Persons And Fam Notes

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CIVIL CODE OF THE PHILIPPINES (R.A. 386) Volume One: Persons and Family Relations

INTRODUCTORY CHAPTER 

Law is considered as “instructions from the maker.”

The human mind consists principally of two faculties 1.

the intellect – the proper object of which is the truth; and

2.

the will – the proper object of which is the good.

Classification of Law According to the Manner of its Promulgation 1. Natural Law – promulgated impliedly in our conscience and body Natural Moral Law – applies to our higher faculties. e.g. do avoid evil

good and

Law of Nature – applies to both our higher and lower faculties. e.g. the law of gravity 2. Positive Law – promulgated expressly or directly Divine Positive Law – e.g. the 10 Commandments Divine-Human Positive Law – e.g. the commandments if the Catholic Church

Roman

Human Positive Law – e.g. congressional statutes, executive

orders

Human Positive Law – it is a reasonable rule of action, expressly or directly promulgated by competent human authority for the common good.

2 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Essential Elements of Human Positive Law 1. Reasonable rule of action 2. Due promulgation – otherwise obedience can hardly be expected 3. Promulgation by competent authority 4. Generally, a sanction imposed for disobedience Human Positive Law Distinguished from Morality While Human Positive Law covers only external conduct, morality covers both external acts and internal thoughts. Moreover, the former is enforced by the State; this is not so in the case of morality. Concepts of Law as: 1. Derecho – the abstract science of law 2. Ley – is a specific law note: a student of law (derecho) studies specific laws (leyes) Classification of Human Positive Law 1. According to whether a right is given, or merely the procedure for enforcement is laid down: 1.1.

Substantive Law – that which establishes rights and duties

1.2.

Remedial (or procedural or adjective) Law – that which prescribes the manner of enforcing legal rights and claims

2. According to the Scope or content of the law: 2.1.

Private Law – that which regulates the relations of the members of a community with one another

2.2.

Public Law – that which governs the relations of the individual with the State or ruler or community as a whole

3. According to force or effect: 3.1.

Mandatory and/or Prohibitive Laws – those which have to be complied with. Disobedience is punished either by direct penalties or by considering an act or contract void.

3 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA 3.2.

Permissive (or suppletory) Laws – those which may be deviated from, if the individual so desires. e.g. In the case of “hidden treasure,” the finder gets 50%.

Civil Law – that branch of the law that generally treats of the personal and family relations of an individual, his property and successional rights, and the effects of his obligations and contracts. Civil Law Distinguished from Political Law While civil law governs the relations of the members of a community with one another, political law deals with the relations of the people and the government. Our civil law was premised principally on the old Civil Code (the Civil Code of Spain of 1889).

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CHAPTER I EFFECT AND APPLICATION OF LAWS

Art 1. This Act shall be known as the Civil Code of the Philippines Sources of the Philippine Civil Law 1. The 1935 and the 1937 Philippine Constitutions, respectively 2. Statutes, laws, presidential; decrees, or executive orders which are applicable 3. Administrative or general orders 4. Customs of the place 5. Judicial decisions 6. Decisions of foreign courts 7. Principles covering analogous cases 8. Principles of legal hermeneutics 9. Equity and the general principles of law Books of the Civil Code 1. Book I – Persons 2. Book II – Property, Ownership, and its Modifications 3. Book III – Different Modes of Acquiring Ownership 4. Book IV – Obligations and Contracts The Code Commission Composed of five (5) members, it was created by then Pres. Manuel A. Roxas E.O. 48 dated March 20, 1947 The Chairman was Dean George Bacobo Congress approved the draft on June 18, 1949 as R.A. 386

through

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Art. 2. Laws shall take effect after 15 days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect 1 year after publication.

General Rule: 15 days after completion of publication in Official Gazette or newspaper of general circulation Exception:

“unless otherwise provided.” The law can provide its own date of effectivity, i.e., it can provide for a period less than or greater than 15 days after publication before the law takes effect.

Publication is MANDATORY even if the law provides its own date of effectivity. Internal regulations of administrative agencies which bind only the agency need not be published. Publication in the Official Gazette is not necessary so long as it is not punitive in character.

On Aug. 30, 1950 the Civil Code took effect. EO 200 (Aquino) laws to be effective must be published either in the Official Gazette or in a newspaper of general circulation in the country. Publication not to be in Official Gazette because of its erratic release and limited readership. Publication is intended to enable people to become familiar with the statute. Must be in full or it is no publication at all. Circulars which prescribe a penalty for their violation should be published before becoming effective. Publication is an indispensable requirement, absence of which will render the law ineffective.

