182206489-family-code-ppt.ppt

FAMILY CODE (as amended)

ATTY. ALBINO (ALVIN) V. GONZALES Dean, College of Law Chairman, People’ Law Enforcement Board President, Trial Lawyer’s Association of the Philippines (Pangasinan Chapter)

IF YOU FAIL TO PREPARE PREPARE TO FAIL

MARRIAGE

marriage- special contract - Permanent union - Between man and woman - Entered into an accordance with law - For the establishment of conjugal and family life

Aspects : -- 1. as a contract : - only man and woman can enter - permanent- only death can extinguish - rights and obligations not subject to stipulations but fixed by law except- marriage settlement on property regime. - breach results in penal and civil sanctions.

As a status- inviolable social institution - foundation of family - institution of public order or policy - implication in two fieldspersonal rights property relations

Requisites : -essential1. Legal capacity of parties, 18 age, male and female no impidements in 37 or 38 2. consent freely given in the presence of solemnizing officer.

-formal3. Authority of solemnizing officer 4. Marriage ceremony ( no form or rites required) appearance of parties before solemnizing officer personal declaration that they take each other as husband or wife in presence of two witnesses of legal age.

If there was no marriage ceremony, as when the parties merely signed a marriage contract without the presence of the solemnizing officer, there is no marriage to speak of, since there is no actual marriage ceremony performed between the parties by the solemnizing officer, hence, there is no need to file a summary proceding to declare the marriage void. (Morigo vs People, 476 SCRA 562 (2005).

The mere private signing of a marriage contract bears no semblance of a valid marriage, and thus, need no judicial declaration of nullity. (Morigo, supra)

5. Valid marriage license, except ; a- marriage in articulo mortis (either or both, even if survived ) b- residence of either is so located that no means of transportation to appear before local civil registrar c- marriage among muslims or members of ethnic cultural communities, accdg. to customs rites and practices. d- Marriage between man and woman who have cohabited for five years without legal impediment to marry. E- Celebrated in country where no marriage license is required.?

In Sevilla vs Cardenas, 497 SCRA 428, the certification issued by the Civil Registry of San Juan to the effect that “no marriage license No. 2770792 was ever issued by this office” was presented as evidence to prove the absence of marriage license for the purpose of declaring the marriage void. Is the certification sufficient?

No. The certification to be issued by the local civil registrar must categorically state that the document does not exist in his office or the particular entry could not be found in the register despite diligent search. Such certification shall be sufficient proof of lack or absence of record stated in Section 28, Rule 132 of the Rules of Court.

If the parties falsified their affidavit stating therein that they had lived as husband and wife for at least five years prior to the marriage to exempt themselves from the requirement of a marriage license, when in truth and in fact, they have fallen short of the minimum five year requirement, will they be estopped from questioning the validity of their marriage or may the marriage be still declared void on ground of lack of a valid marriage license?

The Court held that the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of marriage license. The falsity of the allegation in the affidavit, which would have qualified their marriage as an exception to the requirement of a marriage license, cannot be a mere irregularity, for it refers to the quintessential fact that the law precisely required to be deposed and attested by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all.

“Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-law cohabitation period under Article 76 means a five-year period computed back from the date of celebration of marriage, and refers to a period of legal union had it not been for the absence of a marriage. It covers the years immediately preceding the day of the marriage, characterized by exclusivity- meaning no third party was involved at anytime within the five years- and continuity that is unbroken” (Republic vs Jose A. Dayot, GR No. 175581, March 28, 2008.)

Persons authorize to solemnize marriage : 1. incumbent members of the judiciary (within jurisdiction) 2. priests, etc., authorized by church, registered In the civil registrar general, acting within limits of written authority granted by church, one or both contracting parties belongs to the officer’s church 3. ship captain or airplane chief ( at sea, in flight, for entire voyage) in articulo mortis between passengers or crew members 4. military commander of a unit (battalion commissioned officer in articulo mortis within zone of military operation in the absence of Chaplain 5. consul-general, consul or vice consul in case of marriage between Filipino citizens abroad

Marriage Contract , signed by both and attested by solemnizing officer) In case of marriage in articulo mortis, if party unable to sign marriage certificate, one of the witness can write the name of the party, attested by the solemnizing officer

Place of solemnization- public Except- articulo mortis Remote place Request of both parties in writing, in a place or house designated by them in sworn statement

Absence of Essential Formal req.- marriage void

Except- belief in good faith of parties that party solemnizing is duly authorized

Examples- absence of essential req-lack of age- below 18 -parties of same sex -prohibited by law to marry each other -Absence of consent- marriage in jest

Examples of absence of formal req.-Person solemnizing has no authority except believed to be duly authorized -No marriage license, unless excepted -Expired marriage license -Absence of marriage ceremony

Defect in essential req. - marriage voidable Ex: -lack of parental consent -consent obtained by fraud -consent obtained by force

Irregularity in formal req. – marriage valid, but party responsible shall be civilly, criminally and administratively liable. Examples- marriage license not applied for in place specified - marriage license signed by mere employee of LCR with his authority, if without void - 10 day posting not complied with - no requirements on parental advice, marriage counseling or family planning seminar - no witness to marriage.

Validity of marriage license- 120 days from issuance, can be used anywhere in the country – - automatically cancelled if not used upon the expiration of expiry date stamped on face of marriage license.

Marriage certificate- not an essential or formal req. but best proof of marriage Copies to be given as follows : -original to the parties -duplicate and triplicate to the LCR of place of marriage within 15 days after marriage -quadruplicate- retained by the officer

2. In December 2000, Michael and Anna, after obtaining a valid marriage license, went to the Office of the Mayor of Dagupan City to get married. The Mayor was not there, but the Mayor’s secretary asked Michael and Anna and their witnesses to fill up and sign the required marriage contract forms. The secretary then told them to wait, and went out to look for the Mayor who was attending a wedding in a neighboring municipality. When the secretary cannot find the Mayor, he requested the ViceMayor to celebrate the marriage. Thereafter, Michael and Anna had three sons. [a] Is the marriage of Michael and Anna valid, voidable, or void? Explain your answer. [b] What is the status of the three children of Michael and Anna? Explain your answer.

Marriages solemnized outside country- valid there as such shall also be valid in this country, except : article 35 (1) no legal capacity to get married (4) bigamous or polygamous (5) consent lacking because of mistake in identity of the other Article 36- party psychologically incapacitated Article 37- incestuous marriage Article 38- marriage void by reason of public policy

Divorce obtained by a foreignerspouse, the Filipino spouse shall likewise have the capacity to remarry under Philippine law. (E.O. No. 227, july 17,1987)

In the case of Republic vs Orbecido III, (472 SCRA 114), the Court held that in applying the provision of the 2nd par. of Article 26 FC, the reckoning point is not the citizenship of the divorcing parties at birth or at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. Thus, where both parties were Filipino citizens at the time of the celebration of the marriage, but later on, one of them becomes naturalized as foreign citizen and thereafter obtains a valid divorce decree, Article 26 applies.

Art. 35 – void marriages 1. lack of age 2. no authority to solemnize- except either or both believed 3. No marriage license, except provided by law 4. bigamous/polygamous marriages except contracted in case spouse had been absent for four years or two years, and present spouse has a well-founded belief that absent spouse was already dead.

4. contracted through mistake of one party as to the identity of the other 5. subsequent marriages void under Art. 53 (subsequent marriage without delivering the presumptive legitimes of compulsory heirs.

Subsequent bigamous marriageValid if contracted after the absence of four (4) years, if the spouse has a wellfounded belief that the absent spouse is already dead.

But, two (2) years absence sufficient in case of disappearance under circumstances indicating danger of death : a- lost during sea voyage or airplane missing b- missing in action in war c- under danger of death under other circumstances

For purposes of contracting the subsequent marriage, the present spouse must institute a summary proceeding for declaration of presumptive death of the absentee. (41) This does not apply to subsequent marriage contracted before the effectivity of the Family Code, because the New Civil Code does not require said declaration. Absence of 7 years ipso jure grants the present spouse capacity to remarry.

Since the second marriage took place during the effectivity of the New Civil Code, the presumption of death is established by law and no court declaration is needed for the presumption to arise, since death is presumed to have taken place by the seventh year of absence pursuant to Art. 390 of the Civil Code. (Valdez vs Republic, 597 SCRA 13).

If the subsequent marriage (by reason of presumptive death of the absentee spouse) took place prior to August 3, 1988, the subsequent marriage is valid even if there was no judicial declaration of presumptive death so long as the prescribed period of absence is met. (Armas vs Calisterio, 330 SCRA 2001). But, if such subsequent marriage is celebrated during the effectivity of the Family Code, the requirement of judicial declaration of presumptive death is absolute and indispensable. In the absence thereof, the subsubsequent marriage is void and the spouse present shall be liable for bigamy. Article 41 FC was enacted to harmonize civil law and Art. 349 of the RPC. (Manuel vs Manuel, 476 SCRA 461)

In Republic vs Bermudez-Lorino, 449 SCRA 57, it was held that the order of the trial court granting the petition for judicial declaration of presumptive death is immediately final and executory. Hence, the right to appeal was not granted to any of the parties therein. It was therefore erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto.

The ruling was reiterated in Republic vs Tango, 594 SCRA 560)

While there is no appeal, an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction and such petition shall be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. (Republic vs Tango, supra)

Art. 36- Psychological incapacity to perform marital obligationsReasons for Art. 36-

1. New Code on Canon Law provides the same ground for Declaration of nullity of marriage. 2. Parties who have church annulled marriage are given cause of action to have their marriages declared void by civil law. 3. Parties to marriages that exists in name only since they have long been separated from each other because of the inability or failure of one of the parties to perform the essential obligations of marriage.

What in issue is - not whether the consent to the marriage is defective or not, but whether there can be fulfillment of the valid consent.

Examples of psychological incapacity: 1. Husband/wife refuses to dwell with and subsequently leave the Spouse without fault of the other; 2. Husband/wife leaves the spouse without justifiable cause; 3. Husband/wife refuses to have sex with the other spouse; 4. Wife refuses to have children; 5. There is unbearable jealousy on the part of either party, hence, Making life of the parties unbearable; 6. Immaturity or where is there is lack of rational judgment and Responsibility as when the husband refuses to support the family; 7. Husband or wife cannot shoulder the heavy responsibility of being A parent;

Mere showing of “irreconcilable differences” and “conflicting personalities” does not constitute psychological incapacity. (Republic vs. Court of Appeals, and Roridel Molina, 268 SCRA 198).

Molina case laid down for guidance of bar and bench, the interpretation of Art. 361. Burden of proof to show nullity belongs to plaintiff; 2. Root cause of psychological incapacity must be: A- medically or clinically identified B- alleged in the complaint C- sufficiently proven by experts D- clearly explained in the decision 3. The incapacity must be proven to be existing at the time of Celebration of marriage; 4. Incapacity must be shown to be medically or clinically Permanent or incurable; 5. Illness must be grave enough to bring about the disability to assume the essential obligations of marriage; 6. Non-complied marital obligations must be stated in the Petition and proven by evidence and included in the text of the decision; 7. The court must order the fiscal and solicitor general to appear as counsel for the State.

In the case of Santos vs. CA, 240 SCRA 20, the Supreme Court held that being of unsound mind, drug addiction, habitual alcholism, lesbianism, or homosexuality may be indicia of psychological incapacity, depending on the degree of severity of the disorder.

In Marcos vs Marcos, 343 SCRA 755, the SC clarified that there is no requirement that the defendant spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity. Such psychological incapacity, however, must be established by the totality of the evidence presented during trial.

But, in Bier vs Bier, 547 SCRA 123, the clinical psyschologist relied only on the information fed by the petitioner. Thus, the Court considers the testimony of the clinical psychologist hearsay evidence since she had no personal knowledge of the alleged facts she was testifying on.

Lately, in Ngo Te vs Yu-Te, 579 SCRA 193, and Azcueta vs Republic, 588 SCRA 196, the court relaxed the Molina guidelines by relying heavily on the findings of the expert witness (clinical pyschologist) in declaring the marriage void on ground of psychological incapacity. The Court said- “By the very nature of Art. 36, courts, despite having the primary task and burden of decision-making, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties”.

In psychological incapacity, the spouse declared to be psychologically incapacitated has innate incapacity or inability to comply with the essential obligations of marriage because of an utter insensitivity or inability to understand such obligations (Santos vs CA 240 20) As such, he or she cannot be held liable to pay moral damages to the other spouse based on Article 2217 and 21 of the NCC which connotes willfulness of the acts complained of.

If the same acts constitutive of the psychological incapacity were made the basis of the award of moral damages, it is contradictory to characterize acts as product of pyschological incapacity, hence beyond the control of the party because of innate inability, while at the same time considering the same set acts as willfull. (Buenaventura vs CA, 454 SCRA 261).

In Antonio vs Reyes, 484 SCRA 353, the respondent was a pathological liar and which lies were held to be indicative of her failure to distinguish truth from fiction, or at least abide by the truth. In declaring her psychologically incapacitated, the Court held that a person unable to distinguish between fantasy and reality would similarly be unable to comprehend the legal nature of the marital bond, much less its psychic meaning, and the corresponding obligation attached to marriage.

