner at the time the marriage was contracted?
A: There is no Supreme Court ruling on this. But a 1993 DOJ opinion tells us that Art. 26 does
not require that the alien spouse was already a foreigner at the time of the marriage.
Salonga: Art. 26 par. 2 applies to a situation where the alien spouse was the one who obtained
the divorce decree abroad capacitating him or her to remarry, in w/c case the Filipino spouse
shall likewise have the capacity to remarry.
Tolentino: This rule seems to place a Filipino citizen on a plane of inequality. The reason for this
is that our law does not allow the Filipino to seek a foreign divorce, hence, if he obtains one, it is
not recognized in the Phils. He is subject to the Phil. law on status, wherever he goes.
Historical Background of Art. 26, par. 2 (BEAVIERA CASE)
VAN DORN V. ROMILLO [139 S 139 (1985)] - According to Baviera, the second paragraph of Art. 26
was brought about by the case of Van Dorn v. Romillo, where the court held that an American husband
granted absolute divorce in his country is estopped from asserting his rights over property alleged ly held
in the Philippines as conjugal property by him and his former wife. To maintain, as the husband does, that
under our laws, the wife has to be considered still married to him and still subject to a wife's obligation
under the Civil Code cannot be just. Petitioner wife should not be obliged to live together with, observe
respect and fidelity, and render support to her husband. The husband should not continue to be one of her
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heirs with possible rights to conjugal property. SHE SHOULD NOT BE DISCRIMINATED AGAINST IN
HER OWN COUNTRY IF THE ENDS OF JUSTICE ARE TO BE SERVED.
TENCHAVEZ V. ESCANO [15 S 355] - supra. (Art. 15, NCC.)

MUSLIM CODE- P.D. 1083
Art. 13. (1) Application. The provisions of this Title shall apply to marriage and divorce
wherein both parties are Muslims, or wherein only the male party is a Muslim and the mar riage is
solemnized in accordance with Muslim law or this Code in any part of the Philippines.
(2) In case of a marriage between a Muslim and non-Muslim, solemnized not in accordance
with Muslim law or this Code (Muslim Code), the Civil Code of the Philippines shall apply.
Art. 29. (1) (Subsequent Marriage) By divorcee - (1) No woman shall contract a subsequent
marriage unless she has observed an idda of three monthly courses counted from the date of divorce.
However, if she is pregnant at the time of the divorce, she may remarry only after delivery.