Art. 3. Ignorance of the law excuses no one from compliance therewith. Ignorantia legis non excusat

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The Article applies to all kinds of domestic laws, civil or penal Applies only to mandatory and prohibitory laws Ignorance of foreign law is not ignorance of the law, but ignorance of fact because foreign laws must be alleged and proved as matters of fact, there being no judicial notice of said foreign laws If the foreign law is not properly alleged and proved, the presumption is that it is the same as our law When we say ignorance of the law, we refer not only to the literal words of the law itself, but also to the meaning or interpretation given to said law by our courts of justice While ignorance of the law is no excuse, ignorance of the fact eliminates criminal intent as long as there is no negligence. Thus, a man who marries a second wife upon reasonable belief after due search that his wife, missing for 10 years, is dead, does not incur criminal responsibility. Even if it turns out that the first wife is alive. The Civil Code specifically provides that a mistake on a doubtful or difficult question of law may be the basis of good faith (Art. 526). He is liable, but his liability shall be mitigated.

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided General Rule: Rules are not retroactive Law looks to the future. If the rule was that laws were retroactive, grave injustice would occur, for these laws would punish individuals for violations of laws not yet enacted. Exceptions: 1. When the law itself expressly provides for retroactivity (insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws) Exception to the exception: ex post facto law when retroactivity impairs the obligation of contract

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2.

If laws are remedial in nature. e.g. new rules of court applied to pending actions.

3.

If the statute is penal in nature favorable to the accused who is not a habitual delinquent

4.

If the laws are of an emergency in nature and are authorized by the police power of the government

5.

If the law is curative (cure errors or irregularities)

6.

Substantive right be declared for the first time, unless vested rights are impaired

Art. 5. Acts executed against the provisions of mandatory and prohibitory laws shall be void, except when the law itself authorizes their validity. Mandatory Laws – omission of which renders the proceeding or acts to which it relates generally illegal or void. Example: prescriptive periods Prohibitory Laws – contain positive prohibitions and are couched in the negative terms importing that the act required shall not be done otherwise than designated. Example: “NO”… One has to obey mandatory statutes, otherwise his acts would generally be void. Violation of directory laws does not result in invalid acts. Exceptions If the law expressly provides for the validity of acts committed in violation of a mandatory or prohibitory provision of a statute, such act shall be considered valid or enforceable. 1.

When the law makes the act not void but merely voidable

8 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA 2.

When the law makes the act valid, but subjects the wrongdoer to criminal responsibility

3.

When the law makes the act itself void, but recognizes some legal effects flowing therefrom

4. been

When the law itself makes certain acts valid although generally they would have void

Art. 6. Rights may be waived, unless the waiver is contrary to law, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. Rules for the Waiver of Rights General rule: rights may be waived Exceptions: 1. When the waiver is contrary to law, public order, public policy, morals, or good customs; 2. When the waiver is prejudicial to a third person with a right recognized by law Right – the power or privilege given to one person and as a rule demandable of another. e.g. the right to recover a debt justly due. Generally, rights involve two (2) subjects: 1. Active subject – the person entitled. 2. Passive subject – the person obliged to suffer the enforcement of the right. Rights may be: 1. real rights (jus in re, jus in rem) – enforceable against the whole world (absolute right) 2. personal rights (jus in personam, jus ad rem) – enforceable against a particulat individual (relative rights).

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Waiver – intentional relinquishment of a known right; not presumed but must be clearly and convincingly shown, either by express stipulation or acts admitting no other reasonable explanation Requisites of a Valid Waiver 1. The person waiving must be capacitated to make the waiver; 2. The waiver must be made clearly, but not necessarily express; 3. The person waiving must actually have the right which he is renouncing; 4. In certain instances the waiver must comply with the formalities of a donation (like the express remission of a debt in favor of the waiver); 5. The waiver must not be contrary to law, morals, public policy; 6. The waiver must not prejudice other with a right recognized by law Examples of Rights that Cannot be Renounced 1. Natural right, such as the right to life 2. Alleged rights which really do not yet exist 3. Those the renunciation of which would infringe upon public policy 4. When the waiver is prejudicial to a third person with a right recognized by law Examples of Rights that May be Renounced 1. Support in arrears 2. The right granted to prepare at least two days before trial is waivable, expressly or impliedly 3. The right to object to testimony of a wife on information obtained because of her domestic relations with her husband 4. The right of the accused to be helped by counsel

10 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA 5. The venue of the actions

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom, or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. Repeal – legislative act of abrogating through a subsequent law the effects of a previous statute or portions thereof. May be either express or implied. In general, the sources of law are given in this Article, and in order of preference, they are: 1. 2. 3. 4. 5.

the Constitution laws (or presidential decrees) administrative or executive acts orders, and regulations

How Laws are Repealed? 1. 2.

expressly impliedly

Rule for General and Special Law 1. if the general law was enacted prior to the special law, the latter is considered the exception to the general law 2. if the general law was enacted after the special law, the special law remains unless: a. there is an express declaration to the contrary b. there is a clear, necessary and unreconcilable conflict c. or unless the subsequent general law covers the whole subject and is clearly intended to replace the special law on the matter

11 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Laws may lapse without the necessity of any repeal as exemplified by the law granting the President, Emergency Powers. Problem: Wolverine committed an offense, but before the time of trial, the offense was no longer considered an offense by the law. Should Wolverine be punished? Answer: It depends. a. if there has been a complete repeal, he should not be punished anymore b. it is otherwise if the law merely lapsed, like example the Import Control Law Effect if the Repealing Law is Itself Repealed 1.