The Court may not refuse to apply the guidelines in the Molina case simply because the marriage is a mixed one and that the respondent is a foreign citizen. The SC held in Republic vs Quintero-Hermano (428 SCRA 735) that such guidelines may not be relaxed just because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The norms used for determining psychological incapacity should apply to any person regardless of nationality because the rules were formulated on the basis of studies of human behavior in general.

Art. 37 Incestous marriages- between ascendants and descendants of any degree -between brothers and sisters, whether of full or half blood.

Art. 38 Marriages void by reason of public policy1. 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 adopting parent and adopted child 5. between surviving spouse of the adopting parent and the adopted child

6. between surviving spouse of the adopted child and the adopter 7. between an adopted child and legitimate child of the adopter 8. between adopted children of the same adopter 9. between parties where one, with the intention to marry the other, killed that other’s spouse, or his own spouse.

Nota bene: marriage between the adopted child and the illegitimate child of the adopter is not included in Article 38.

Who may file petition for declaration of nullity of marriage? A- In Ninal vs Bayadog, 328 SCRA 122, the Supreme Court allowed the compulsory/legal heirs to file petition for declaration of nullity of their father’s marriage against respondent after the death of their father. B- Subsequently thereafter, the SC promulgated the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (AM No. 02-11-10-C), which took effect on March 15, 2003, and Section 2 thereof, makes it the sole right of the husband or the wife to file a petition for declaration of absolute nullity of void marriage.

In Enrico vs Heirs of Sps. Medinaceli, 534 SCRA 418, the Court clarified that the coverage of the AM No. 02-11-10-SC extends only to those marriages entered during the effectivity of the Family Code, and its application is prospective. In Carlos vs Sandoval, 574 SCRA 116, the Court further clarified that AM No. 02-11-10-SC, does not apply to cases already commenced before March 15, 2003, although the marriage involved was celebrated during the effectivity of the Family Code.

What rule will apply for marriages celebrated under the Civil Code? The absence of a provision in the Civil Code cannot be construed as a license for any person to institute a nullity of marriage case. Such person must appear to be a party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Hence, only the compulsory or legal heirs of the deceased spouse can file the petition.

One who is not the real party in interest in a complaint for declaration of nullity of marriage cannot ask for the setting aside of the decision therein- his invocation of the State’s interest in protecting the sanctity of marriage does not give him the standing to question the decision. By law, it is the prosecuting attorney of fiscal or the Solicitor General who represents the interest of the State in proceeding for the annulment or declaration of nullity of marriage.

(Salamingo vs Rubica, 527 SCRA 1)

Period to file petition for declaration of nullity of marriage- For marriages the prior to the effectivity of the Family Code (Aug 3, 1988), the petition may be filed by the real party-in-interest even after the death of the spouses. (Ninal vs Bayadog, 328 SCRA 122)

- If the marriage was celebrated during the effectivity of the Family Code but the petition was filed before March 15, 2003, the petition may be filed by the real party-ininterest even after the death of the spouses. (Carlos vs Sandoval, supra). Note: AM No. 02-11-10-SC does not apply.

If the marriage was celebrated during the effectivity of the Family Code, and the petition was filed on March 15, 2003 or thereafter, the petition can be filed only by either spouse and during their lifetime. No such petition can be filed after death of either spouses, and in case a party dies at any stage of the proceedings before entry of judgment, the court shall order the case closed and terminated. (AM 02-11-10SC) , but without prejudice to a collateral attack that may be done by the compulsory/legal heirs of the spouses upon death of a spouse in a proceeding for settlement of the estate of the deceased spouse. (Enrico vs Heirs of Medinaceli and Carlos Sandoval, supra)

Action or defense for the declaration of absolute nullity of marriage shall not prescribe. (39)(as amended by RA 8533, Feb. 23, 1998) 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.(40)

What step must be undertaken by the present spouse before entering into s subsequent marriage? What is the effect of failure to take such step?

One must first secure a final judicial declaration of nullity of his previous marriage before he can validly contract another marriage and failure to do so shall make him liable for the crime of bigamy if he contracts a subsequent marriage. (Marbella-Bobis vs Bobis, supra, Abunado vs People, 426 SCRA 562) (41) Even if the prior marriage is void but a party thereto fails to secure a judicial declaration of its nullity before contracting another marriage, the subsequent marriage is also void. (Art. 50 FC, Carino vs Carino, 351 SCRA 127) and the party is liable for the crime of bigamy.

To contract a subsequent marriage, the other spouse must be absent for 4 years or 2 years, and the present spouse has well-founded belief that the absent spouse was already dead. (41)

When may the subsequent bigamous marriage be terminated? The subsequent marriage shall be terminated automatically by the recording of the Affidavit of Reappearance of the absent spouse, unless there is a judgment annulling or declaring the previous marriage void. (42)

The sworn statement of reappearance shall be recorded in the civil registry of the residence of the parties of the subsequent marriage at the instance of any interested person, with due notice to the parties of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (42)

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or court action, such absentee’s mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouse’s physical appearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law. (SSS vs Jarque Vda. De Ballon, 485 SCRA 376)

Wife left the home, husband inquired from friends, no news about her, sent letter to former place of work, but were returned. Is this sufficient to declare wife presumptively dead? No. Spouse should not be allowed, by the simple expedient that one of them left the conjugal home and never to return again, to circumvent the laws on marriage which is not an ordinary but special contract of permanent union. (Republic vs. Nolasco, 220 SCRA 20, March 17, 1993).

EFFECTSOF TERMINATION OF SECOND MARRIAGE: (43) 1. Children of the second marriage conceived prior to termination shall be legitimate. 2. custody and support to be decided by the court in proper proceedings. 3. community property shall be dissolved and liquidated, but share of spouse in bad faith in the net profits shall be forfeited in favor of common children, or children of guilty spouse, or innocent spouse.

4. donations by reason of marriage shall remain valid, but those in favor of spouse in bad faith, shall be revoke by operation of law. 5. innocent spouse may revoke the designation of spouse in bad faith as beneficiary in any insurance policy, even if designation is irrevocable. 6. spouse in bad faith shall be disqualified to inherit from the innocent spouse, whether by testate or intestate succession.

IF BOTH IN BAD FAITH- (44) 1. marriage shall be void 2. donations by reason of marriage revoked by operation of law 3. testamentary disposition revoked by operation of law

GROUNDS FOR ANNULMENT OF MARRIAGE (45)

1. LACK OF PARENTAL CONSENT, unless cohabited freely after 21 years of age. 2.INSANITY, unless after coming to reason cohabited freely with each other. 3. CONSENT OBTAINED BY FRAUD, unless with full knowledge, cohabited freely

4. CONSENT OBTAINED BY FORCE, INTIMIDATION, UNDUE INFLUENCE, unless cause disappeared, cohabited freely 5. IMPOTENCY, continuing and appears to be incurable 6. PARTY AFFLICTED WITH SEXUALLY TRANSMISSIBLE DISEASE, found to be serious and incurable CONSENT- parental, fraud, force, INSANITY IMPOTENCY STD

A & B were sweethearts. B. became pregnant. Knowing that A was about to take bar exam, B threatened A with complaint for immorality in the Supreme Court. As a consequence of the threat, A married B. Is the marriage annullable on ground of intimidation?

No, the threat to enforce one’s claim which is just and legal, through competent authority, is not the threat contemplated by law to annul a marriage. The threat must be unjust or illegal. (Ruiz vs. Atienza, CA 40 Off Gaz. 1093).

FRAUD TO ANNUL A MARRIAGE (46) CONCEALMENT OF CONVICTION by final judgment of a crime involving moral turpitude. CONCEALMENT OF PREGNANCY BY WIFE by another man at the time of marriage CONCEALMENT OF SEXUALLY TRANSMISSIBLE DISEASE, at the time of marriage CONCEALMENT OF DRUG ADDICTION, HABITUAL ALCOHOLISM, HOMOSEXUALITY OR LESBIANISM At the time of marriage

NO other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute fraud for annulment of marriage.

Plaintiff, a first year law student, met the defendant in March 1968. After several meetings, became engaged and were married. After 88 days, defendant gave birth to child. Plaintiff abandoned defendant and filed suit for annulment on the ground of fraud, as the defendant assured that she was a virgin. Will suit the prosper?

The marriage cannot be annulled. The law is explicit, no other misrepresentation or deceit as to character, health, rank, fortune, or CHASTITY shall constitute fraud for annulment of marriage. On the ground that she was pregnant by another man, the law is explicit. There must be concealment. Here is there is no possibility of concealment. Defendant was already about 6 months pregnant. At such advance stage of pregnancy, concealment would be impossible. (Buccat vs. Buccat, 72 Phil 19). Accdg to medical authorities, when a woman is already 6 months pregnant, the enlargement of her abdomen is above, and no longer below, the umbilicus. (Aquino vs. Delizo, 109 Phil 21).

IMPOTENCYTest on Impotency- the test is not the capacity to reproduce but the capacity to copulate. (Sarao vs. Guevarra, CA Off. Gaz. 263). Physical incapacity as ground for annulment of marriage refers to inability to perform the sexual act, and not sterility or inability to procreate. (Menciano vs. San Jose, 89 Phil 63; Jimenez vs. Canizares, 109 Phil 273).

If the spouse knew that the other party is impotent, can she ask for annulment of her marriage? How about if the man is already 80 years old, can she ask for annulment?

No. 1. To be entitled, party must be unaware of the impotency because the law requires that the party that can bring the action must be the injured party. If she knew, she is not an Injured party.

2. Estoppel. She is renouncing copulation, which is a purely personal right. 3. Sexual intercourse is not the only end or purpose of marriage. If the man is 80 years old, the wife should know that he should be already impotent, and is under estoppel to annul her marriage.

Doctrine of triennial cohabitation- the presumption that the husband is impotent should the wife still remain a virgin after living together with the husband for 3 years.

Can relative impotency be invoked to annul marriage? Yes. In view of the physical incapability of one party to consummate said marriage with the other.

Can a woman be compelled to undergo physical examination to determine her physical capacity for copulation? (private part of the woman to small to allow penetration).

Yes. A physical examination in this case is not selfincrimination. She is not charged with any offense. She is not being compelled to be a witness against herself. Impotency, being an abnormal condition, should not be presumed The presumption is in favor of potency. (Jimenez vs.Canizares, 109 Phil 273).

Who may bring an action to annul a marriage?

PARTY TO ANNUL MARRIAGE (47) PARENT/GUARDIAN without consent, before 21, or PARTY (whose parent did not give consent)- within 5 years after 21 years of age SANE SPOUSE (if no knowledge) RELATIVE/GUARDIAN OF INSANE SPOUSE, at anytime before death of EITHER PARTY, INSANE during lucid interval or upon regaining sanity

FRAUD- INJURED PARTY, WITHIN 5 YEARS AFTER DISCOVERY OF FRAUD

FORCE, ETC., INJURED PARTY, WITHIN 5 YEARS AFTER CESSATION THEREOF IMPOTENCY, INJURED PARTY, WITHIN 5 YEARS AFTER MARRIAGE SEXUALLY TD, INJURED PARTY, WITHIN 5 YEARS AFTER MARRIAGE

(48) IN ANNULMENT OR DECLARATION OF NULLITY OF MARRIAGE, COURT SHALL ORDER PROSECUTOR TO APPEAR TO PREVENT COLLUSION BETWEEN THE PARTIES NO JUDGMENT ON STIPULATION OF FACTS OR CONFESSION OF JUDGMENT IN ANNULMENT OR NULLITY OF MARRIAGE

49. DURING PENDENCY OF SUIT FOR ANNULMENT OR NULLITY OF MARRIAGE1. court provides for support of spouses 2. custody and support of common children 3. Custody shall be given to spouse with due consideration toa- moral and material welfare of the children B- their choice of parent they wish to remain C- provide for visitation rights of other parent

AFTER ANNULMENT: (50, 51)

1. Community shall be dissolved and liquidated 2. donations by reason of marriage shall be valid 3. innocent spouse may revoke designation of guilty Spouse as beneficiary in life insurance policy, even if designation is irrevocable. 4. guilty spouse shall be disqualified to inherit from innocent spouse 5. Provides for custody and support of common children

6. Orders the delivery of presumptive legitimes 7. conjugal dwelling and lot shall be adjudicated to spouse whom majority of children choses to remain; in case no majority, court decides 8. either spouse may remarry, but deliver presumptive legitimes, otherwise remarriage is void 9. children conceived or born before judgment are legitimate (53) 10. children conceived or born of subsequent marriage are legitimate (54)

If the judgment of annulment or declaration of nullity of marriage, partition and distribution is not registered, what is the effect?

• The judgment of annulment or absolute nullity of marriage, partition and distribution of the properties of spouses and delivery of presumptive legitimes shall be recorded in the civil registry and registry of properties, otherwise, the same shall not affect third persons. • If not registered, the subsequent marriage of either of former spouses shall be null and void. (52)

Where there are no properties of the spouses which could be the subject of liquidation, and no legitimes to be delivered, is there a need for recording of the judgment of annulment or absolute nullity of marriage?

• There is no need for recording of the judgment in the appropriate registries of property where there are no properties that would be subject of liquidation, partition and distribution and no presumptive legitimes that could be delivered. Logically, our governing laws do not require such judgment to be furnished and recorded in the registries of property.