PENAL SANCTIONS - ACT 3613, The Marriage Law, Secs. 30-42
Sec. 30-36. Superseded by New Civil Code, Now Title I, FC
Sec. 37. Influencing parties in religious respects. - Any municipal secretary or clerk of the
Municipal Court (now Local Civil Registrar), who directly or indirectly attempts to influence any
contracting party to marry or refrain from marrying in any church, sect, or religion or before any
civil authority, shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by
imprisonment for not more than one month and a fine of not more than two hundred pesos.
Sec. 38. Illegal issuance or refusal of license. - Any municipal secretary (now Local Civil
Registrar) or clerk of the Municipal Court of Manila (Local Civil Registrar) who issues a marriage
license unlawfully or who maliciously refuses to issue a license to a person entitled thereto or fails to
issue the same within twenty-four hours after the time when, according to law, it was proper to issue
the same, shall be punished by imprisonment for not less than one month nor more than two years,
or by a fine of not less than two hundred pesos nor more than two thousand pesos.
Sec. 39. Illegal solemnization of marriage. - Any priest or minister solemnizing marriage
without being authorized by the Director of the Philippine National Library (now Director of
National Library) or who, upon solemnizing marriage, refuses to exhibit his authorization in force
when called upon to do so by the parties or parents, grandparents, guardians, or persons having
charge; and any bishop or officer, priest, or minister of any church, religion or sect the regulations
and practices whereof require banns or publications previous to the solemnization of a marriage in
accordance with section ten (superseded by Art. 60, New Civil Code, now under Art. 12, EO No. 209,
as amended), who authorizes the immediate solemnization of a marriage that is subsequently
declared illegal; or any officer, priest or minister solemnizing marriage in violation of the provisions
of this act, shall be
punished by imprisonment for not less than one month nor more than two years, or by a fine of not
less than two hundred pesos nor more than two thousand pesos.
Sec. 40. Marriages in improper places. - Any officer, minister, or priest solemnizing marriage
in a place other than those authorized by this Act, shall be punished by a fine of not less than twenty
five pesos nor more than three hundred pesos, or both, in the discretion of the court.
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Sec. 41. Failure to deliver marriage certificate. - Any officer, priest or minister failing to
deliver to either of the contracting parties one of the copies of the marriage contract or to forward
the other copy to the authorities within the period fixed by law for said purpose, shall be punished by
imprisonment for not more than one month or by a fine of not more than three hundred pesos, or
both, in the discretion of the court.
Sec. 42. Affidavit on marriage "in articulo mortis." - Any officer, priest, or minister who,
having solemnized a marriage in articulo mortis or any other marriage of exceptional char acter,
shall fail to comply with the provisions of Chapter II of this Act (Chapter 2, Title III, New Civil
Code, now Title I, Family Code), shall be punished by imprisonment for not less than one month nor
more than two years, or by a fine of not less than three hundred pesos nor more than two thousand
pesos, nor both, in the discretion of the court.
Sec. 43. Unlawful signboards. - Any person who, not being authorized to solemnize
marriage, shall publicly advertise himself, by means of signs or placards placed on his residence or
office or through the newspapers, as authorized to solemnize marriage, shall be punished by impris onment for not less than one month nor more than two years, or by a fine of not less than fifty pesos
nor more then two thousand pesos, or both, in the discretion of the court.
Sec. 44. General penal clause. - Any violation of any provision of this Act not specifically
penalized, or of the regulations to be promulgated by the proper authorities, shall be punished by a
fine of not more then two hundred pesos or by imprisonment for not more than one month, or both,
in the discretion of the court.
Sec. 45. Disqualification of priests and ministers. - Any priest or minister of the gospel or
any denomination, church, sect, or religion convicted of the violation of any of the provisions of this
Act or of any crime involving moral turpitude, shall, in addition to the penal ties incurred in each
case, be disqualified to solemnize marriage for a period of not less than six months nor more than six
years at the discretion of the court. (As amended by Act No. 4236).
V. LEGAL SEPARATION
Tolentino: Divorce and Its Kinds.-- Divorce is the dissolution or partial suspension, by law, of
the marital relation; the dissolution being termed divorce from the bond of matrimony, or a vinculo
matrimonii; the suspension being known as divorce from bed and board, or a mensa et thoro. The
former is sometimes also called absolute, and the latter relative divorce.
Legal Separation and Separation of Property.-- In the former, there is a suspension of common
marital life, both as to person and property, while in the latter, only the property relation is affected,
and the spouses may be actually living together.
Legal Separation and Separation of Spouses.-- Legal Separation (LS) can be effected only be
decree of the court; but the spouses may be separated in fact w/o any judgment of the court. Under
the NCC, any contract for personal separation between husband and wife shall be void and of no
effect. [Art. 221 (1), NCC.] With the repeal of Art. 221, and the omission from the FC of a
similar provision, the rule prior to the NCC is restored, and such agreements are again valid.
Foreign Divorces.-- A foreign divorce bet. Filipino citizens, sought and decreed after the
effectivity of the NCC, is not entitled to recognition as valid in the Phils. This is still the rule under
the FC.
Baviera case:
TENCHAVEZ V. ESCANO [15 S 355 (1965)] - Where the wife, a Filipina, deserted her Filipino
husband, obtained a divorce in the U.S., married an American citizen, and later herself became an
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American citizen, the Filipino husband is entitled to legal separation conformably to Philippine law and to
damages. (1) A foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
New Civil Code, is not entitled to recognition as valid in the Philippines, and neither is the marriage
contracted with another party by the divorced consort, subsequenlty to the foreign decree of divorce,
entitled to validity in this country. (2) Invalid divorce entitles innocent spouse to recover damages
(P25,000 as moral damages; basis - 2176). (3) An action for alienation of affection against the parents of
one consort does not lie in the absence of proof of malice or unworthy motives on their part.
Note: WHAT IS IMPORTANT IS THE CITIZENSHIP AT THE TIME OF MARRIAGE.