When a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be thereby revived, unless expressly so provided

2.

When the law which repeals a prior law, not expressly but by implication, it itself repealed, the repeal of the repealing law revives the prior law, unless the language the repealing statutes provides otherwise.

of

Disuse, custom, or practice to the contrary does not repeal a law. A mistake in the law or in legislation cannot be corrected by executive fit but by another legislation. Unconstitutional Laws, Treaties, Administrative or Executive Order Rule under the 1935 Constitution – Eight (8) out of eleven (11) Justices must declare the unconstitutionality of law or treaty. A simple majority of six (6) would suffice to declare an executive or administrative order unconstitutional. Rule under the 1973 Constitution – The Supreme Court shall be composed of a Chief Justice and fourteen (14) Associate Justices. It may sit en banc or in two divisions. Cases involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en banc, and may be declared unconstituional only upon the concurrence of at least ten (10) members. All other cases, which under its rules are required to be heard en banc, shall be decided with the concurrence of at least eight (8) members. Cases heard by a division shall be decided with the concurrence of at least five (5) members but if such required number is not obtained, the case shall be decided en banc.

12 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Rule Under the 1987 Constitution The Supreme Court shall be composed of a Chief Justice and fourteen (14) Associate Justices. All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, an all other cases which under Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such members. When the required number is not obtained, the case shall be decided en banc. Some Grounds for declaring a Law Unconstitutional 1. The enactment of the law may not be within the legislative powers of the lawmaking body 2. Arbitrary methods may have been established 3. The purpose or effect violates the Constitution or its basic principles

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.

Judicial decisions although in themselves not laws, assume the same authority as the statute itself. If he courts would be allowed to legislate, it would be contrary to the principle of the separation of power. Constitute evidence of what the law means.

13 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Legis interpretatio legis vim obtinet - interpretation placed upon the written law by a competent court has the force of law. Only the decisions of the Supreme Court, and unreversed decisions of the Court of Appeals on cases of first impression, establish jurisprudence or doctrines in the Philippines. Doctrine of Stare Decisis – it means “adherence to precedents.” Once the case has been decided one way, then another case, involving the same point at issue, should be decided in the same manner. Obiter Dicta – are opinions not necessary to the determination of a case. They are not binding, and cannot have the force of judicial precedents. How Judicial Decisions May Be Abrogated 1. By contrary ruling by the Supreme Court itself 2. By corrective legislative acts of Congress The opinions of the Secretary of Justice although not law, should be given a great weight. Judicial review of the decision of an administrative official is subject to certain guideposts. E.g. questions of facts vs. question of laws When Final Judgment May Be Changed 1. judgment void for lack of jurisdiction over the subject matter 2. when facts and circumstances transpire which render its execution impossible or unjust, the interested party may ask the court to modify or alter the judgment to harmonize the same with justice and with facts

Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. 

Ninguno non deue enriquecerse tortizeramente con dano de otro – When

14 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA the statutes are silent or ambiguous, this is one of those fundamental principles which the courts invoke in order to arrive at a solution that would respond to the vehement urge of conscience. A judge must give decision, whether he knows what law to apply or not. The judge may apply any rule he desires as long as the rule chosen is in harmony with general interest, order, morals, and public policy. Among such rules may be the following: • • • • •

customs which are not contrary to law, public order, and public policy decisions of foreign and local courts on similar cases opinions of highly qualified writers and professors rules of statutory construction principles laid down in analogous instances

The Supreme Court basically is a review court.

Art. 10. In case of doubt in the interpretation and application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

Dura Lex Sed Lex – the law may be hard, but it is still the law.” Hence, the first duty of the judge is to apply of the law – whether it be wise or not, whether just or unjust – provided that the law is clear, and there is no doubt. Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them. In case of doubt, the judge should presume that “the lawmaking body intended right and justice to prevail.” “We should interpret not by the letter that killeth, but by the spirit that giveth life.” (Cayetano v. Monsod)

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Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced. Custom – a rule of human action (conduct) established by repeated acts, and uniformly observed or practiced as a rule society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding. Requisites Before the Courts Can Consider Customs 1. A custom must be proved as a fact, according to the rules of evidence 2. The custom must not be contrary to law, public order, or public policy 3. There must be a number of repeated acts 4. The repeated acts must have been uniformly performed 5. There must be a juridical intention to make rule of social conduct 6. There must be a sufficient lapse of time Law Distinguished from Custom While ordinarily a law is written, consciously made, and enacted by Congress, a custom is unwritten, spontaneous, and comes from society.