LEGAL SEPARATION (55) 1. PHYSICAL VIOLENCE repeated GROSSLY ABUSIVE CONDUCT 2. PHYSICAL VIOLENCE OR MORAL PRESSURE to change politic or religion 3. ATTEMPT TO CORRUPT INDUCE to engage in prostitution 3. FINAL JUDGMENT WITH IMPRISONMENT OF MORE THAN 6 YEARS, even if pardoned 4. DRUG ADDICTION, HABITUAL ALCHOLISM

5. LESBIANISM, HOMOSEXUALITY 6. BIGAMOUS MARRIAGE, ANYWHERE contracted 7. SEXUAL INFIDELITY OR PERVERSION 8. ATTEMPT AGAINST LIFE 9. ABANDONMENT FOR MORE THAN ONE YEAR, without justifiable cause

GROUNDS FOR DENIAL (56) 1.CONDONATION - forgiven 2. CONSENT- agreed 3. CONNIVANCE4. MUTUAL GUILT- both had given ground 5. COLLUSION- both agree to commit or appear to commit 6. PRESCRIPTIONTIME TO FILE- 5 YEARS FROM OCCURRENCE (57) NO TRIAL BEFORE 6 MONTHS FROM FILING OF PETITION (58) NO JUDGMENT UNLESS EARNEST EFFORTS FOR RECONCILIATION MADE DURING PENDENCY OF ACTION AND FAILED (59)

Under Section 19 of RA 9262 (Anti-Violence Against Women and Children Act of 2004), the requirement of six months cooling-off period under Article 58 FC shall not apply where violence, as specified in RA 9262, is alleged as the ground for legal separation. Ex. Repeated physical violence against the wife or common children. In such cases, the court shall proceed on the main case and other incidents of the case as soon as possible.

If the ground for legal separation is any act of violence punishable under RA 9262, said law prohibits the awarding of custody of minor children to the perpetrator of a woman who is suffering from battered woman syndrome. The victim who is suffering from battered woman syndrome shall not also be disqualified from having custody of her children. (Sec. 28, RA 9262)

H instituted an action for legal separation against his wife, W on the ground of adultery. It was however established during trial that after H’s discovery of his wife’s infidelity, he still had sexual intercourse with

her twice. Will the action prosper?

• No. The act of H in having sexual intercourse with W in spite of his knowledge of the latter’s infidelity is an act of implied condonation. Such act of condonation shall bar the granting of a decree of legal separation. (Ginez vs Bugayong, 100 Phil 616)

A caught his wife, B, having illicit relations with P. He then told her that he will file an action against her for legal separation which the latter agreed provided that no criminal charges shall be filed against her. The complaint was filed and B defaulted. When questioned by the Fiscal, B signified her conformity to the legal separation. Is there collussion? Is there confession of judgment to bar the decree of legal separation?

• The confession made outside of the court is not a confession of judgment. Confession of judgment happens when defendant appears in court and confesses to the right of the plaintiff to judgment or files a pleading expressly agreeing to plaintiff’s demand. • There is evidence of adultery independent of the confession, upon which the decree may be granted.

• What the law prohibits is a judgment based exclusively or mainly on defendant’s confession. Otherwise, if a confession can defeat the action ipso facto, any defendant, who opposes the separation, will immediately confess judgment, purposely to prevent it. (Ocampo vs. Florenciano, 107 Phil 35)

• A and B entered into a contract whereby they agreed to live separately and that they are free to cohabit with anyone. Thereafter A cohabited with M and had seven children with her. B filed an action for legal separation against A. Will the action prosper?

• No. • The action has prescribed. Action for legal separation prescribed in 5 years. • By their express agreement, B had consented or condoned the act of A. Having consented or condoned the acts of A, he is undeserving of court’s symphaty. • B is not an innocent spouse. She is aware of the cohabitation between A and M.

Effects of filing of legal separation (61) • Spouses are entitled to live separately • No more right of carnal intercourse • Court shall designate H or W to manage the community property • Court shall provide for the support of the spouses and the common children

Effects of decree of legal separation (63, 64) • Spouse shall live separately, but marriage bond shall not be severed • Community property shall be dissolved and liquidated. • Offending spouse forfeits share in the profits • Offending spouse disqualified to inherit from innocent spouse

• Innocent spouse may revoke donations in favor of offending spouse, as well as designation as beneficiary in any insurance policy, even irrevocable • Disposition in the will in favor of offending spouse is revoked by operation of law. • Custody of minor children awarded to innocent spouse, provided that no child below 7 years shall be separated from the mother

A married woman may use: 1. Her maiden first name and surname and add her husband’s surname; or 2. Her maiden first name and her husband’s surname, or 3. Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs”.

In case of legal separation, the wife shall continue using her name and surname employed before the legal separation. (Art. 372 FC)

In case of anulment of marriage, if the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname, or continue using the former husband’s surname, unless: the court decress otherwise; or she or the former husband is married again to another person. (Art. 371 NCC)

• A brought an action for legal separation against his wife B on ground of adultery. He likewise asked the Court for the forfeiture of the share of B in the community profits. During the pendency of the case, A died. May the heirs of A be substituted in his behalf?

• The action for legal separation, which involves nothing more than separation from bed and board is purely personal. Being personal in character, the death of one party to the action causes the death of the action itself. • Even if the action involves property rights, the abatement still applies. The property rights are mere effects of a decree of legal separation. Without the decree, such rights do not come into existence.

Reconciliation (65) • If the spouses should reconcile, the corresponding manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation.

Effects of reconciliation (66) Legal separation proceedings, if pending, shall be terminated in whatsoever stage.

Final decree of legal separation shall be set aside, but separation of property and forfeiture shall subsists, unless the property agree to revive their former regime.

The use of the husband’s surname during the marriage is permissive and not obligatory. Hence, a married woman may retain the use of her maiden name. (In re: Josephine P. UyTimosa, Bar matter No. 1625, July 18, 2006)

Revival of former regime (67) • Spouse should execute an agreement under oath and specify the following: 1. properties to be contributed anew to the restored regime 2. properties to be retained as separate of each 3. the names of all their known creditors, addresses and amounts owing to each

The agreement shall be approved and recorded. Does not prejudice creditor without notice, unless debtorspouse has sufficient separate property

The Rule on Legal Separation (AM No. 02-11-11-SC) appears to allow the spouses, upon reconciliation and with intervention of the court, to adopt a new property regime different from that which they had prior to the filing of the petition for legal separation. (Sec. 23(e) and 24, AM No. 02-11-11-SC). It is submitted, however, that the parties may not adopt absolute community or conjugal partnerhip of gains as their new property regime because regimes cannot commence at any other time except the precise moment of the celebration of marriage and any stipulation to the contrary is expressly declared by law to be void. (Art. 88 and 107, FC)

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE: Obligations : (article 68)

-To live together wife to live with husband except : a- residence dangerous b- husband has not fixed residence c- husband carries shameful business at home -To observe mutual love, respect, and fidelity -To render mutual help and support

Q. W, wife, abandoned her husband, H, without justifiable reason, can H ask the court to order W to return to the conjugal home under penalty of contempt? What other remedies are available to H?

Ans. No, bec. Cohabitation is purely personal obligation (Arroyo vs. Vasquez de Arroyo, 42 Phil. 54) Remedies : A- withhold support B -recover moral damages C- ask court to counsel The refusal of the wife to perform her wifely duties, her denial of consortium and her desertion of her husband would certainly constitute a wilful infliction of injury upon her husband’s feelings in a manner contrary to morals, good customs and public policy for which Art. 21 of the NCC authorize an award of damages.

Who fixed domicile? Both, in case of disagreement, court decides (article 69)

The court may exempt spouse from living with the other : A- if spouse lives abroad B- other valid and compelling reason for exemption

Support of the family – joint responsibility of both (Art. 70) Order : a- from community property b- income or fruits of separate property C- separate property of spouses (proportionate to their properties, but to creditors, solidarily liable).

Management of household- right and duty of both (article 71) expenses to be paid in the same order as in support Profession or occupation- wife may exercise without consent of husband but Husband may object on valid, serious and moral grounds In case of disagreement – court decides on whether or not objection proper, and benefits accrued to the family. If benefit accrued to family prior to objection , resulting obligation shall be enforced against the absolute community; after objection, against separate property of spouse who has not obtained consent.

Under RA 9262, if the husband prevents his wife from engaging in any legitimate profession, occupation or or activity, he has committed an act of violence punishable by said law (Sec. 5(e), RA 9262), except in cases where the husband objects on valid, serious and moral grounds. (Sec. 3(a) (D) (1), RA 9262).

Legal sanctions : ( petition court for relief) (72) If spouse 1. neglects duties to conjugal union 2. commits acts which tend to bring danger, dishonor or injury to the other or to the family.

Exercise of profession- (73) -either spouse may exercise without the consent of the other -spouse may object on valid, serious and moral grounds -in case of disagreement, the court shall decide whether or not the objection is proper and benefit accrued to the family before objection or thereafter. -if the benefit accrued prior, the resulting obligation shall be enforced against the separate property of spouse who has not obtained consent.

PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE: Governed By : 1.marriage settlement 2.family code 3. local customs (ARTICLE 74)

Property regimes (article 75) 1. absolute community 2. conjugal partnership gains 3. complete separation of property 4. combination of the above regimes 5. any other regimes, like dowry system 6. in case of void regime- governed by absolute community.

Q. A, married B, a very rich woman. When B died, A claimed ½ of the properties of B on the basis of a public instrument executed by A and B whereby all their separate properties were converted into conjugal properties. Is the claim valid?

Ans. The claim is not valid. 1. Property relations between husband and wife cannot be changed, altered or modified during marriage. 2. The public instrument, if given effect, would result in giving validity to donation between spouses which is not allowed by law. 3. It would allow commission of fraud by the spouses.

Forms of marriage settlement or modification : (77) 1. Must be in writing 2. Must be signed by both 3. Must executed before marriage Must be registered to affect third parties

In case real properties are contributed, the marriage settlement must be in public document and recorded in the local civil registry and register of deeds, in order to affect third persons.

No more minors needing assistance of guardian for purposes of marriage settlement as the age of majority has been lowered to 18, which is also the age of marriage. If suffering from civil interdiction, to be assisted by legal guardian in executing marriage settlement. (79)

Any modification, alteration or change in the marriage settlement must be made before the celebration of the marriage. (76)

Effect of non-celebration of marriages: (81) 1. property regime 2. donation proper nuptias 3. other stipulation in consideration of marriage ARE RENDERED VOID However, stipulations that do not depend on the celebration of marriage shall be valid

Property relations governed by : Philippine law, except contrary stipulation in marriage settlement. (irrespective of place of marriage and residence of parties) The rule does not apply1. both spouse are alien 2. extrinsic validity of contracts affecting property not situated in the Phil and executed in country where the property is located 3. extrinsic validity of contracts entered in Phil. but affecting property situated outside of RP whose laws require different formality for their extrinsic validity.(81)

DONATIONS PROPTER NUPTIAS (82) Req. 1. made before marriage 2. in consideration thereof 3. in favor of one or both of the future spouses

Excepted: (not considered donation propter nuptias) -Ordinary weeding gifts after marriage -Donation before but not in consideration of the marriage - Donation to other persons even if founded on the intended marriage -Insurance contract over the life of spouse (belong to the beneficiary)

Limitations: -no limitation if spouse agrees on absolute community - if not absolute community- 1/5 of present property -In case of future property- rule on succession

GROUNDS FOR REVOCATION : (86) 1. non-celebration of marriage 2. marriage judicially declared void ab initio A- if in marriage settlement- automatically revoked B- if not in M S - if written-10 years, if oral- 6 years 3. marriage without parental consent (action must be filed within 4 years) 4. Marriage annulled, donee acted in bad faith- 4 yrs 5. Legal separation, donee is guilty spouse- 5 yrs fr. decree 6. Resolutory condition fulfilled, if written, 10 yrs. If Oral- 6 yrs 7. Donee committed acts of ingratitude- 1 yr fr. knowledge

Property donated with encumbrance : (86) Valid – if foreclosed : A- sold for less than the obligationdonee not liable for deficiency B- sold for more than the obligationdonee entitled to excess.

DONATION BETWEEN SPOUSES : (87) direct-void indirect- void (where spouses is the presumptive heir of donee) except : moderate gifts on family rejoicings. *Rule applies to common-law relationships

Q. X had been taking care of B until she got married to A. Prior to the marriage, A executed a deed of donation, with the following conditions: 1. if there are children to their marriage, the property shall go to said children; 2. if there are no children, and A should die ahead, ½ shall be given to his brothers; 3. if there are no children, and B should die ahead, ½ shall go to X. Nine monts after their marriage, B died without issue. X filed an action to enforce the donation. Will the action prosper?

Ans. No, action will not prosper. 1. Donation is not a donation propter nuptias. It was not made in favor of B, the wife. 2. It cannot be a valid donation inter vivos because there was no acceptance by the donee. 3. It cannot be a valid donation mortis causa because it was not executed in the formality of will; besides, A is still alive. (note: there was substitution of heirs).