Baviera - loophole: supposing the wife became an american citizen first, then divorced her Filipino
husband, would it still constitute as adultery giving rise to legal separation? [NO]
A. GROUNDS
ART. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;
(3) Attempt of respondent to corrupt or induce the 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;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than
one year.
For purposes of this Article, the term "child" shall include a child by nature or
adoption.
Balane: This is an exclusive enumeration.
Observe that some grounds would tend to overlap w/ the grounds for annulment. In such a
case, the aggrived party has the option, either to bring an action for annulment or for LS.
Paragraph (1).-- Tolentino: The violence must be of a serious degree, but does not have
to amount to an attempt against the life of the the petitioner., w/c is covered by par. (9). The
violence must be repeated, to the extent that common life w/ def. becomes extremely difficult for
the plaintiff.
It is submitted that the repeated physical violence or the grossly abusive language should
be committed only by one spouse and not by both to each other.
Paragraph (2).-- Tolentino: The physical violence or moral pressure to compel the
plaintiff to change religious or political affiliation need not be repeated. A single incident would be
enough.
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Balane: The pressure must be undue. It becomes undue when the other spouse is deprived
of the free exercise of his or her will.
Paragraph (3).-- Tolentino: If both spouses agree that the wife or a daughter engage in
prostitution, neither one should be allowed to obtain LS, on the principle that a person should come
to court w/ clean hands.
Paragraph (4).-- Tolentino: The crime for w/c the def. was convicted is immaterial.
Paragraph (5).-- Balane: This ground does not have to exist at the time of the marriage.
Distinguish this from Art. 46 (4).
Paragraph (6).-- Balane: Questions.-- (1) Will knowledge of one party that the other
was a lesbian or a homosexual bar the action for LS? (2) Does homosexuality contemplate sexual
orientation or does it contemplate only homosexual practice.
Baviera - homosexuality refers to practice, not by nature; if by nature, then Art. 36 will
apply.
Tolentino: On pars. 5 & 6.-- These grounds can be reason for actions for LS only when
they come to exist after the celebration of the marriage. If the defect had existed at the time of the
marriage, but the marriage had been ratified by continued cohabitation or the action to annul has
prescribed, it is submitted that the action for LS may n ot be subsequently brought.
Paragraph (7).-- Tolentino: Would this include a subsequent marriage by a person after a
declaration of presumptive death of the other spouse? It is submitted that every subsequent
marriage, where there is a subsisting prior marriage, should give the other spouse the right to ask
for LS.
Paragraph (8).-- Tolentino: Sexual Infidelity.-- The act of a wife in having sexual
intercourse w/ any other man not her husband will constitute adultery. On the other hand,
concubinage is committed by the husband in three ways: (1) by maintaining a mistress in the
conjugal dwelling: (2) by having sexual intercourse w/ the other woman under scandalous
circumstances; and (3) by cohabiting w/ her in any other place. xxx To equalize the situation of
husband and wife in this respect, the FC makes "sexual infidelity" sufficient ground for either to
justify the grant of LS.
Sexual Perversion.-- This includes all unusual or abnormal sexual practices w/c may be
offensive to the feelings or sense of decency of either the husband or the wife. But if the act of
sexual perversion is by free mutual agreement, neither party can ask for LS, bec. they are equally
guilty of the perverse act.
Balane: Sexual Perversion is a flexible concept. It is basically, a cultural thing.
BALANE CASE:
GANDIONCO V. PENARANDA [155 SCRA 725] - A civil action for LS, based on
concubinage, may proceed ahead of, or simultaneously w/, a criminal action for concubinage, bec.
said civil action is not one "to enforce the civil liability arising from the offense" even if both the
civil and criminal actions arise from or are related to the same offense. xxx
A decree of LS, on the ground of concubinage may be issued upon proof of preponderance
of evidence in the action for LS. No criminal proceeding or conviction is necessary.
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Paragraph (9).-- Tolentino: An attempt against the life of the plaintiff spouse, as a
ground for LS, implies that there is intent to kill. xxx [But] the act against the life of the plaintiff
spouse must be wrongful in order to constitute a ground for LS.
Baviera: Even if repeated physical violence, this can fall under No. 1.
Paragraph (10).-- Tolentino: Under Art. 101, "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.
Art. 56. The petition for legal separation shall be denied on any of the following
grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to 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 the decree of legal
separation; or
(6) Where the action is barred by prescription.
Balane: There are other grounds that are not found in Art. 56.
(7) Death of either party pendente lite. (Lapuz v. Eufemio, supra.)
Tolentino: LS is a personal right and does not survive death.
(8) Reconciliation pendente lite. (Art. 66 par. 1.)
Paragraph (1).-- Tolentino: Condonation as Defense.-- Condonation is the forgiveness
of a marital offense constituting a ground for LS, and bars the right to LS.
It may be express or implied. It is express when signified by words or writing, and it is
implied when it may be inferred from the acts of the injured party.
Balane: Condonation is pardon w/c comes after the offense.
MATUBIS V. PRAXEDES [109 P 788 (1960)] - The law specifically provides that legal
separation may be claimed only by the innocent spouse provided the latter has not condoned or
consented to the adultery or concubinage committed by the other spouse; and plaintiff having
condoned and/or consented IN WRITING to the concubinage committed by the defendant husband,
she is now undeserving of the court's sympathy.
Baveria: The stipulation though void is equivalent to express consent.
Paragraph (2).-- Consent.-- Tolentino: Consent is the agreement or conformity in
advance of the commission of the act w/c would be a gorund for LS.
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Paragraph (3).-- Connivance.-- Tolentino: Connivance is distinguished from consent in