Art. 12. A custom must be proved as a fact, according to the rules of evidence.

Custom – rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory. Kinds of Customs

16 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA 1. a general custom is that of a country 2. a custom may be propter legem (in accordance with law) or contra legem (against the law) Juridical custom – can supplement statutory law or applied in the absence of such statute. Social custom – can’t supplement stat law or applied in the absence of statute. Custom, even if proven, cannot prevail over a statutory rule or even a legal rule enunciated by the SC

Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are of 365 days each; months, of 30 days; days, of 24 hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included. year – 365 days month – 30 days day – 24 hours night – from sunset to sunrise If the month is designated by its name, it shall be computed by the number of days it has. In computing the period, the first day shall be excluded, and the last day included. In an ordinary contract, the general rule is that an act is due even if the last day be Sunday or a legal holiday. When then time refers to a period prescribed or allowed by the Rules of Court, by an order of the Court, or by any applicable statute, if the last day is Sunday or a legal

17 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA holiday, it is understood that the last day is should really be the next day, provided said day is neither a Sunday nor a legal holiday. If the extra day in a leap year is not a day of the year, because it is the 366 th day, then to what year does it belong? Certainly, it must belong to the year where it falls and, therefore, the 366 days constitute one year.

Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations.

General rule: We adhere in the Philippines to that doctrine in criminal law known as the theory of territoriality. Therefore any person, whether citizen or alien, can be punished for committing a crime here. Thus the technical term generality came into being; it means that even aliens, male or female come under our territorial jurisdiction. Exceptions: 1. principles of public international law 2. the presence of treaty stipulations Citizens and foreigners are subject to all penal laws. Will even attach regardless whether or not a foreigner is merely sojourning in Phil territory BUT they may however be immune from suit, and therefore, cannot be criminally prosecuted in the Philippines in certain cases where the Philippine government has waived its criminal jurisdiction over them on the basis of the principles of public international law and treaty stipulations 1961 Vienna Convention on Diplomatic Relations – provided that the person of the diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or detention. He shall enjoy immunity from criminal jurisdiction of the receiving state.

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Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Status – sum total of a person’s rights, duties, and capacities. Article 15 stresses the principle of nationality. It refers to: 1. 2. 3. 4.

family rights and duties status condition legal capacity

The capacity to enter into an ordinary contract is governed by the national law of the place where the contract was entered into. Capacity to enter into other relations or contracts is not necessarily governed by the national law of the person concerned: 1. Capacity to acquire, encumber, assign, donate or sell property depends on the law of the place where the property is situated (lex situs or lex rei sitae) 2. Capacity to inherit depends not on the national law of the heir, but on the national law of the decedent 3. Capacity to get married depends not on the national law of the parties, but on the law of the place where the marriage was entered into (lex celebrationis or locus regit actum), subject to certain exceptions.

Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

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Property, whether real or personal, is as a rule governed by the lex rei sitae (law of the place where the property is situated). Under our present laws, only corporate income derived from Philippine sources may be taxed in our country. Exception to the Lex Situs Rule One important exception to the lex situs rule occurs in the case of successional rights: 1. 2. 3. 4.

order of succession amount of successional rights intrinsic validity of the provisions of a will capacity to succeed

The Renvoi Problem Renvoi – literally means a referring back; the problem arises when there is a doubt as to whether a reference in our law to a foreign law – (a) is a reference to the internal law of said foreign law; or (b) is a reference to the whole of the foreign law, including its conflicts rules.

Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

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First Par: Doctrine Lex Loci Celebrationis The first paragraph of the Article lays down the rule of lex loci celebrationis insofar as extrinsic validity (forms and solemnities) is concerned. Thus, a contract entered into by a Filipino in Japan will be governed by Japanese law insofar as form and solemnities of the contract are concerned. Formalities for the acquisition, encumbering and alienation of property (whether real or personal) shall however, be governed not by the lex loci celebrionis but by lex rei sitae. Second Par: Rule of Exterritoriality Diplomatic and consular officials are representatives of the state, therefore Philippine law should prevail if act is executed before a diplomat, in a foreign country. (basis: by rules of international law, host country where diplomat is assigned, waives its jurisdiction over the premises of the diplomatic office of another country located in the said host country). The theory is that the act is being done within an extension of Philippine territory. Third Par: Rule Respecting Prohibitive Laws The third paragraph gives one exception to the rule that a foreign law, contract, or judgment can be given effect. The reason is that public policy, public order, or good customs in the Philippines prohibits the same . e.g. an absolute divorce, a contract for the sale of human flesh (prostitution). Intrinsic Validity of Contracts The prevailing rule in Private International Law today is to consider the lex loci voluntatis (the law of the place voluntarily selected) or the lex loci intentionis (the law of the place intended by the parties to the contract).

Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.

21 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA General Rule: In case of conflict with the Code of Commerce or special laws, the Civil Code shall only be suppletory, except if otherwise provided for under the Civil Code. Exceptions: There are instances when the Civil Code expressly declares itself superior to special laws: (a) Common carriers – the Code of Commerce supplies the deficiency (b) Insolvency – the special laws supply the deficiency The Rule in Statutory Construction: special law governs over the general law in case of conflict.

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CHAPTER 2 HUMAN RELATIONS

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Reason for the Chapter: A chapter on Human Relations was formulated to present some basic principles that are to be observed for the rightful relationship between human beings and the stability of the social order. The lawmakers make it imperative that everyone duly respect the rights of others. Stress of the Article This Article stresses: 1. Acting with justice 2. Giving to everyone his due 3. Observance of honesty and good faith Thus, rights must never be abused; the moment they are abused, they cease to be rights Acting with Justice Art. 20 – indemnification of another due to illegal acts Art. 21 – indemnification due to immoral acts Art. 24 – unfair competition Art. 22 – unjust enrichment Observance of Honesty and Good Faith Art. 26 – respect for the personality and dignity of others Art. 25 – restraint of undue extravagance Art. 31 – independent civil actions

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Honesty – careful regard for other’s rights and property Good Faith – honest intention to avoid undue advantage of another Bad faith does not simply connote bad judgment or negligence; it imparts a dishonest purpose or some moral obliquity and conscious doing of wrong.

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Willful or Negligent Acts The article punishes illegal acts whether done willfully or negligently. Thus, in the law of torts or quasi-delicts – “whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.” Negligence – the failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstances greatly demand, whereby such other person suffers injury. Tort Art. 20 introduces a broader concept of torts in our country, for it embraces: (a) the Spanish tort – based on negligence; (b) and the American tort – based on malice.

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Art. 21 was intended to fill in the countless gaps of the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury.

24 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Deals with acts contra bonus mores . Article 21 Distinguished from Article 20 1. In Art. 21 – the act is contrary to morals, good customs, or public policy. In Art. 20 – The act is contrary to law. 3. In Art. 21 – the act is done willfully In Art. 20 – the act is done either willfully or negligently. e.g. A student willfully humiliates a professor, causing her to have a nervous breakdown. This would be contrary to good customs and morals, and the professor can sue for damages.

Art. 22. Every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

Duty in return What Was Acquired Unjustly or Illegally No person should unjustly enrich himself at then expense of another. Accion in rem verso – get back what he had intentionally (but unwillingly) paid. Essential Requisites of an “Accion in Rem Verso” 1. One party must be enriched and the other made poorer 2. There must be a casual relation between the two 3. The enrichment must not be justifiable 4. There must be no other way to recover (so if, for example, a tort or quasi-contract action is proper, it is not necessary to file a claim in rem verso)

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5. The indemnity cannot exceed the loss or enrichment, whichever is less.

Art. 23. Even when an act or event causing damage to another’s property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited.

Duty to indemnify even if the event causing damage was not due to the fault or negligence of the defendant, but because he received e.g. Without Wolverine’s knowledge, a flood drives his cattle to the cultivated highland of Cyclops. Wolverine’s cattle are saved, but Cyclop’s crops are destroyed. True, Wolverine was not at fault, but he was benefited. It is but right and equitable that he should indemnify Cyclops.

Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.

Reason for the Court’s Protection of the Underdog The law takes a great interest in the welfare of the weak and the handicapped. Thus, we have “parens patria”. Parens Patria – literally means “father or parent of his country.” The phrase refers to the sovereign power of the state in safeguarding the rights of person under disability, such as the insane and the incompetent. The State as parens patriae is under the obligation to minimize the risk to those who because of their minority, are yet to take care of themselves.

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Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. Reason for Curtailing Thoughtless Extravagance Thoughtless extravagance during emergencies may incite the passions of those who cannot afford to spend. Only a charitable institution (whether government or private) may bring the action.

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The ff. and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: 1. Prying into the privacy of another’s residence 2. Meddling with or disturbing the private life or family relations of another 3. Intriguing to cause another to be alienated from his friends 4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. Duty to Respect Dignity and Privacy This Article enhances human dignity and personality. equality, but due regard for decency and propriety. Remedies

This is not to sought social

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1. action for damages 2. an action for prevention 3. any other relief (1)

prying into the privacy of another’s residence – includes by implication respect for another’s name, picture, or personality except insofar as is needed for publication of information and pictures of legitimate news value.