Q. X executed a donation propter nuptias in favor of his prospective wife, Y, who accepted the same. The marriage however did not take place. The creditors of X filed an action to recover the property donated on the ground that the marriage was not celebrated. Will the action prosper?

Suppose the donation was made in the marriage settlement, will the answer be the same?

Ans. No, the action will not prosper. A donation propter nuptias is only REVOCABLE by the donor if the marriage is not celebrated. If the donor did not bring an action for revocation within the period of limitation, then the donation would forever be valid. However, if the donation was made in the marriage settlement, then the donation is revoked by operation of law.

Q. A donation propter nuptias was given by X to Y. They were subsequently married. Thereafter, Y discovered that X was previously married. Y brought an action to annul their bigamous marriage, which was granted. X filed an action to revoke his donation as their marriage was judicially declared void. Will the action prosper?

Ans. No, the action will not prosper. A donation propter nuptias is revocable in case the marriage is annulled, and the donee acted in bad faith. In this case, Y, the wife, who was the donee, did not act in bad faith. Rather, it was the donor who acted in bad faith. Hence, donation cannot be revoked by the donor.

Q- A and B, both single, lived together as husband and wife, without the benefit of marriage. During their cohabitation, A donated a house and lot to B. When A died, the heirs of A bring an action to recover the property donated. Will the action prosper?

Ans. The action will prosper Donation between spouses who are legally married is void. Same rule applies to persons living together as husband wife without a valid marriage. To allow a different rule is to put premium to illegimate relationship.

Q. X donated a parcel of land to his common-law wife, Y. Thereafter, X and Y got married. Shortly after their marriage, X died. The sister of X filed an action to recover the property donated by X on the ground that it is void. Will the action prosper?

Ans. The action will prosper, but only to ½ of the property. The donation made by X to his common-law wife Y is admittedly void. Donation between legally married spouses is void. Said rule applies in equal measure to illegitimate relations. Y is however entitled to ½ share of the property, being an intestate heir, as she was legally married to X before he died. The other ½ shall go to the sister of X, who is also his intestate heir.

PROPERTY RELATIONS : ABSOLUTE COMMUNITY- governs after the effectivity of the family code, unless different regime agreed upon by the spouses. . COMMENCEMENT: precise moment marriage is celebrated. WAIVER of rights, interests, shares and effects of community property during the marriage- VOID

EXCEPT: 1.waiver takes place upon judicial separation of property 2. waiver takes place after marriage had been dissolved or annulled.

WAIVER must appear in public instrument and recorded. Creditors of waiving spouse may petition the court to rescind waiver to the extent of their credit.

COMMUNITY PROPERTY CONSIST OF:

1. all properties owned by the spouses at the time of celebration of marriage 2. all properties acquired after marriage.

PROPERTIES EXCLUDED :

1. acquired by gratuitous title, including fruits and income, except when grantor declares them to form part of the community property. 2. property for personal and exclusive use of spouses, except jewelry, which are community property 3. property acquired before marriage by either spouse, who has legitimate descendants by former marriage, including fruits or income thereon.

CHARGES UPON ABSOLUTE COMMUNITY: 1. SUPPORT for spouses, common children, and legitimate children of each spouse

2. DEBTS and obligation contracted during marriage by : A-administrator spouse B- Both spouses C- One spouse with consent of other 3. DEBTS and obligations contracted by either spouse to the extent family benefited.

4.TAXES liens, charges and expenses, including major or minor repairs upon community property. 5. TAXES and expenses for preservation made during marriage upon separate property of either spouse use by family. 6. EXPENSES to enable either spouse to commence or complete a professional, vocational or other activity for self-improvement. 7. ANTENUPTIAL DEBTS of either spouse that redounded to the benefit of family.

8. VALUE of what is donated or promised by both spouses to their common children for the exclusive purpose of commencing or completing professional or vocational course or for selfimprovement.

9. ANTENUPTIAL DEBTS of either spouse that do not redound to the benefits of the family, SUPPORT for Illeg. children, liabilities for crime, or quasi-delict, if separate property not sufficient 10. EXPENSES for litgation between spouses, unless suit found to be groundless.

If the community property is not sufficient, the separate property of either spouse shall be solidarily liable for the unpaid balance. LOSSES IN GAMBLING, betting, sweepstakes, or any other kind of gambling, whether prohibited or permitted by law, shall be borne by the loser, and not chargeable to the community, but winning pertains to the community.

In the system of absolute community, liabilities incurred by either spouse by reason of crime is chargeable to the absolute community property, in the absence or insufficiency of the exclusive property of the debtorspouse. (Buado vs CA 586 SCRA 397)

ADMINISTRATION & ENJOYMENT of community property- BOTHIn case of DISAGREEMENT- husband’s decision prevails, but wife may seek recourse in court within 5 years from date of contract implementing the decision.

In case of incapacity or inability to participate in administration- the other spouse shall assume sole power, but cannot dispose or encumber community property, without court approval or consent of the other spouse.

DISPOSITION OR ENCUMBRANCE of community propertyBOTHIf made by one, without consent of the other, it shall be considered as continuing offer on the part of the consenting spouse, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.. If consent is withheld or cannot be obtained- COURT may give the authority as warranted by the circumstances. EITHER spouse may dispose by will his/her interest in the absolute community.

DONATION OF COMMUNITY PROPERTYBOTH - except moderate donations to charity OR on occasion of family rejoicing OR family distress.

DISSOLUTION OF ABSOLUTE COMMUNITY REGIME1. death of either spouse 2. decree of legal separation 3. marriage is annulled or declared void 4. Judicial separation of property under 134 to 138

ARTICLE 134- SEPARATION OF PROPERTY DURING THE MARRIAGE TAKES PLACE ONLY BY JUDICIAL ORDERDONE under A- Art. 136- by agreement where they jointly file a verified petition for voluntary dissolution of the absolute community property B- Art. 135- for sufficient cause.

ARTICLE 1351.spouse convicted with penalty of CIVIL INTERDICTION 2. spouse judicially declared an ABSENTEE 3. LOSS OF PARENTAL AUTHORTITY decreed by court 4. ABANDONMENT by the spouse OR failure to comply with obligation 5. ABUSE OF POWER OF ADMINISTRATION 6. SEPARATION IN FACT FOR ONE YEAR, reconciliation is highly improbable.

SEPARATION DE FACTO OF SPOUSES- shall not affect the absolute community property- except: A- spouse who leaves conjugal home or refuses to live therein- shall have no right to be supported. B- consent of spouse to any transaction is needed – judicial authorization shall be obtained in summary proceedings C- if community property not sufficient, separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall be given authority by the court to encumber or dispose separate property or fruits to satisfy the share of the absent spouse.

ABANDONMENT BY SPOUSE OF THE OTHER Abandoned when spouse left conjugal dwelling without any intention of returning. Presumed to have no intention of returning when spouse left conjugal dwelling after 3 months or within said period give no information as to his/her whereabouts.

REMEDY OF ABANDONED SPOUSE1. receivership 2. judicial separation of property 3. Petition for authority to be sole administrator of community subject to such precautionary conditions as court may impose.

LIQUIDATION OF ABSOLUTE COMMUNITY ASSETS AND LIABILITYPROCEDURES : 1. prepare inventory of absolute and separate properties 2. Pay debts and obligations If not sufficient-separate property-solidarily liable 3. NET REMAINDER shall be divided equally except- a- different divisions agreed upon in marriage settlement. B- Voluntary waiver by one spouse of his share. 4. PRESUMPTIVE LEGITIMES of common children shall be delivered

5. conjugal dwelling and lot adjudicated : a- agreement of the parties b- spouse, majority of the common children chooses to remain, child below 7, presumed to have chosen the mother c- if no majority- court decides taking into consideration the best interest of the children.

TERMINATION OF COMMUNITY PROPERTY BY DEATHA- liquidated in the proceeding for settlement of estate deceased. B- Surviving spouse shall liquidate community property judicially or extrajudicially, within one year from death of deceased spouse. C- If no liquidation after one year from deathDISPOSITION OR ENCUMBRANCE involving the community property shall be VOID. D- If the surviving spouse contracts a subsequent marriage without liquidation of community property, mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

LIQUIDATION OF COMMUNITY PROPERTIES OF TWO MARRIAGESA- DETERMINE the capital, fruits and income of each community property upon such proof as may be considered according to the rules of evidence. B- in case of doubt as to which the community the existing properties belong, they be shall divided between the two communities in proportion to the capital and duration of each.

CONJUGAL PARTNERSHIP OF GAINS 1.property of regime that applies when agreed upon in the marriage settlement. 2.conjugal partnership of gains already established between spouses before the effectivity of the family code.

RIGHT OF EACH SPOUSE IN THE CONJUGAL PROPERTY DURING MARRIAGE IS MERELY INCHOATEThus, a private creditor of the husband cannot attach or levy on one-half of the joint account of the spouses in a bank on the ground that it is the share of the husband in said account. The right of the husband to one half of the properties of the conjugal partnership does not vest until its dissolution and there are net assets left.(De Ansaldo vs. Sheriff of Manila, 64 Phil 156)

The Family Code, which took effect on 3 August 1988, provides that any alienation or encumbrance made by the husband of the conjugal partnership property without the consent of the wife is void. However, when the sale was made before the effectivity of the FC, the applicable law is the New Civil Code.

Article 173 of the New Civil Code provides that the disposition of real property of the conjugal partnership without the wife’s consent is not void but merely voidable and the wife could, during the marriage and within 10 years from the questioned transaction, seeks its annulment. (Heirs of Ignacia Aguillar-Reyes vs Mijares, 410 SCRA 97).

However, any alienation or encumbrance made after August 3, 1988 when the Family Code took effect by the husband or the wife of the conjugal partnership property without the consent of the other is null and void. (Heirs of Ignacia Aguillar-Reyes, supra). The present law specifically requires the written consent of the other spouse, or authority of the court for disposition or encumbrance of conjugal partnership property without which, the disposition or encumbrance shall be void. (Abalos vs Macatangay, 439 SCRA 649).

The reason for the rule- is that the right of the husband or the wife to one-half of the conjugal assets does not vest until the liquidation of the conjugal partnership, or after the dissolution of the marriage, when it is finally determined that, after settlement of the conjugal obligations, there are net assets left which can be divided between the spouses or their respective heirs. Prior thereto, the interest of each spouse in the conjugal assets is inchoate, a mere expectancy, which constitute neither a legal nor an equitable estate. Hence, either of the spouse may not give what he has not.

In Homeowners Savings & Loan Bank vs Dailo (453 SCRA 282), the bank contended that the mortgage of a conjugal property by the husband without the consent of the wife is not void in its entirety but valid with respect to the share of the consenting spouse, citing Art. 493 of the NCC, which allows a co-owner to dispose of his aliquot share without the consent of the other co-owner. The Court held that the rules of coownership do not apply to the property relations of conjugal partnership of gains because said property regime is a special type of partnership.

In Pelayo vs Perez, 459 SCRA 475, the Court held that when a wife affixed her signature to a Deed of Sale on the space provided for witnesses, she was deemed to have given her implied consent to the contract of sale. Hence, the consent of a spouse to the disposition does not have to be explicit or set forth in any particular document so long as it is shown by acts of the spouse that such consent or approval was indeed given.

COMMENCEMENT, WAIVER OF RIGHTS SHARES, EFFECTS OF ABSOLUTE COMMUNITY APPLIES TO CONJUGAL PARTNERSHIP OF GAINS.

EXCLUSIVE PROPERTY OF EACH SPOUSE1. brought to the marriage as his/her own. 2. acquires during marriage by gratuitous title (by donation or will, either singly or jointly, if share designated- per designation if not- share and share alike) 3. acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses 4. purchased with exclusive money of the spouse.

In conjugal partnership regime, if a spouse acquires a property through the exercise of the right of redemption solely pertaining to him/her, the property so acquired is his/her exclusive property, even if conjugal funds were used in the redemption. Villegas vs Lingan, 526 SCRA 63). But the ownerspouse has the obligation to reimburse the conjugal partnership for the funds coming from said property regime.

The wife during the marriage sold under pacto de retro her paraphernal property consisting of house and lot. A few weeks later, the wife died. The husband redeemed the property using his exclusive funds. To whom will the property belong, husband or wife?

Property still belongs to the wife. Property acquired by right of redemption is exclusive property. What matter is the origin of the right, if the right of redemption pertains to the wife, then it belong to the wife if redeemed. Husband can recover the amount used to redeem.

H before marriage with W was given by his friend a usufruct over a riceland for 5 years. Two years thereafter, H married W. Is the usufruct conjugal or exclusive?

The right of usufruct is exclusive, but the fruits derived from said right is conjugal. Income or fruits of the separate property of the spouses is conjugal.

OWNERSHIP, POSSESSION, ADMINISTRATION, ENJOYMENT OF EXCLUSIVE PROPERTY- retains by the owner spouse. But fruits of the separate property belongs to the conjugal partnership of gains Owner spouse may mortgage, encumber, alienate, or dispose her exclusive property. Spouse may appear alone in court to ligitate.

TRANSFER OF ADMINISTRATION OF EXCLUSIVE PROPERTY TO OTHER SPOUSE- by public instrument, recorded in registry property where property is situated. Alienation by spouse automatically terminate the administration and proceeds shall be turned over to owner-spouse.