that consent is unilateral, or an act of only one spouse. Connivance implies agreement, express or
implied, by both spouses to the ground for LS.
Paragraph (4).-- Recrimination.-- Tolentino: Recrimination is a countercharge in a suit
for LS that the complainant is also guilty of an offense consituting a ground for LS. This defense
is based on the principle that a person must come to court w/ clean hands.
Paragraph (5).-- Effect of Collusion.-- Tolentino: Collusion is the agreement bet.
husband and wife for one of them to commit, or to appear to commit or presented in court as
having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the
purpose of enabling the other to obtain LS.
B. LIMITATION OF ACTION
Art. 57. In action for legal separation shall be filed within five years from the time of
the occurrence of the cause.
Tolentino: The law does not encourage LS, and provides for prescription of the action even when
the offended party has not had knowledge of the cause. xxx If plaintiff does not come to know of
the ground for LS, and 5 yrs. expire from the date of its occurence, he cannot sue for LS.
Baviera cases:
BROWN V. YAMBAO [54 O.G. 1827 (1957)] - In an action for legal separation on the ground of
adultery filed by the husband, even though the defendant wife did not interpose the defense of
prescription, nevertheless, the courts can take cognizance thereof, because actions seeking a decree of
legal separation or annulment of marriage, involve public interest, and it is the policy of our law that no
such decree be issued if any legal obstacles thereto appear upon the record. Also, the husband was guilty
of commission of the same offense by living with another woman.
Baviera: This is an exception the Rules of Court provision that defenses not raised in the pleadings
will not be considered, since provisions on marriage are substantive in nature.
C. HEARING
Art. 58. An action for legal separation shall in no case be tried before six months shall
have elapsed since the filing of the petition.
Tolentino: This article is intended to give the spouses a chance to reconcile.
LAPUZ V. EUFEMIO [43 S 177 (1972)] - infra.
Balane: Incidental matters may be heard even during the six-months cooling-off period.
Rufus Rodriguez, The FAMILY CODE of the Philippines Annotated, 2nd ed. (hereinafter,
Rodriguez): During the six month period, the court may still act to determine the custody of the
children, alimony and support pendente lite.
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ARANETA V. CONCEPCION [99 P 709 (1956)] - Evidence not affecting the cause of
separation, like the actual custody of the children, the means conducive to their welfare and
convenience during the pendency of the case, should be allowed so that the court may determine
which is best for their custody.
SOMOSA-RAMOS V. VAMENTA [46 S 110 (1972)] - An ancillary remedy of preliminary
mandatory injunction is not barred by the six-month statutory suspension of trial in an action for
legal separation. In this case, the wife filed a petition for legal separation, and a motion for
preliminary mandatory injunction for the return of what she calims to be her paraphernal and
exclusive property.
Art. 103 NCC is not an absolute bar to the hearing of a motion for preliminary injunction
priot to the expiration of the 6 months period. xxx That the law remains cognizant of the need in
certain cases for judicial power to assert itself is discernible from what is set from what is set forth
in Art. 104 NCC (now Art. 61, FC.) Here, there would appear to be a recognition that the question
of management of the spouses' respective property need not be left unresolved even during the 6
months period. An administrator may even be appointed for the management of the prop. of the
conjugal partnership.
PACETE V. CARRIAGA [231 SCRA 321] - (Art 58) of the FC mandates that an action for LS
must "in no case be tried before six months shall have elapsed since the filing of the petition,"
obviously in order to provide the parties a "cooling-off" period. In this interim, the court should
take steps toward getting the parties to reconcile.
Art. 59. No legal separation may be decreed unless the Court has taken steps toward
the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation
is highly improbable.
Tolentino: The effort of the Court is not limited to the period before trial (at least 6 mos.) but may
be continued even after trial and before judgment is rendered.
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the parties and to take care that the evidence is not
fabricated or suppressed.
BALANE CASE:
DE OCAMPO V. FLORENCIANO [107 P 35 (1960)] - Where the husband, after finding the
wife guilty of adultery sent her to Manila to study beauty culture, and there she committed another
adultery with a different man, and the husband filed a petition for legal separation, the wife's
admission to the investigating fiscal that she committed adultery, in the existence of evidence of
adultery other than such confession, is not the confession of judgment disallowed by the Code.
What is prohibited is a confession of judgment - a confession done in court or through a pleading.
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(1) "Where there is evidence of the 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 but upon the evidence presented by the plaintiff. What the law prohibits is
a judgment based EXCLUSIVELY on defendant's confession."
(2) The failure of the husband to actively search for his wife who left the conjugal home
after his discovery of her illicit affairs, and to take her home does not constitute the condonation or
consent to the adultery. It was not his duty to search for her.
(3) The petition should be granted based not on the first adultery, which has already prescribed, but on the second adultery, which has not yet prescribed. Adapted.
1. RIGHTS AND OBLIGATIONS OF PARTIES
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled
to live separately from each other.
The court, in the absence of a written agreemnt 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 and duties as
those of a guardian under the Rules of Court.
Balane case:
SABALONES V. CA [230 SCRA 79] - In case of an action for legal separation, where the
spouses did not agree as to who will administer the conjugal partnership, the Court may appoint
one of the spouses. Such appointment may be implied.
xxx
While it is true that not formal designation of the administrator has been made, such
designation was implicit in the decision of the trial court denying the petitioner any share in the
conjugal properties (and thus also disqualifying him as administrator thereof.) That designation
was in effect approved by the CA when it issued in favor of the resp. wife the preliminary
injunction now under challenge.
Art. 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.
Art. 49. During the pendency of the action and in the absence of adequate
provisions in a written agreement between the spouses, the Court shall provide for
the support of the spouses and of their common children. The Court shall give
paramount consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation rights of the other parent.
Tolentino: Effects of Filing Petition:

(1) The spouses can live separately from each other
(2) The administration of the common prop., whether in absolute community or conjugal
partnership of gains, shall be given by the Court to either of the spouses or to a third person, as is
best for the interests of the community.
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(3) In the absence of a written agreement of the spouses, the Court shall provide for the
support bet. the spouses and the custody and support of the common children, taking into account
the welfare of the children and their choice of the parent w/ whom they wish to remain.
(4) When the consent of one spouse to any transaction of the other is required by law,
judicial authorization shall be necessary, unless such spouse voluntarily gives such consent.
Alimony "pendente lite."-- During the pendency of the suit for legal separation upon a complaint
filed and admitted, it is the duty of the court to grant alimony to the wife and to make provisions
for the support of the children not in the possession of the father.
Should def. appear to have means to pay alimony and refuses to pay, either an order of
execution may be issued or a penalty for contempt may be imposed, or both.
Custody of the Children.-- While the action is pending, the custody of the children may be
determined in one of two ways: (1) by agreement of the spouses w/c shall not be distrubed unless
prejudicial to the children; and (2) by court order, w/c shall be based on the sound discretion of the
judge, taking into account the welfare of the children as the ruling consideration.
Baviera case:
LERMA V. CA [61 S 440 (1974)] - Where the husband filed a complaint for adultery against the
wife, and the wife filed a petition for legal separation in bad faith, the wife having been convicted
of adultery in the meantime, she is not entitled to support pendente lite. "The right to separate
support and maintenance, even from the conjugal partnership property, presupposes the existence
of a justifiable cause for the spouse claiming such right to live separately. A petition in bad faith,
such as that filed by the one who is himself or herself guilty of an act which constitutes a ground
for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support."
2. EFFECT OF DEATH OF A SPOUSE

BAVIERA CASES:
LAPUZ V. EUFEMIO [43 S 177 (1972)] - The death of the plaintiff BEFORE a decree of legal
separation abates such action. "An action for legal separation which involves nothing more than
bed-and board separation of the spouses is purely personal. The Civil Code recognizes this (1) by
allowing ony the innocent spouse (and no one else) to claim legal separation; (2) by providing that
the spouses can, by their reconciliaton, stop or abate the proceedings and even rescind a decree of
legal separation already granted. Being personal in character, it follows that the death of one party
to the action causes the death of the action itself - actio personalis moritur cum persona." Even if
property rights are involved, because these rights are mere effects of the decree of legal separation,
being rights in expectation, these rights do not come into existence as a result of the death of a
party. Also under the Rules of court, an action for legal separation or annulment of marriage is not
one which survives the death of spouse.
MACADANGDANG V. CA [108 S 314 (1981)] - The death of a spouse AFTER a final decree of
legal separation has no effect on the legal separation. The law clearly spells out the effect of a final
decree of legal separation on the conjugal property. Therefore, upon the liquidation and
distribution conformably with the effects of such final decree, the law on intestate succession
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should take over the disposition of whatever remaining properties have been allocated to the
deceased spouse.
D. DECREE OF LEGAL SEPARATION