(2)

Meddling with or disturbing the private life or family relations of another – includes alienation of the affections of the husband or the wife; intriguing against another’s honor (gossiping, and reliance on hearsay.

(3)

Intriguing to cause another to be alienated from his friends – includes gossiping, and reliance on hearsay.

(4)

Vexing or humiliating – includes criticism of one’s health or features without justifiable legal cause.

Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

Refusal or neglect in the Performance of Official Duty The purpose of Art. 27 is to end the bribery system, where the public official for some flimsy excuse, delays or refuses the performance of his duty until he gets some kind of “pabagsak.” Three kinds of bribes: 1. Pabagsak – gift given so that an illegal thing may be done. 2. Pampadulas – gift given to facilitate the doing of a legal thing.

28 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA 3. pampasalamat – gift given in appreciation of a thing already done.

Art. 28. Unfair competition in agricultural, commercial or industrial enterprises, or in labor, through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.

Reason for Preventing Unfair Competition The provision is necessary in a system of free enterprise. Democracy becomes veritable mockery if any person or group of persons by any unjust or high-handed method may deprive others of a fair chance to engage in business or to earn a living. While competition is necessary in a free enterprise, it must not be unfair. Scope: The Article speaks of unfair competition in: 1. agricultural enterprise 2. commercial enterprises 3. industrial enterprises 4. labor e.g. 1. strike for trivial, unjust, or unreasonable cause 2. a strike carried out through force, intimidation or other unlawful means 3. cutthroat competition (where one is ready to losa if only to drive somebody else out of business)

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4. selling the goods above the maximum prices set by the State

Art. 29. When the accused in criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. (2) If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground.

Criminal and Civil Liabilities Under the Revised Penal Code (Art. 100) a person criminally liable is also civilly liable. The two liabilities are separate and distinct from each other; the criminal aspect affects the social order; the civil, private rights. One is for the punishment of the offender; while the other is for reparation of damages suffered by the aggrieved party. Thus, even if the accused be acquitted because of prescription of the crime, he is released only from criminal liability, not civil liability; otherwise, the victim would be prejudiced Reason for Art. 29 Criminal liability is harder to prove than civil liability because the former demands proof of guilt beyond reasonable doubt; the other mere preponderance of evidence. Now then if criminal conviction is not obtained because of reasonable doubt, there is still a chance that the civil liability can be held to exist because of preponderance of evidence. Proof beyond Reasonable Doubt – amount of proof which forms an abiding moral certainty that the accused committed the crime charged. NOT absolute certainty, BUT

30 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA such degree of proof is more exacting than what is needed in a civil case, which is: Preponderance of Evidence – as a whole, evidence adduced by one side outweighs that of the adverse party. Survival of the civil liability depends on whether the same can be predicated on sources of obligations other than delict.

Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of. Civil Liability Arising from an Unprosecuted Criminal Offense (Example) Wolverine accused Cyclops of stealing his (Wolverine’s) watch, and so He (Wolverine) brought a civil action against Cyclops to get the watch and damages. If the fiscal institutes criminal proceedings against Cyclops the civil case is suspended in the meantime (Rule 110, Revised Rules of Court), this case not being one of those for which there can be an independent civil action. But if the case Quantum of evidence still merely preponderance of evidence, even if the civil action arose from a criminal offense

Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. Independent Civil Action – is one that is bought distinctly and separately from a criminal case allowed for considerations of public policy, because the proof needed for civil cases is LESS than that required for criminal cases; but with the injunction in general that in financially recovering in one case should not prevent a recovery of a damages in the other.

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Instances When the Law Grants an Independent Civil Action Art. 32 – (breach of constitutional and other rights) Art. 33 – (defamation, fraud, physical injuries) Art.34 – (refusal or failure of city or municipality police to give protection) Art. 2177 – (quasi-delict or culpa aquiliana) Scope of Art. 31 (Obligation Not Arising from a Crime) It contemplates a case where the obligation does not arise from a crime, but from some other act – like a contract or a legal duty. Examples A civil action fro recovery of government funds in the hands of a postmaster can prosper independently of a charge of malversation, since in the first, the obligation arises from law (ex lege), while in the second the obligation to return the money arises ex delicto.