PROPERTY DONATED TO SPOUSE : 1. if jointly with designation of shares- shall pertain to the donee-spouse as his or her own exclusive property. 2. if jointly, without designation of shares- shall pertain to the spouses - share and share alike. 3. If jointly, without designation of shares, and one of spouse refuses to accept, or incapacitated to accept, or predeceases or dies before perfection of donation- the share shall accrue by accretion to the other spouse unless the donor provides no accretion shall take place.

CONJUGAL PARTNERSHIP PROPERTY : 1. ACQUIRED by onerous title during marriage at the expense of common fund. - the test is the origin of the money invested in the purchase, if it came from conjugal funds, the property acquired is conjugal. (Rivera vs. Batallones, CA 40 OG 2090).

2. OBTAINED labor, industry, work or profession of either or both spouse - but teacher’s gratuity under special law, being remuneratory is not conjugal. (Alano vs. Florido, 61 phil 303) - money received under the SSS Law is not conjugal, although the employee-spouse contributed to the SSS with his salaries, but belongs to the designated beneficiary under the SSS Laws.

3. FRUITS, natural, industrial or civil due or received during marriage from the common property and from the exclusive property of each spouse. 4. SHARE of either spouse in the HIDDEN TREASURE as a finder or owner of the property where treasure found 5. ACQUIRED through OCCUPATION such as fishing or hunting 6. LIVESTOCKS existing upon dissolution of the partnership in excess of the number of each kind brought to the marriage by each spouse. 7. ACQUIRED by chance such as winning from gambling or betting. But losses shall be borne exclusively by the loser-spouse.(117)

H and W bought a fishpond from X for P48,000, payable in 3 equal installments. The first installment was paid with funds belonging exclusively to nd rd W, while the 2 and 3 installments were paid with funds borrowed by both from Y. In securing said loan, several lands belonging to W were given. Is the fishpond paraphernal or conjugal?

Suggested answerThe fishpond is partly paraphernal (1/3) and partly conjugal (2/3). The amount borrowed is conjugal in character because they are acting for the benefit of the partnership. The collateral does not affect the status of the fishpond.

PROPERTY BOUGHT ON INSTALLMENTSIf paid partly from exclusive funds, partly from conjugal funds1. belongs to spouse if ownership was vested before marriage 2. but to the conjugal partnership if ownership was vested after marriage. In either case, amount advanced by the spouse or partnership shall be reimbursed upon liquidation of the partnership.(118)

CREDITS PAYABLE IN INSTALLMENTS- (119) credit payable in installments within a period of time, the installments payable during marriage belongs to the spouse but interests thereon belongs to the partnership.

A obtained a loan in the amount of P20,000 from W prior to W’s marriage to H a year later. Said loan was to be payable in 3 years by way of monthly installments. To whom shall the installments due during marriage belong? How about the interests?

The credit is separate property of W. Installments in payment thereof is also separate. However, the interests due during marriage shall belong to the conjugal partnership.

IMPROVEMENTS ON SEPARATE PROPERTY OF SPOUSE(120) Elements : 1- improvements are for utility or adornment 2. made in separate property of the spouse 3. by the conjugal partnership or through acts or efforts of either or both spouse.

RulesA- shall pertain to the conjugal partnership if the cost of the improvement and resulting increase in value is more than the value of the property at the time of the improvement. B- shall pertain to the owner-spouse if the cost of the improvement and resulting increase is less than the value of the property at the time of improvement. C- the owner-spouse shall be entitled to reimbursement, and shall retain ownership thereof until reimbursement. Ownership shall be vested upon reimbursement, which shall be made at the time of the dissolution of the partnership.

The obligation to reimburse for the cost of the improvements, under Art. 120 FC, rests on the spouse upon whom ownership of the entire property is vested- there is no such obligation on the part of the purchaser of the property, in case the property is sold by the owner-spouse prior to reimbursement. (Ferrer vs Ferrer, 508 SCRA 570)

CHARGES AND OBLIGATION OF THE CONJUGAL PARTNERSHIP (121) 1. support of the spouses, support of the common children, support of the leg children of either spouse 2. debts and obligation contracted during marriage by : administrator-spouse for benefit of partnership, both spouses, by one of them with the consent of the other. 3. Debts and obligations contracted by either spouse without consent of the other to the extent that the family have been benefited.

4. All taxes, liens, charges and expenses, including minor or major repairs upon conjugal property. 5. All taxes and expenses for mere preservation made during marriage upon separate property of either spouse 6. Expenses to enable either spouse to commence or complete a professional, vocational or other activity for selfimprovement. 7. Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family. 8. Value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional, vocational or other activity for self-improvement.

9. Expenses for litigation between the spouse unless the suit is found groundless. If the conjugal property is insufficient, the spouse shall be solidarily liable with their separate properties.

ADDITIONAL CHARGES- (122) 10. personal debts contracted by either spouse before or during marriage, to the extent that they redounded to the benefit of the family. 11. Fines and pecuniary indemnities, and 12. Support of illegitimate children- shall be charged to the conjugal property after payment of the obligations from (a) to (1), and the spouse liable has no exclusive property or insufficient to pay for the fines, pecuniary indemnities and support of illegitimate children; subject to deduction from his/her share at the time of liquidation of the conjugal property..

Conjugal property cannot be held liable for the personal debts contracted by one spouse, unless some advantage or benefit is shown to have accrued to the conjugal partnership. (Buado vs CA, 586 SCRA 397)

Unlike in the system of absolute community where liabilities incurred by either spouse by reason of a crime or quasi-delict is chargeable to the absolute community property, in the absence or insufficiency of the exclusive property of the debtorspouse, the same advantage is not accorded in the system of conjugal partnership. The conjugal partnership of gains has no duty to make advance payments for the liability of the debtorspouse. (Buado vs CA 586 SCRA 397)

Legal presumption that debt redounds to the benefit of the family- If either spouse contracts an obligation on behalf of the family business, there is a legal presumption that such obligation redounds to the benefit of the conjugal partnership. (SEBTC vs Mar Tierra Corp. 508 SCRA 419; Ayala Investment and Development vs CA 286 SCRA 272)

Thus1. If the husband himself is the principal obligor in the contract, ie., the direct recipient of the money and services to be used in or for his own business or profession, the transaction falls within the term “obligations for the benefit of the conjugal partnership”.

2. But if the money or services are given to another person or entity and the husband acted only as a surety or guarantor, the transaction cannot by itself be deemed an obligation for the benefit of the conjugal partnership. It is for the benefit of the principal debtor and not for the surety or his family.

ADMINISTRATION AND ENJOYMENT OF CONJUGAL PROPERTY. (124) -shall belong to both spouses jointly in case of disagreement, husband’s decision prevails

- wife may go to court for relief, within five years from dateof contract implementing said decision - if spouse is incapacitated or unable to participate in administration of conjugal property, other spouse may assume sole powers of administration- except- power to dispose or encumber, which requires court approval or consent of the other.

- in the absence of the court authority or consent of the other spouse, the disposition or encumbrance shall be void however, the transaction shall be considered as continuing offer on the part of the consenting spouse and third person, and perfected as a binding contract upon the acceptance by the other spouse or approval by the court before offer is withdrawn by either or both offerors.

DONATION OF CONJUGAL PROPERTY –(125) either can not donate without the consent of the other except- moderate donations to charity or on occasions of family rejoicing or family distress.

DISSOLUTION OF CONJUGAL PARTNERSHIP (126) 1. upon death of either spouse 2. when there is decree of legal separation 3. when the marriage is annulled or declared void 4. in case of judicial separation of property during marriage under Art 134-138

SEPARATION DE FACTO- (127) shall not affect the conjugal partnership spouse who leaves the conjugal home or refuses to live therein without just cause, shall have no right to be supported

-when consent of spouse to any transaction is required, judicial authorization shall be obtained in a summary proceeding. - Present spouse may be given judicial authority to dispose or encumber separate property of other spouse to satisfy the latter’s share if conjugal property is not sufficient for the support of the family.

if spouse abandons the other without just cause or fails to comply with his/her obligations, the aggrieved spouse may petition court for : 1- receivership 2. judicial separation of property 3. authority to be sole administrator of conjugal property.

-SPOUSE DEEMED TO HAVE ABANDONED THE OTHERwhen she or he left the conjugal dwelling without any intention of returning - SPOUSE who left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his/her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

LIQUIDATION OF CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES(129) PROCEDURES : 1. inventory of conjugal and separate properties 2. amounts advanced by the conjugal partnership in payment of personal debts of either spouse shall be credited to the partnership as asset thereof. 3. Reimbursement to the spouse/s of : A- exclusive fund for acquisition of property B- for value of property vested to the conjugal Partnership

4. debts and obligation of partnership shall be paid 5. remainder of the exclusive property shall be delivered to each of them 6. loss of deterioration of movable belonging each spouse used for benefit of family shall be paid from common funds 7. net remainder of conjugal assets shall be divided equally between spouses, unless different proportion agreed upon in marriage settlement, or unless waived or forfeited as provided in the code 8. the presumptive legitimes of common children shall be delivered upon partition 9. conjugal dwelling and lot on which is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain unless otherwise agreed upon by the spouses, provided that children below 7 years deemed to have chosen the mother, unless the court decides otherwise; in case there is no majority, the court decides taking consideration the best interest of the children

LIQUIDATION OF CONJUGAL PARTNERSHIP OF 2 OR MORE MARRIAGES(131) Elements1. two or more marriages contracted by the same person. 2. marriages contracted before the effectivity of this code 3. liquidation carried out simultaneously

rules1.respective capital, fruits, and income of each partnership shall be determined, upon proof allowed under the rules of evidence 2. in case of doubt as to which partnership the existing properties belong, the same shall be divided between or among the different partnership in proportion to capital and duration of each.

SEPARATION OF PROPERTY OF SPOUSES : SEPARATION OF PROPERTY TAKES PLACE : 1. if stipulated in marriage settlement 2. by judicial order A- voluntary B- sufficient cause

VALID CAUSES FOR JUDICIAL SEPARATION OF PROPERTY: 1. CIVIL INTERDICTION 2. ABSENTEE(JUDICIAL) 3. LOSS PARENTAL AUTHORITY (court decree) 4. ABANDONMENT OF SPOUSE 5. FAILURE TO COMPLY WITH MARITAL OBLIGATION IN 101-marital, parental and property obligations. 6. ABUSE OF POWER ADMINISTRATION 7. SEPARATION IN FACT FOR 1 YEAR AND RECONCILIATION HIGHLY IMPROPABLE.

VOLUNTARY SEPARATION OF PROPERTY : Rules1. joint petition (verified) 2. creditors of community and personal notified 3. creditors of community and personal listed 4. court takes measure to protect creditors or persons with pecuniary interests 5. once decreed, liquidation of community property 6. During, pendency, community pays for support of sp and separation of property applies. 7. After dissolution, provisions on complete separation of property applies 8. Petition and decree shall be registered in the local civil registry 9. Separation of property of spouse shall not prejudice rights previously acquired by creditors

REVIVAL OF THE PRIOR PROPERTY REGIME : BY FILING A PETITION IN THE SAME COURT DECREE WAS ISSUED IN THE FOLLOWING CASES : 1. civil interdiction terminates 2. absentee reappears 3. court satisfied spouse will not again abuse administration 4. spouse returns to resume common life 5. parental authority judicially restored 6. spouses absent for one year returns 7. after decree, spouse voluntarily agree to revival of the former regime (no voluntary separation may thereafter be granted).

ADMINISTRATION OF EXCLUSIVE PROPERTY OF SPOUSE TRANSFERRED TO OTHER : 1. spouse becomes guardian of other 2. spouse declared absentee 3. spouse under civil interdiction 4. Spouse is fugitive from justice 5. if the spouse is disqualified because of : incompetence conflict of interest or other just cause- court shall appoint a suitable person to be administrator.

REGIME OF COMPLETE SEPARATION OF PROPERTY 1. agreed upon in marriage settlement 2. decreed by court in proper cases NOTE : COMPLETE SEPARATION OF PROPERTY REGIME CANNOT BE CONVERTED INTO ANY OTHER REGIME DURING MARRIAGE BECAUSE THERE IS NO LAW ALLOWING IT.

KINDS : AS TO EXTENT- A- total or partial AS TO KINDS-a- present, b-future, c-both

RIGHTS OF SPOUSES IN COMPLETE SEPARATION OF PROPERTY : 1.OWN, DISPOSE, POSSESS, ADMINISTER THEIR SEPARATE PROPERTY 2. OWN THE EARNINGS FROM BUSINESS, PROFESSION OR INDUSTRY AND FRUITS OF THEIR PROPERTY.

OBLIGATIONS :

1. BEARS FAMILY EXPENSES PROPORTIONATE TO INCOME OR CURRENT VALUE OF SEPARATE PROPERTIES. 2. LIABLE SOLIDARILY TO CREDITORS FOR FAMILY EXPENSES.