1. EFFECTS
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net profits earned
by the absolute community or the conjugal partnership, which shall be forfeited in accordance
with the provisions of Article 43 (2);
Art. 43. The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership, as
the case may be, shall be dissolved and liquidated, but if either spouse contracted
said marriage in bad faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse;
(3) The custody of the minor children shall be awarded to the innocent spouse, subject
to the provisions of Article 213 of this Code; and
Art. 213. 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.
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise.
(4) The offending spouses 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.
Balane: There are four (4) other effects
(5)
(6)
(7)
(8)
Donation propter nuptias may be revoked by the innocent spouse. (Art. 64.)
Designation of the guilty spouse in the insurance policy may be revoked. (id.)
Cessation of the obligation of mutual support. (Art. 198.)
Wife may continue using the surname before the decree of legal separation. (Art. 372,
NCC.)
Tolentino: Support and Assistance.-- After the decree of LS, the obligation of mutual support
bet. the spouses ceases; however, the court may order that the guilty spouse give support to the
innocent spouse. (Art. 198.)
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Successional Rights.-- The guilty spouse, by virtue of the decree of LS becomes

disqualified to succeed the innocent spouse. She would not even be entitled to the legitime. xxx
But if the will is executed after the decree, the disposition in favor of the offender shall be valid.
Balane case:
LEDESMA V. INTESTATE ESTATE OF PEDROSA [219 SCRA 806] - The law mandates
the dissolution and liquidation of the prop. regime of the spouses upon finality of the decree of LS.
Such dissolution and liquidation are necessary consequences of the final decree. This legal effect
of the decree of legal separation ipso facto or automatically follows, as an inevitable incident of,
the judgment decreeing the LS for the purpose of determining the share of each spouse in the
conjugal assets. (citing Macadangdang v.CA, 108 SCRA 314.)
Art. 64. After the finality of the decree of legal separation, the innocent spouse may
revoke the donations made by him or by her in favor of the offending spouse, as well as the
designation of the latter as a beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donation 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 5 years
from the time the decree of legal separation become final.
2. RECONCILIATION
Art. 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.
Tolentino: Concept of Reconciliation.-- Reconciliation is a mutual agreement to live together
again as husband and wife. It must be voluntary mutual agreement.
xxx
It is submitted that the fact of resuming common life is the essence of reconciliation and
terminates the legal separation even if the joint manifestation has not been filed in court.
Balane: Contrary view.-- Technically, what will set aside the decree of LS is the filing of a joint
verified manifestation of reconciliation. Without that, the court cannot act motu proprio.
Art. 66. The reconciliation referred to in the preceding Article 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.
The court order containing the foregoing shall be recorded in the proper civil
registries.
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Balane: Effects of Reconciliation:

(1) Custody over the children.-- Joint custody is restored.
(2) Compulsory and intestate succession is restored.
(3) Testamentary succession.-- There is no revival. Reconciliation will not necessarily
revive the institution of the guilty spouse in the will of the innocent spouse.
(4) Donation propter nuptias will remain revoked.
Art. 67. The agreement to revive the former property regime referred to in the
proceeding 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 separated 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.
Tolentino: New Regime.-- The FC authorizes the spouses to agree to "revive their former
property regime." We submit that this is not restrictive and does not limit the spouses to the regime
they had before the decree of LS. The spouses are placed in the same position as before the
marriage and could establish the property regime they want, as if making a marriage settlement.
xxx If they do not agree on any system, then by law their new regime will be that of separation of
property.
V. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Tolentino: Dual Aspect of Family Relations.-- There are 2 aspects in family relations, one
internal and another external. In the internal aspect, w/c is essentially natural and moral, the
family is commonly known to be sacred and inaccessible even to the law. It is only in the external
aspects, where third persons and the public interest are concerned, that the law fixes rules
regulating family relations.
A. IN GENERAL
Art. 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.
Balane: These are called legal obligations but they are more of a statement of policy. An action for
specific performance is not proper to enforce these obligations. The only possible consequences
are found in Art.100 for ACP and 127 for CPG.
With regard to the mutual obligation of fidelity, there are consequences both civil and
criminal (adultery or concubinage.).
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With respect to support, there are legal provisions in the FC w/c carry out the duty.
Tolentino: Right of Cohabitation.-- Marriage entitles the husband and wife to each other's
society, that is, they are mutually entitled to cohabitation or consortium. This means that they shall
have a common life, under the same roof, to better fulfill those obligations inherent in the
matrimonial status.
Scope of Right.-- The right of cohabitation includes domestic and sexual community of
the spouses, the extent of both of w/c will differ according to the circumstances. xxx [T]he
spouses will be considered as living together, although driven by the stress of circumstances or
pecuniary difficulties to separate, if there is no intention on the part of either to sever their marital
relations permanently.
xxx But for the purpose of the law, only the tangible and material aspect of cohabitation
can be taken into account. The law is powerless to impose that intimacy of life w/c is the basis of
conjugal peace and happiness.
Sexual Relations.-- Although a husband is entitled to sexual relations w/ his wife, and it
is not rape to force the wife to have sexual relations against her will, this right is not absolute. The
right involves only normal intercourse.
Legal Sanction for Cohabitation.-- Cohabitation by the parties must be spontaneous and
cannot be imposed by the law or the courts. The only possible sanction is patrimonial in nature. If
the husband refuses to live w/ the wife, he can be compelled to pay her a pension, and indemnity
for damages; and if the wife refuses to live w/ the husband, he can refuse to support her.
Use of Force.-- The husband cannot by the use of force, even of public authority, compel
the wife to return home. Such remedy would be a violation of personal dignity and security. xxx
Modern law abhors imprisonment for debt, and coercive measures to compel the wife to live w/ the
husband would be worse than imprisonment for debt.
Remedies for Interference.--Any person who interferes w/ the right of the spouses to
cohabitation may be held liable for damages under Art. 26, FC.
Mutual Fidelity.-- This fidelity is the loyalty w/c each should observe toward the other, the wife
having nothing to do w/ another man, nor the husband w/ another woman.
Mutual Help.-- Mutual help involves care during sickness, and bearing the inconvenience caused
by such sickness, of the other spouse. xxx
The obligation of mutual help, however, is not limited to material assistance and care
during sickness. It extends to everything that involves moral assistance, and mutual affection and
regard.
There are positive legal provisions w/c reveal the scope of this duty and implement the
general rule laid down in the present article. Among them are: (1) the legitimacy of defense of a
spouse (Art. 11, RPC); (2) the increase in penalty in a crime by one spouse against the person of
the other (Art. 246, id.); (3) the incapacity of one spouse to testify against the other (R123, Sec.
26, ROC); (4) the right of one spouse to object to adoption of or by the other (Arts. 185 and 188);
and (5) the prohibition of donations between them (Art. 87.)
Legal Sanction.-- The only aspect of the obligation of mutual help for w/c there is a legal
sanction is the duty to support. This can be enforced by court action. But the law cannot penetrate
to the intimate relations in the home in order to enforce the mutual obligations of care, of moral
assistance, and of mutual affection and regard.
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Position of Spouses in the Family.-- The perfect parity of rights and duties of H & W has to be
reconciled w/ the need for unity of direction in the family. Since the power of direction cannot be
vested at the same time in 2 persons, the existence of a head of the family becomes imperative; and
both nature and tradition have given this prerogative to the husband
xxx This power of the H as head of the family, however, is not composed of rights and
prerogatives, but of duties and responsibilities, bec. the H does not use it for his personal benefit
but for the greater and higher interests of the family.
Chastisement of Wife.-- Chastisement is unlawful, and it has been held that the H should
not be permitted to inflict personal chastisement upon his wife, even for the grossest outrage. The
only possible exception to this rule under our law is that given in Art. 247 of the RPC, w/c
provides that:
Art. 247. Any legally married person who, having surprised his spouse in
the act of committing sexual intercourse with another person, shall kill any of them
or both of them in the act or immediately thereafter, or shall inflict upon them any
serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon
them physical injuries of any other kind, he shall be excempt from punishment.
Love Between Spouses.-- Mutual love cannot be compelled or imposed by court action.
BALANE CASES:
ARROYO V. VASQUEZ [42 P 54] - Def. is under obligation both moral and legal, to return to
the common home and cohabit w/ plaintiff. But the great weight of authorities, however, is
strongly convincing that it is not w/in the province of the courts in the Phils. to compel anyone of
the spouses to cohabit w/ and render conjugal rights to the other.
VAN DORN V. ROMILLO [139 SCRA 139] - supra. (Art. 15 NCC.)
To maintain, as private resp. does, that under our laws, petitioner has to be considered as
still married to private resp. and still subject to a wife's obligations under Art. 109 et seq. of the
NCC cannot be just. Petitioner should not be obliged to live together w/, observe respect and
fidelity, and render support to private resp. The latter should not continue to be one of the heirs w/
possible rights to conjugal property. She should not be discriminated against in her own country if
the ends of justice are to be served.
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide.
The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the solidarity of the family.
Balane: The power to fix residence is joint. Whatever residence is fixed should bind both parties.
Tolentino: The right to fix family domicile includes the right to change it, so long as the spouses
agree to the transfer.
Separate Residence.-- It can be said that any of the grounds for LS would be sufficient for a
spouse to have a separate domicile, if he or she prefers that to LS.
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Art. 70. The spouses are jointly responsible for the support of the family. The
expenses for such support and other conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income of or fruits of their separate properties.
In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied
from their separate properties.
Balane: Art. 70 is an implementation of the third duty of the spouses, that of support. Correlate
this w/ Art. 194.
Where to get the funds? There are three sources in the order of priority:
1. From the common property
2. From the income or fruits of the separate property
Note: Numbers 1 and 2 are different sources only if the property relationship is ACP. In
CPG, numbers 1 and 2 will be the same.
3. From the separate property themselves.
Art. 71. The management of the household shall be the right and duty of both spouses.
The expenses for such management shall be paid in accordance with the provisions of Article
70.
Tolentino: What Properties Answerable.-- The order of liability for family support of the
different properties of the marriage is: first, the community prop., then the income of the spouses
or fruits of their separate properties, and finally, the separate properties of the spouses. The
liability of the spouses for the support of the family being joint, this may mean that they contribute
equally, regardless of the value of the respective properties of the spouses. However, this would
not be equitable. The better rule seems to be that the contribution should be proportionate to the
properties of the spouses.
Management of Household.-- In view of the silence of the law on how the disagreement bet. the
spouses in the management of the household shall be settled, the custom should be observed, and
the wife's position should be given priority.
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or
commits acts which tend to bring danger, dishonor or injury to the other or to the family, the
aggrieved party may apply to the court for relief.
Tolentino: What Relief May Be Granted.-- Under the NCC, when one party applies for relief
bec. of the acts or negligence of the other spouse, "the court may counsel the offender to comply
with his or her duties, and take such measures as may be proper." Notwithstanding this omission
in the FC, we believe that the court has full freedom to determine the kind of relief that may be
given. The relief, however, must be lawful.
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or
activity without the consent of the other. The latter may object only on valid, serious, and
moral grounds.
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In case of disagreement, the court shall decide whether or not:

(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting obligation shall be enforced against the
community property. If the benefit accrued thereafter, such obligation shall be enforced
against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good
faith. (words in italics were omitted in the text that Malacanang released.)
Tolentino: Disposition of Products of Activity.-- May the husband or wife engaged in a
profession or business freely dispose of the products of such activity? A distinction should be
observed.
If the disposition is in the course of the professional or commercial activity, the spouse
should be free to dispose of the products of such activity. xxx But if the funds will be used to buy
real estate, then the spouse should act jointly, if the property regime of the marriage is absolute
community or conjugal partnershiup of gains, bec. such funds are common prop. of the marriage.
B. OBLIGATION TO LIVE TOGETHER
ARROYO V. ARROYO [42 S 54 (1921)] - The courts can make a judicial declaration of
abandonment without sufficient justification but it cannot compel cohabitation, consortium being a
purely personal right. However, the courts can impose economic sanctions or such unjustified
departure from the conjugal dwelling.
PEREZ V. PEREZ [109 P 656 (1960)] - Material injury as used in Article 116 of the Civil Code
(Art. 72 of the Family Code) does NOT refer to patrimonial (economic) injury or damage, but to
personal (i.e. physiical or moral) injury to one of the spouses since Art. 116 lies in the chapter
concering PERSONAL RELATIIONS between husband and wife.
RAM
3/16/96
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CIVIL LAW REVIEW

Notes, Cases and Commentaries on

Compiled by Lianne Tan

PHILIPPINE CIVIL LAW

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- Art. 35 (1) - must not be below 18

Balane: This is a qualified divorce law.

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Requisites of Art. 26 par. 2:

(not in Baviera's outline)

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Art. 35. When a person, claimining to be injured by a criminal offense, charges

Bigamy - Art. 349, RPC. Contracting of second or subsequent marriage:

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PRESUMPTION OF SIMULTANEOUS DEATH

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Prodigality.-- A spendthrift or prodigal is "a person who, by excessive drinking,

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B. Restriction on Capacity to Act

- Baviera - basis of liability: quasi-contract

2. Insanes and Imbeciles

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b. Delicts & Quasi-Delicts

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II. KINDS OF PERSONS

BALANE/ BAVIERA CASE:

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(not in Baviera's outline)

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