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: 1. Freedom of Religion 2. Freedom of Speech 3. Freedom to write for he press or to maintain a periodical publication 4. Freedom from arbitrary or illegal detention 5. Freedom from suffrage 6. The right against deprivation of property without due process of law 7. The right to a just compensation when private property is taken for public use 8. The right to equal protection of the laws 9. The right to be secure in one’s person, house, papers, and effects against unreasonable searches and seizures

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10.The liberty of abode and of changing the same 11.The privacy of communication and correspondence 12.The right to become a member of associations or societies for purposes not contrary to law 13.The right to take part in a peaceable assembly to petition the government for redress of grievances 14.The right to be free from involuntary servitude of any form 15.The right of the accused against excessive bail 16.The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf. 17.Freedom from being compelled to be a witness against one’s self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a state witness 18.Freedom from excessive fines, or cruel or unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional and 19.Freedom of access to the courts In any of the cases referred to in this article, whether or not the defendant’s act or omission constitute a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently or any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Implementation of Constitutional Civil Liabilities

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The civil liberties guaranteed by the Constitution need implementation, hence the necessity for Art. 32. Additional rights • •

Freedom of suffrage. Freedom from being force to confess guilt xxxx

Scope The following can be made liable: 1. Any public officer or employee. 2. Any private individual even if he is in good faith. Remedies The Article allows am independent civil action, whether or nor a crime has been committed, with indemnification for moral and exemplary damages in addition to other damages. In the case of exemplary damages, award thereof is discretionary with the Court. Defendant in an Independent Civil Action to Safeguard Civil Liberties The defendant is not the state, but the public officer involved. Hence, the consent of the state is not required. Where the State or its government enters into contract, action may be brought in the event of breach of contract. The State may be sued even without its consent. The reason is that by entering into a contract, the sovereign state has descended to the level of the citizen, and its consent to be sued is implied from the very act of entering into such contract.

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

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Independent Civil Action for defamation, fraud, and Fraud Injuries Art. 33 speaks of: • Defamation (libel, slander or intrigue against honor) • Fraud (or estafa or swindling) • Physical injuries including consummated, frustrated and attempted homicide. New Concept of Tort Two kinds of torts in the Phils: The American concept of tort (which is done maliciously or intentionally). The Spanish concept of tort (culpa aquiliana or quasi-delict, which is based on negligence). Is there any necessity of reserving the civil aspect of the criminal case The independent civil action of damages arising from physuical injuries under Art. 33 may be brought by the offended party even if he had not reserved the right to file the same in the criminal case for the same injuries. Two different courts may at the same time try the same accident, one from the criminal standpoint, the other from the standpoint of Art. 33. The result of the criminal case, whether acquittal or conviction, would be in such a case, entirely irrelevant to the civil action.

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefore. The civil action herein recognized shall be independent of any criminal proceedings and a preponderance of evidence shall suffice to support such action. Independent Civil Action for the Liability of City or Municipal Police Force

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Primarily liability is assessed against the member of the police force who refuses or fails to render aid or protection.

•

Subsidiary liability is imposed on the city or municipality concerned in case of insolvency.

Does the Article Apply to the Philippine National Police (PNP) Force and to National Government? Since Art. 34 speaks merely of a city or municipal police force, it would seem that the answer is in negative.

Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action shall be supported by preponderance of evidence. On the defendant’s motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. (2)If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. Rule if No Independent Civil Action is Granted This Article applies to cases when there is no independent civil action (such as when the liability sought to be recovered arises from a crime); and not to a tortious action such as that provided from under Art 33.

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Art. 36. Prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by the rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. Prejudicial Question – is one which must be decided first before a criminal action may be instituted or may proceed because a decision therein is vital to the judgment in the criminal case. Two essential elements of a prejudicial question 1. The civil action involved an issue similar or intimately related to the issue raised in the criminal action 2. The resolution of such issue determined whether or not the criminal action may proceed.

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Book I – PERSONS Title I. CIVIL PERSONALITY CHAPTER 1 GENERAL PROVISIONS

Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person, and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. Person – any being, natural or artificial, capable of possession legal rights and obligations. Two Kinds of Persons 1. Natural Persons – human beings created by God through the intervention of the parents 2. Juridical Persons – those created by law Differences 1. Juridical Capacity – the fitness to be the subject of legal relations 2. Capacity to Act – the power to do acts with legal effect.

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Juridical Capacity (a) Passive

Capacity to Act (a) Active

(b) Inherent

(b) Merely acquired

(c) Lost only through death

(c) Lost through death and may be restricted by other causes

(d) Can exist without capacity to act (d) Exists always capacity

with

juridical

Full or Complete Civil Capacity – the union of the two kinds of capacity. Example of the Use of the Terms A 1 yr. old boy has juridical capacity but has no capacity to act. When he becomes 18, he will have full civil capacity. A person is presumed to have a capacity to act.