RULES IN CASES OF UNIONS WITHOUT MARRIAGE: FIRST GROUP: 1. CAPACITATED TO MARRY 2. LIVE EXCLUSIVELY WITH EACH OTHER AS H AND W 3. WITHOUT BENEFIT OF MARRIAGE

SECOND GROUP : Living together under a void marriage With previous valid marriage

RULES ON PROPERTY RELATIONS : 1. wages and salaries owned by both in equal shares. Irrespective of who is earning. 2. Properties acquired during cohabitation : A- if acquired by donation, succession or exchange- separate property. - fruit and income thereof- separate B- if acquired by parties through work or industry rules of co-ownership applies(proportionate to their efforts in acquiring) if no proof, presumed equal, hence equal sharing. NOTE : a party who did not actually participate in the acquisition shall be deemed to have contributed jointly if the former’s effort consisted in the care and maintenance of the family and the household.

In torres vs. Yaptinchay- the supreme court held that where the only contribution of the common-law wife in the acquisition of the properties was moral or inspirational in character, her interest as co-owner of such properties shall be determined by the courts by using their sound discretion.

MANAGEMENT SHALL BE JOINT NO ENCUMBRANCE OR DISPOSITION BY ACT INTER VIVOS WITHOUT CONSENTOF THE OTHER, UNTIL THE TERMINATION OF COHABITATION

SPECIAL RULES APPLICABLE TO VOID MARRIAGES : IF ONLY ONE PARTY IN GOOD FAITH, the OTHER GUILTY PARTY SHALL FORFEIT HIS SHARES AS FOLLOWS: common children in default thereof, to common child’s descendants

RULES ON SPECIAL VOID MARRIAGES such as : Bigamous, adulterous, concubine, both married to others, multiple alliancesOnly properties acquired by parties through their actual joint contribution of money, property or industry shall be owned in common in proportion to their contribution, HENCE : - wages and salaries belong to him exclusively - care by one party of home, children, and household or spiritual or moral inspiration provided to other, not included in article. - IF ONE PARTY IS VALIDLY MARRIED TO ANOTHER-share will accrue to community of his existing marriage

-IF PARTY IN BAD FAITH IS NOT VALIDLY MARRIED TO ANOTHER- share shall be forfeited in favor of common children or descendants of common children. - IF BOTH PARTIES IN BAD FAITH- SHARE shall be forfeited in favor of common children or descendants of common children.(rule in pari delicto does not apply)

FAMILY HOMEElements1. constituted jointly by husband and wife or by an unmarried head of a family 2. dwelling house where they and their family reside land on which it is situated - property subject of conditional sale on installments, where ownership is reserved by vendor only to guarantee payment of purchase price may be constituted as a family home. (156)

LIMITATIONS ON CONSTITUTION OF FAMILY HOME :

1. each family have only one home 2. family home can be constituted only on the dwelling place and therefore, in the locality where the family has its domicile. - there must be actual occupancy of the family home with the intention of dedicating the premises for such purpose. 3. the value of family home exempt from seizure of creditors can not exceed the limits fixed by law

COMMENCEMENT OF FAMILY HOME (153) The family home is constituted on the house and lot from the time it is occupied as a family residence, and continues so long as any of its beneficiaries actually resides therein. From the time of constitution, the family home is exempt from execution, forced sale or attachment except for1. non-payment of taxes 2. debts incurred prior to its constitution 3. debts secured by mortgages on the premises before or after its constitution 4. debts due to laborers, mechanics, architects, builders, materialmen, and others who have rendered service or furnished materials for the construction of the building.(155)

EXEMPTIONto the extent of P300,000.00 in case of urban areas (chartered cities) and P200,000.00 in case of rural areas.(157)

BENEFICIARIES OF FAMILY HOME (154) 1. husband and wife or unmarried person who is head of the family 2. their parents, ascendants, descendants, brothers and sisters living in the family home and dependent for support upon the husband and wife, or head of the family.

SALE, DONATION, ASSIGNMENT OR ENCUMBRANCE OF FAMILY HOME- (158) 1. may be sold, alienated, donated, assigned or encumbered by the owner/s thereof 2. with written consent of- person constituting the same -his spouse and - majority of the beneficiaries of legal age in case of conflict, court shall decide

EFFECT OF DEATH OF SPOUSES OF HEAD AND FAMILY -(159) family home shall continue despite death of one or both spouses or the unmarried head of family for a period of 10 years or for as long as there is a minor beneficiary. The family home continues until the beneficiary becomes of age. (Patricio vs Dario III, 507 SCRA 438) Heirs can not partition the family home unless the court find compelling reasons.

PROCEDURE FOR CLAIMS OF CREDITORS OF FAMILY HOME (160) creditor’s claim is not one of those for which family home is not exempt obtains a judgement in his favor reasonable ground to believe that family home’s value is more than the amount fixed by law for its exemption creditor may apply to the court rendering judgment for an order for the sale of the family home. The court shall order sale if the family home’s value is in excess of the amount fixed by law on its exemption.

FAMILYPOLICY- (149) Family is the foundation of the nation Family is the basic social institution which public policy cherishes and protects. Family relations are governed by law No customs, practice or agreement destructive of the family shall be recognized or given effect

FAMILY RELATIONS- Includesbetween husband and wife between parents and children among other ascendants and descendants among brothers and sisters whether of full-blood or half-blood

SUIT BETWEEN MEMBERS OF THE SAME FAMILY – (151) no suit shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed.

RULES DOES NOT APPLY TO CASES : Affecting civil status of persons Validity of marriage or legal separation Any ground for legal separation Future support Jurisdiction of courts Future legitime

PATERNITY AND FILIATIONPaternity- is the civil status of the father with respect to the child. Maternity- is the civil status of the mother with respect to the child. Filiation- is the status of the child in relation to the father or mother.

KIND OF FILIATION1-Natural- relation between parent and child arising from nature or from child’s birth. 2-Artificial- relationship that arises between parent and child by fiction of law or in imitation of nature, as in adoption.

LIGITIMATE CHILDRENFiliation of legitimate childrenby nature: legitimate illegitimate

by fiction of law: by adoption

LEGITIMATE CHILDREN- (164) I. those conceived or born during marriage of parents II – those conceived as a result of artificial insemination of the wife with sperm of husband of the wife with sperm of donor of the wife with sperm of both donor and husband

In case of artificial insemination-

both spouse authorized or ratified the insemination in a written instrument executed and signed by them before the birth of the child, the instrument shall be recorded in the civil registry together with the birth certificate of the child.

Presumption of legitimacy (Art. 164 FC) In Liyao Jr vs Tanhoti-Liyao, 378 SCRA 563, the husband and wife were separated for many years. During their separation, the wife had an illicit relation with another man, with whom she cohabited and had a child. When the paramour died, the wife on behalf of her child, filed an action for compulsory recognition of the latter as the illegitimate child of her paramour for the purpose of partaking in the latter’s vast estate. The SC denied the action because the child is presumed to be a legitimate child of the husband and wife, the child being conceived and born during the couple’s valid marriage.

In Concepcion vs CA, 468 SCRA 438, the wife during the subsistence of her marriage with her first husband, married anew. Thereafter, upon petition of the second husband, the second marriage was declared void for being bigamous and the common child of the wife and the second husband was declared to be an illegitimate child by the trial court. The custody of the child was awarded to the mother while the second husband was granted visitation rights. On appeal from the decision granting the second husband visitation rights over the child, the SC held that the second husband is not entitled to visitation rights because of the absence of parentchild relationship that exists between them. The Court explained that since the child was born during the valid marriage of the wife and the first husband, the child is presumed to be a legitimate child of that marriage.

GROUNDS TO IMPUGN LEGITIMACY OF A CHILD (166)

1. physical impossibility of sexual intercourse by husband with wife within the first 120 days of the 300 days which immediately preceded the birth of the child due to : a-physical incapacity of husband to have sexual intercourse with his wife b- fact that husband and wife were living separately in such a way that sexual intercourse was not possible. c- serious illness of the husband which absolutely prevented sexual intercourse

2. If it is proved that for biological or other scientific reasons , the child could not have been that of the husband, except in case of artificial insemination

3. that in case of children conceive through artificial insemination, the written authorization or ratification of either parent was obtain through mistake ,fraud, violence, intimidation or undue influence.

WIFE MARRYING WITHIN 300 DAYS FROM TERMINATION OF MARRIAGE (168) a child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided born within 300 days after termination of the 1st marriage.

b- Child born after 180 days following the celebration of the subsequent marriage is considered to have been conceived during the marriage, even though born within 300 days after termination of the former marriage.

WIFE’S DECLARATION OF LEGITIMACY OR ILLEGITIMACY OF CHILD (167) The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been convicted as an adulteress. CHILD BORN AFTER 300 DAYS FROM TERMINATION OF MARRIAGE (169) The legitimacy or illegitimacy of a child born after 300 days following the termination of the marriage shall be proved by whosoever alleges such legitimacy or illegitimacy.

PERIOD TO BRING ACTION TO IMPUGN LEGITIMACY (170) IF HUSBAND or IF HIS HEIRS ARE RESIDENT OF THE PLACE WHERE BIRTH TOOK PLACE OR WAS RECORDEDThe action must be brought within 1 year from knowledge of the birth or its recording in the civil register IF HUSBAND OR HIS HEIRS ARE NOT RESIDENT OF THE PLACE WHERE BIRTH TOOK PLACE OR WAS RECORDEDThe action must be brought within 2 years if he is residing in the Philippines, and 3 years if residing abroad If the birth of child was concealed from or unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of birth or fact of registration, whichever comes first.

HEIRS MAY BRING ACTION TO IMPUGN LEGITIMACY OF CHILD (171) if husband should die before the expiration of the period fixed for bringing the action. if husband should die after the filling of complaint, without having desisted therefrom. if the child was born after the death of the husband

PROOF OF FILIATION: (172) 1. Record of birth appearing in the civil registry 2. Final judgment 3. Admission of legitimate filiation in a public document or private handwritten instrument and signed by parent concerned. In the absence of the foregoingOpen and continuous possession of status of a legitimate child Any other means allowed by the rules of court and special laws, such asbaptismal certificate judicial admission family bible wherein name of child was entered common reputation respecting pedigree admission by silence testimonies of witnesses

It is settled in law and jurisprudence, that the status and filiation of a child cannot be compromised. Public policy demands that there be no compromise on the status and filiation of a child. Paternity and filiation or the lack of the same, is a relationship that must be judicially established, and it is for the Court to declare its existence or absence. It cannot be left to the will or agreement of the parties. (Uy vs Chua 600 SCRA 806.

In Uy vs Chua, while there was a previous compromise agreement between the parties approved by the court in a previous case wherein the petitioner had agreed that there was no blood relationship between her and the respondent, it was held that there is no res judicata even If the second case involves the same cause of action (for recognition of paternity) between the same parties considering that the compromise agreement in the previous case is null and void as there can be no compromise on the status and filiation of a child.

As for the baptismal certificate, it can only serve as evidence of the administration of the sacrament on the date specified but not of the veracity of the entries with respect to the child’s paternity. (Puno vs Puno Enterprises, Inc. 599 SCRA 585).

In Cabatania vs CA, 441 SCRA 96, the Court held that the extremely subjective test of physical resemblance or similarity will not suffice as evidence to prove paternity and filiation. This ruling abandons the dictum in Tijing vs CA 354SCRA 17, where the Court held that resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.

PERIOD TO CLAIM LEGITIMATE FILIATION –(173)

the action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity heirs have a period of 5 years to institute the action

if the child dies after commencing the action, the heirs of the child will be substituted for him, even if the parent also dies during the pendency of the action

RIGHTS OF LEGITIMATE CHILDREN- (174)

1. To bear surname of father and mother 2. To receive support from parents, ascendants, brothers and sisters 3. To be entitled to legitime and other successional rights under the civil code

ILLEGITIMATE CHILDRENChildren conceived and born outside a valid marriage are illegitimate, unless provided by the family code. (165) FILIATIONIllegitimate children may establish their illegitimate filiation in the same way as legitimate children ACTION TO CLAIM ILLEGITIMATE FILIATION (175) The action must be brought within same period for legitimate filiation except- when based on continuous possession of status of illegitimate children or by other means allowed under the rules of court, the action must be brought during the lifetime of the alleged parent.

RIGHTS OF ILLEGITIMATE CHILDREN – (176) 1. Use the surname of mother 2. Under the parental authority of mother 3. Entitled to support 4. Entitled to legitime under the civil code(1/2 that of the legitimate child) Note: RA 9255 approved on Feb. 24, 2004, allows the illeg. Child to use the surname of the father, if acknowledged by the latter.

A certificate of live birth purportedly identifying the putative father is not competent evidence of paternity where there is no showing that the putative father had a hand in the preparation of the certificate. The local civil registrar has no authority to record the paternity of an illegitimate child on the information of a third person. (Puno vs Puno Enterprises, Inc. 599 SCRA 585). In this case, it was observed that only the mother supplied the data in the birth certificate and signed the same while there was no evidence that the alleged father acknowledged the child as his.

Illegitimate children shall use the surname of the mother, regardless of whether or not the father admits paternity. (Mossesgeld vs CA, 300 SCRA 464).

Hence, the illegitimate father cannot compel the local civil registrar to register the certificate of live birth of the illegitimate child using his surname.

However, an illegitimate child shall have the option (but not an obligation) to use the surname of the father in the following instances: 1. If his/her filiation has been expressly recognized by the father through the record of birth appearing in the civil register 2. when an admission of paternity is made by the father in a public document or private handwritten instrument.

The recognition of the illegitimate child in the record of birth, or through an admission in a public document or private handwritten instrument is in itself, a consummated act of acknowledgment of the child’s paternity; hence, no separate action for judicial approval is necessary. (Dela Cruz vs Gracia, 594 SCRA 648)

Must the admission of paternity in a private handwritten instrument be signed by the putative father?

In Dela Cruz vs Gracia, 594 SCRA 648, the SC lay down the rules: a- where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, the same must be signed by the acknowledging parent. b. where the private instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and signature of the acknowledging parent is merely corroborative of such evidence.

In Briones vs Miguel, 440 SCRA 455, the Court reiterated the rule that an illegitimate child is under the parental authority of the mother, and the recognition of an illegitimate child by the father is a ground for ordering the latter to give support, but not custody of the child. The illegitimate father, however, is entitled to visitation rights.

In In re: Stephanie Naty Astorga, 454 SCRA 541, it was held that an illegitimate child, upon adoption by her natural father, may be allowed to use the surname of her natural mother as her middle name. The Court explained that the same is in keeping with the Filipino custom of adding the surname of the child’s mother as his middle name.

The SC held that the law does not allow one to drop the middle name from his registered name. Middle name serves to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. In this case, when Julian was born prior to the marriage of his parents, he was named Julian Lin Carulasan. After the subsequent marriage of his parents, his name was changed to Julian Lin Carulasan Wang. He now seeks to drop the middle name Carulasan. (In re: Change of name and/or correction ofEntry in the Civil Registry of Julian Lin Carulasan Wang, 454 SCRA 155)

In Braza vs the City Civil Registrar of Himamaylan City, Negros Occidental, GR No. 181174, Dec. 4, 2009, when the first wife found out that her deceased husband had a second marriage and a child in the second marriage, she filed on Dec. 23, 2005 a petition to correct the entries in the birth record of the child contending that the child could not have been legitimated because the marriage of the parents was void for being bigamous. In her petition, she likewise prayed that the marriage of the parents of the child be declared void on the ground that it is bigamous.

The court ruled that the cause of action is actually to seek the declaration of the marriage of the parents of the child as void for being bigamous and impugn the child’s, which causes of action are governed not by Rule 108 but by AM No. 02-11-10-SC which took effect on March 15, 2003, and Art. 171 of the FC, hence, the petition should be filed in a Family Court as expressly provided in said Code. The Court reasoned that the validity of marriages as well as the legitimacy and filiation can be questioned only in a direct action seasonably filed by the proper party, and not through a collateral attack such as the petition filed before the court a quo.

Since the marriage to be declared a nullity was celebrated during the effectivity of the FC and the case questioning its validity was filed after March 15, 2003, the case is governed by AM No. 02-11-10-SC. Thus, only the husband or second wife, who are parties to the marriage, can file the action.

LEGITIMATED CHILDRENLegitimation- is the remedy by means of which those who in fact were not born in wedlock and should therefore, be considered illegitimate, are by fiction, considered legitimate, it being supposed that they were born when their parents were validly married. Legitimated children are illegitimate children who, because of the subsequent marriage of their parents are, by legal fiction, considered legitimate.

Requisites of legitimation: 1. the child is conceived and born outside of wedlock 2. at the time of the child’s conception, the parents were either: not disqualified by any impediment to marry each other, or disqualified only because either or both of them were below 18 years of age (RA 9858) 3. after the birth of the child, the parents subsequently enter into a valid marriage

WHEN LEGITIMATION TAKES PLACE (178)

Legitimation takes place by the subsequent marriage of parents provided the parents have acknowledged the child before or after the marriage. Annulment of voidable marriage shall not affect the legitimation. RIGHTS OF LEGITIMATED CHILDREN- (179) Same rights as legitimate children.

EFFECT OF LEGITIMATION –(180) The legitimation shall retroact to the time of the child’s birth The legitimation of children who died before the celebration of the marriage shall benefit their descendants.(181)

WHO IMPUGNS AND GROUNDS TO IMPUGN LEGITIMATION (182) Legitimation may be impugned only by those who are prejudiced in their rights, (testamentary or reinstated heirs), within five years from the time their cause of action accrues.(from death of putative parents)

Legitimation may be impugned on the following grounds – 1. subsequent marriage of parents is void 2. child allegedly legitimated is not a natural child 3. the child is not really the child of the alleged parents.

WHO MAY ADOPT? 1. of age 2. possessed of civil capacity and legal rights 3. can support and care for his children, in keeping with the means of the family 4. 16 years older than adopted except – 1. adopter is parent by nature of adopted 2. adopter is spouse of legitimate parent of the person adopted NOTE : Person with children can adopt Adopter or adopted may be single or married Age difference is to assure maturity

WHO MAY NOT ADOPT ? 1. guardian with respect to ward before the final account of guardianship is approved 2. those convicted of crime involving moral turpitude 3. alien except- a- former Filipino adopting relatives by consanguinity b- adopting the legitimate child of Filipino spouse c- married to a Filipino citizen and jointly adopting relative by consanguinity of the latter (adoption of illegitimate child of Filipino spouse) exception to exception- inter- country adoption

HUSBAND AND WIFE MUST JOINTLY ADOPT : Except1. spouse adopts his illegitimate child, with the consent of the other spouse 2. spouse adopts the legitimate child of the other, in which case, exercise joint parental authority. 3. if the spouse are legally separated from each other. (Sec. 7, RA 8552)

WHO MAY NOT BE ADOPTED? I. PERSON OF AGE Excepta- child by nature of the adopter or by the spouse b- prior to adoption, considered and treated as child during minority 2. alien with no diplomatic relation 3. person already adopted , unless revoked or rescinded

WHOSE CONSENT IS NEEDED ? 1. child to be adopted if 10 years or over 2. parent by nature of adopted 3. children of adopter, if 10 yrs over 4. illeg. Children of adopter, if 10 yrs over and living with adopter 5. spouse of adopter 6. spouse of person to be adopted NOTE : consent of parent who abandoned child is not necessary. If both parents abandoned the child to be adopted, then consent of those exercising substitute parental authority is needed

In Landingin vs Republic, 493 SCRA 415, the Court held that the written consent of the biological parents is indispensable for the validity of a decree of adoption. The Court explained that the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and reestablished in the adoptive parents.

If the written consen of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If it is claimed that the biological mother of the minor had indeed abandoned them, the written consent of their legal guardian must be adduced. (Landingin vs Republic)

Prior to the amendment introduced by RA 9523 (effective 2009), the declaration of a child as legally available for adoption may be had either judicially or administratively. With the amendment introduced by RA 9523, only the DSWD now has the sole authority to issue the certification declaring a child legally available for adoption. Such certification that a child is legally available for adoption shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature.

In addition, the amendatory law provides that such certification shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption proceeding (as provided in RA 8552 or the Domestic Adoption Act) and in an Inter-country adoption proceeding (as provided in RA 8043 or the InterCountry Adoption Act).

EFFECTS OF ADOPTION : -Adopted shall be deemed child of the adopter -Adopted has right to use surname of adopter -Parental authority of parents by nature shall terminate and vested in the adopter – exceptif adopter is spouse of parent by nature of adopted, then, both shall exercise joint parental authority -Adopted shall remain intestate heir of his parents by nature and other blood relatives -Adoption cannot confer on the adopted the citizenship of the adopter

LEGAL SUCCESSION ON THE ESTATE OF ADOPTED : children\ leg. illeg. Descendants spouse of adopted shall inherit from him parents by natureadopters-

½ of estate ½ of estate

surviving spouseadopters-

½ of estate ½ of estate

illeg. children adopters

½ of estate ½ of estate

illeg. Childrensurviving spouseadoptersadopters only only collateral relatives- I

1/3 estate 1/3 estate 1/3 estate whole estate intestacy applies

GROUNDS FOR REVOCATION OF ADOPTION :

A.IF ADOPTED IS MINOR OR INCAPACITATED(on the same grounds for loss or suspension of parental authority) 1. Art. 229upon adoption of child adopted by another upon appointment of judicial guardian judicial declaration of abandonment final judgment divesting parental authority from adopters judicial declaration of absence or incapacity of person exercising parental authority

2. Art. 230 – suspended upon conviction with penalty of civil interdiction. Reinstated upon service of penalty or pardon or amnesty 3. Art. 231- suspend parental authority if : treats child with excessive harshness gives child corrupting order or counsel or example compels child to beg subjects child or allows child to be subjected to acts of lasciviousness 4- Art. 232-subjected child to sexual abuse or allows him to be subjected to abuse

WHO MAY FILE ACTION FOR REVOCATION/ RESCISSION? 1- any person authorized by court 2. proper government instrumentality acting in behalf of the child, like –DSSD B- IF ADOPTED CHILD IS ALREADY 18 YRS OLD – File personallyGrounds- 920- for disinheriting as ascendant a- parents abandoned their children, induced their daughter to live a corrupt or immoral life b- parent convicted of attempt against the life of adopted, spouse, ascendants or descendants c- Accused adopted of a crime with penalty of imprisonment for six years or more, accusation found to be false. D- Convicted pf adultery or concubinage with spouse of adopted e- Refusal to support the adopted without justifiable cause

Note: The adopter can no longer file an action to revoke the adoption. (Adm. Circular). The reason being that adoption is for the benefit of the adopted.

EFFECT OF REVOCATION: If adopted still minor, reinstate parental authority of parents, unless disqualified or incapacitated, in which case, court appoints a guardian If adopted is physically or mentally handicapped court appoints a guardian All reciprocal right and obligations between adopter and adopted are extinguished Adopted shall resume his surname prior to adoption Court shall order the amendment of the records of the birth of adopted in the local civil registrar

INTER-COUNTRY ADOPTION LAW

INTER-COUNTRY ADOPTION Inter-country adoption refers to the socio-legal process of adopting a Filipino child by an alien or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. Child means a person below fifteen (15) years of age unless sooner emancipated by law.

Legally free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code.

WHO MAY BE ADOPTEDOnly a legally free child may be the subject of inter-country adoption. Requisitesa- Child Study Report b- Birth Certificate or foundling certificate c- deed of voluntary commitment or decree of abandonment or death certificate of parents d- recent photo of child

WHO MAY ADOPT Any alien or Filipino citizen permanently residing abroad ifa- at least 27 years of age and at least 16 years older than the child to be adopted, at the time of application except- 1. parent by nature of the child to be adopted 2. spouse of such parent (of child to be adopted) - if married, his or her spouse must jointly file for adoption b- has the capacity to act and assume all rights and responsibilities of parental authority under his national law and has undergone appropriate counseling from an accredited counselor in his country.

c- has not been convicted of a crime involving moral turpitude d- is eligible to adopt under his national law e- is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted.

f- agrees to uphold the basic right of the child as embodied under Philippine laws, the UN Convention on the Rights of the Child and to abide by the Rules and regulations issued to implement the provisions of this act.

g- comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his or her national law. h- possess all the qualifications provided herein and other applicable Philippine laws.

WHERE TO FILE APPLICATIONAn application to adopt a Filipino child shall be filed a- Regional Trial Court having jurisdiction over the child, or b- Inter-Country Adoption Board thru: l. intermediate agency, 2. governmental or accredited agency in the country of the adopting parents

Documents to be submitted1. birth certificate 2. marriage contract 3. written consent of biological/adopted children above 10 years of age 4. physical. Medical and psychological evaluation by duly licensed physician or psychologist 5. Income tax return or any document showing the financial capability of the applicants 6. police clearance of applicants 7. character reference from local church/minister, applicant’s employer and member of the immediate community who have known the applicants for at least five years 8. recent postcard-size pictures of the applicant and his immediate family

TRIAL CUSTODY-

Trial custody shall be for a period of six months from time of placement.

SUPPORT

SUPPORT- everything indispensable for : 1- sustenance 2- dwelling 3- medical attendance 4- education 5- transportation in keeping with the financial capacity of the family

- The education of the person entitled to be supported shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority.

- Transportation shall include expenses in going to school or to and from the place of work.

CHARACTERISTICS : - Purely personal – founded on personal necessity - Cannot be attached or executed- SURVIVAL - Instransmissable and non-assignable - Variable - Reciprocal - Demandable from time of needs and even beyond age of majority or even if married.

PERSON OBLIGED TO GIVE SUPPORT : 1- Spouses 2- Leg. asc. And desc. 3- Parents and their leg. children, and leg. and illeg. children of the latter. 4- Parents and their illeg. Children, and the leg. and illeg. children of the latter. 5- Leg. brothers and sisters, whether of full or half blood. 6- Illeg. Brothers or sisters, except- when already of age and due to cause imputable to claimant’s fault or negligence

SOURCES OF SUPPORT : - SPOUSE- absolute or conjugal property - Common children- absolute or conjugal property - Children of spouse by another marriage- same

Illegitimate children of either spousea- if ABSOLUTE COMMUNITY REGIME1- separate property 2- If insufficient- absolute community But deduct from share of spouse upon liquidation b- if CONJUGAL PARTNERSHIP1- separate property 2- if insufficient-conjugal property But deduct from share of spouse upon liquidation

Brothers or sisters- from separate property of spouse - If insufficient-from absolute or conjugal property if financially capable.

But to be deducted upon liquidation -

SUPPORT DURING PROCEEDING FOR LEGAL SEPARATION, ANNULMENT OF MARRIAGE OR DECLARATION OF NULLITY OF MARRIAGE:

during pendency- from absolute or conjugal property after judgment- mutual support ceases

BUT IN LEGAL SEPARATION- the court may order the guilty spouse to give support to innocent spouse, specifying the terms thereof.

ORDER OF PREFERENCE ON WHO WILL GIVE SUPPORT : 1- Spouse 2- Descendants, nearest in degree 3- Ascendants, nearest in degree 4- Brothers or sisters

In Patricio vs Dario III, 507 SCRA 438, it was held that grandchildren cannot demand support directly from their grandparents, if they have parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to follow the order of support under Art. 199 FC

RULES- If support falls on two persons or more, both shall give support in proportion to resources of each - In cause of urgent need, the court may order one to give support provisionally, subject to claim for reimbursement from the other. - If several beneficiaries, against only one giver, and resources not sufficient- order of payment shall be as follows : 1. spouse 2. descendants, nearest degree 3. ascendants, nearest in degree 4. brothers or sisters

But in case of concurrence between spouse and child- child shall be preferred to be supported.

SPECIAL RULES ON SUPPORT : amount of support dependent on : 1- means of giver 3- necessities of recipient

- support demandable from needs, but payable from judicial or extra-judicial demands - support pendent lite claimed in accordance with the rules of court - payment of support shall be made within five days from each corresponding month. No refund even if dies within the month

support can be made by : (option of giver) - paying the allowance fixed - receiving and maintaining in the family dwelling the recipient except- when there is moral or legal obstacle thereto.

Right to receive support - money or property given as support – not subject to levy or attachment or execution except 1. support in arrears 2. contractual support in excess of legal support 3. support given by will in excess of legal support

NOTE : Contractual support can be subject to adjustment whenever modification is necessary due to changes in the circumstances manifestly beyond the contemplation of the parties

Support can be given by strangers – - When giver has knowledge, the stranger can claim from giver, unless the stranger has no intention to be reimbursed - When giver unjustly refuses or fails to give support when urgently needed by the latter, stranger may give, with right of reimbursement. This applies specially where mother and father unjustly refused or fails to give support to the child if urgently needed.

PARENTAL AUTHORITY

PARENTAL AUTHORITY-

Concept- mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even beyond under certain circumstances.

PURPOSE – 1. sound physical development of children 2. cultivation of their intellectual perceptions 3. nourishment of their appetitive and sensitive faculties(Reyes vs. Alvarez, 8 Phil. 723)

LAW ON PARENTAL AUTHORITYBefore august 3 1988, PD 603 and civil code After august 3, 1988 , family code expressly repealing Title XI of the civil code on parental authority and Arts. 17, 18 and 19 of PD 603 on parental authority (art 254, family code)

CHARACTERISTICS OF PARENTAL AUTHORITY – - A natural right and duty of parents(209) - Can not be renounced, transferred or waived except in cases authorized by law, (210), as in the case of: 1. adoption 2. guardianship 3. commitment of child in an entity or institution engaged in child care or in children’s home(223-224)

- Jointly exercised (211) in case of disagreement, father’s decision prevails unless there is judicial order to the contrary. - Purely personal and cannot be exercised thru agents - Temporary, ends when child emancipated, can take care of himself & his property or parent unable to properly exercise the authority

PARENTAL AUTHORITY CONSISTS OF: (209) caring and rearing of such children for civic consciousness and efficiency, development of their moral, mental, and physical character and well-being, parental responsibility

IN CASE OF DEATH OR ABSENCE OF EITHER PARENT- parental authority shall be exercised by : parent present (122)

IN CASE OF REMARRIAGE OF SURVIVING PARENT- parental authority shall be exercised by : surviving parent, unless court appoints a guardian (212)

IN CASE OF SEPARATION OF PARENTS, (213) parental authority shall be exercised by : parent designated by court, but : court shall take into account all relevant considerations, specially the choice of child over 7 years of age, unless parent chosen is unfit; no child under 7 years of age shall be separated from the mother, unless court finds compelling reason to order otherwise, such as insanity, communicable disease which might endanger health and life of child, maltreatment of child or other similar reasons which make her unfit.

In the case of Pablo-Gualberto vs Gualberto, 461 SCRA 450, and GamboaHirsch vs CA, 527 SCRA 380, the Court referred to the second paragraph of Article 213 of the FC, giving the mother preference in awarding custody of the child under the age of seven as the “tender age presumption”.

The Court further held that the mere fact that the mother is a lesbian is not a compelling reason to deprive her of custody without showing that she carried on her purported relationship with a person of the same sex in the presence of the child or under circumstances not conducive to the child’s proper moral development.

The so-called “tender age presumption” under Art. 213 of the FC may be overcome only by compelling evidence of the mother’s unfitness. The mother is declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with communicable disease. (Gamboa-Hirsch vs CA)

IN CASE OF DEATH, ABSENCE OR UNSUITABILITY OF BOTH PARENTSsubstitute parental authority shall be exercised by surviving grandparent if several survive, one designated by court (214)

FILIAL PRIVILEGEDescendant can not be compelled to testify, in a criminal case, against his parents and grandparents , exceptindispensable in a crime against the descendants OR crime by one parent against the other

SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY shall be exercised by : (in default of parents or court appointed guardian ) 1. surviving grandparent 2. oldest brother or sister, over 21 years of age, unless disqualified 3. child’s actual custodian, over 21 of age, unless unfit or disqualified. (216)

IN CASE OF FOUNDLINGS , ABANDONED, NEGLECTED OR ABUSE CHILDREN –(217) Substitute parental authority shall be entrusted to – - heads of children’s homes, orphanages and similar institution duly accredited by proper gov’t agency - designation shall be through summary judicial proceeding

SPECIAL PARENTAL AUTHORITY SHALL BE EXERCISED BY- the School, its administrator and teachers - Individual, entity or institution engage in child care while under their supervision instruction or custody It shall apply to all authorized activities whether inside or outside the premises of the school , entity or institution.

The school administrator, teacher or individual engaged in child care and exercising parental authority shall in no case inflict corporal punishment upon the child.

DISTINCTION BETWEEN SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY – Substitute parental authority is exercised in the case of death, absence or unsuitability of parents. Substitute parental authority is not exercised concurrently with the exercise by parent of parental authority. Special authority is exercised concurrent with parental authority of parents. The parents temporarily relinquish parental authority over those granted special authority while children are in the custody of the latter.

LIABILITY OF PERSONS GIVEN SUBSTITUTE OR SPECIAL PARENTAL AUTHORITYShall be principally and solidarily liable for damage caused by acts or omissions of the minor under their custody. The parents, guardian or person exercising substitute parental authority shall be subsidiarily liable. Due diligence is available as defense.

RIGHTS OF PARENTS OR PERSON EXERCISING PARENTAL AUTHORITY(220) - to keep them in their company - to support - to educate - to instruct them by right precept and good example

- to provide for their upbringing in keeping with their means. - to give them love and affection - to give them advice and counsel - to give them companionship and understanding - to provide them with moral and spiritual guidance - to inculcate in them honesty, integrity, selfdiscipline, self-reliance, industry and thrift - To stimulate their interest in civic affairs

- To inspire in them compliance with duties of citizenship - to enhance, protect, preserve and maintain their physical and mental health at all times . - to furnish them with good and wholesome educational materials

- To supervise their activities, reaction and association with others - To protect them from bad companies - To prevent them from acquiring habits detrimental to their health, studies and morals. - to represent them in all matters affecting their interest

- to demand from them respect and obedience - to impose discipline on them as may be required under the circumstances - to perform such other duties as are imposed by law upon parents and guardians, such as those right and duties specified in chapters 3 and chapter 4 of PD 603 on parental crimes

ART 204 of PD 603 – penalizing parents or guardians who aid, or connive in the commission by the child of delinquency or do acts promoting or contributing to a child becoming juvenile deliquent.

LIABILITY FOR TORTS- (221) Parents and persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children, LIVING in their company and UNDER their parental AUTHORITY , subject to defenses of due diligence.

The liability is solidary. (Araneta vs. Arreglado 104 Phil 529 ) and primary and direct, not subsidiary. (Barredo vs. Soriano, 73 Phil 607)

MEASURES TO ASSIST PARENTS IN IMPOSING DISCIPLINE TO CHILD223- petition court where child resides for an order providing for disciplinary measure over the child = child shall be entitled to assistance of counsel, of his own choice or appointed by the court = summary hearing shall be conducted wherein petitioner and child shall be heard = if court finds petitioner at fault, even if petition is meritorious, the court may also order deprivation or suspension of parental authority ; or adopts such measure as may be reasonable, including appointment of a guardian

224- the measure may include commitment of the child for not more than 30 days in entities or institution engaged in child care or children’s home duly accredited by proper gov’t agency - parent shall not interfere with the care of the child whenever committed, but shall provide for his support. - Upon proper petition or motu propio, the court may terminate the commitment whenever just and proper.

=

PARENTAL AUTHORITY OVER PROPERTY OF CHILDREN (225) Father and mother shall jointly exercise legal guardianship over the property of their unemancipated common children without necessity of court appointment. if the market value of the property or annual income of the child exceeds P50,000.00,the parent concern shall furnish a bond in an amount the court may determine, but not less than 10 % of the value of the property or annual income

Verified petition for approval of the bond shall be filed in proper court where child resides, or if child resides in foreign country, court of the place where the property is situated.

PROPERTY OF THE CHILD INCLUDES – (226) 1- child’s earnings through his labor, work or industry 2. property acquired by child by gratuitous title 3. property acquired by child by onerous title 4. fruits of all the properties of the child 5. insurance proceeds accruing to the child

- It shall be devoted exclusively for his support and education, unless the title or transfer provides otherwise. - And secondarily, for the collective needs of the family. parental usufruct over the properties of their unemancipated children had been abolished.

UNEMANCIPATED CHILD ENTRUSTED WITH MANAGEMENT OF PARENTS PROPERTY 227 - net proceeds of properties shall belong to the parent/s owner. - Child shall be given reasonable monthly allowance in an amount not less than which shall be given to strangers who manages the property - If parents give the entire proceeds of the property to the child, it shall not be charged to his legitime

TERMINATION OF PARENTAL AUTHORITY (228) - upon death of parents - upon death of child - upon emancipation of the child

termination is permanent and can no be revived

OTHER GROUNDS FOR TERMINATION OF PARENTAL AUTHORITY (229) - upon adoption of the child - upon appointment of a general guardian - upon judicial declaration of abandonment of the child in a case filled for the purpose - upon final judgment of a competent court divesting the party concerned of parental authority - upon judicial declaration of absence or incapacity of the person exercising parental authority

- PARENTAL AUTHORITY may be revived by final judgment by : - rescission of the adoption - termination of the guardianship - restoration of parental authority to parent who has returned home after abandoning child, or who has been divested of authority for any other reason - restoration of parental authority to an absent spouse who has returned or formerly incapacitated parents who has regained incapacity

AUTOMATIC SUSPENSION OF PARENTAL AUTHORITY (230)

- conviction of parent for crime which carried the penalty of civil interdiction - authority is automatically restored upon service of the penalty or upon pardon or amnesty of the offender

SUSPENSION OF PARENTAL AUTHORITY THRU COURT ACTION (231) Grounds- treats the child with excessive harshness or cruelty - gives the child corrupting orders, counsel or example - compels the child to beg - subject child or allows him to be subjected to acts of lasciviousness above grounds include cases which have resulted from culpable negligence of the parents

PERMANENT DEPRIVATION OF PARENTAL AUTHORITY (232) parent subjected the child or allowed him/her to be subjected to sexual abuse deprivation is permanent and can not be restored

NO CORPORAL PUNISHMENT BY THOSE EXERCISING SUBSTITUTE AUTHORITY (233) - person exercising substitute parental authority have the same authority over the child as the parents - can impose discipline on the child as required under the circumstances, which includes moderate punishment, but not amounting to maltreatment or cruelty - can not inflict corporal punishment upon the child

EMANCIPATION AND AGE OF MAJORITY- (234237 FAMILY CODE) (REP. ACT NO. 6809) Section 1 . Article 234, executive Order NO. 209 of the Family Code of the Philippines, is hereby amended to read as follows : “Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of 18 years.”

Section 2. Articles 235 and 237 of the same code are hereby repealed

Section 3. Article 236 of the same code is also hereby amended to read as follows : “Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exception established by existing laws in special cases

Contracting marriage shall require parental consent until the age of 21

Nothing in this code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below 21 years of age mentioned in the second and third paragraphs of Article 2180 of the new civil code

BY reason of section 3 of RA 6809, the decision in Elcano vs. Hill, 77 SCRA 89 wherein the father of a married minor was held still liable for damages resulting from the child’s having killed someone, which has been abrogated by the former Article 236 of the family code, would still now be applicable under the said amendment to Article 236.

Change of First Name: Administrative change of name or nickname is allowed on the following grounds: 1. petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. the new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; 3. the change will avoid confusion. (RA 9048)

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. (Wang vs Cebu City Civil Registrar, 454 SCRA 155)

In Silverio vs Republic, the SC held that a person’s first name