Art. 38. Minority, insanity or imbecility, the state of being deaf-mute, prodigality and civil interdiction are mere restrictions on the capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. Restrictions on Capacity to Act (a) minority (below 18) (b) insanity or imbecility (c) state of being a deaf-mute (d) prodigality

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(e) civil interdiction Minority (below 18) Generally, a minor needs parental consent before he can enter into an ordinary contract. If he goes ahead without such consent, the contract is not void but merely voidable: that is, valid annulled. Incidentally, it wrong to say that a minor has NO capacity to act; he has, but his capacity is RESTRICTED. Insanity or imbecility Insanity – is a condition in which a person’s mind is sick. Imbecility – is a condition in which a person thinks like a child. Is a person is under guardianship because of insanity, he is of course presumed insane if he should enter into a contract. But this presumption is only prima facie or rebuttable. If it can be shown that he was acting during a lucid interval, the contract will be considered valid. State of being deaf-mute A deaf-mute may either be sane or insane. If sane, prescription may run against him. He may make a will but cannot be a competent witness to a notarial will. Prodigality It is a state of squandering money or property with a morbid desire to prejudice the heirs of a person. Civil interdiction It is the deprivation by the court of a person’s right: 1) To have parental or marital authority. 2) To be the guardian of the person and property of a ward. 3) To dispose of his property by an act inter vivos (he cannot donate, for this is an act inter-vivos; but he can make a will, for this is a disposition mortis causa. 4) To manage his own property. Note: the penalty of civil interdiction is given to criminal punished by imprisonment for 12 years and 1 day or more.

40 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Effect in general of the restrictions: The restriction in Art. 38 do not extinguish capacity to act. They merely restrict or limit the same. Thus an insane person’s contract is merely voidable, not void. The incapacitated person is not exempt from certain obligation arising from his acts. Example: If he commits a crime, his property may still be liable.

Art. 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances re governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, 21 years of age or over, is qualified for all acts of civil life, except in cases specified by law. Modifications or Limitations on Capacity to Act. Art. 38 – Refers to restrictions on capacity to act. Art. 39 – Includes not only the restrictions or limitations but also those circumstances that modify capacity to act, like family relation and alienage. Family Relations A man cannot marry his mother, or sister, or even a first cousin. The fact a man is the father of a family creates an obligation to give support to his family and to give his children their legitime. Alienage An alien cannot generally acquire private or public agricultural lands, including those residential in nature except thru hereditary succession. Absence The fact that one has been absent for several years and his whereabouts cannot be determined, subjects his property to administration by order of the court although his capacity to is not limited.

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Married Woman A married woman, eighteen years of age or over, is qualified for all acts of civil life, except in cases specified by law. If the married woman be under 21, she is considered a married minor. She therefore cannot dispose of or encumber her own real property without parental consent. Bar Answer Under Art. 2259 which provides that the capacity of a married woman to execute acts and contract is governed by the new civil Code, even if her marriage was celebrated under the former laws.

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CHAPTER 2 NATURAL PERSONS

Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article Beginning of Personality Personality does not begin at birth; it begins at conception. conception is called presumptive personality.

This personality at

Rule in Case of Abortive Infants If a physician operates on a pregnant woman and succeeds in aborting the foetus, the parents would normally be entitled only to: Moral damages (distress, disappointment of parental expectation); Exemplary damages, if warranted But NOT to actual damages (injury to rights of the deceases, his right to life and physical integrity) for the death of a person, does NOT cover the case of an unborn foetus, since this is not endowed with personality. And even the moral damages cannot be recovered by the husband of a woman (who voluntarily sought the abortion) from the physician if the husband took no steps to investigate the causes of the abortion.

Art. 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the foetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

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Two Kinds of Children (a) Ordinary – with an intra-uterine life of at least seven months. (mere birth is sufficient here.) (b) Extraordinary – if the intra-uterine life be less than seven months. (here the child must live at least 24 hours after its complete delivery from the maternal womb.) For Beneficial Civil Purposes Foetus is considered born only for civil purposes (Art. 41) which are beneficial (Art.40) Therefore, a conceived child, thru mother, may be the recipient of a donation; but if the donation be onerous or should be prove burdensome, the donation will not be considered valid. A conceived child can be acknowledged even before it is born. It is also already entitled to be supported. Requirement of human form eliminated because it has been proved by medical science that no monster can be born of human being.

Art. 42. Civil Personality is extinguished by death. The effect upon the rights and obligations of the deceased is determined by law, by contract and by will. How Civil Personality is Extinguished • •

Civil personality is extinguished by death (physical death). Civil interdiction (civil death) merely restrict, not extinguishes, capacity to act.

Effect of Physical Death Effect of death is determined by: (a) Law (b) Contract

44 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA (c) Will Examples of Determination by Laws If the person be made a voluntary heir in the will of another and he dies before the testator, he cannot be represented by his own heir. Other legal effect of death: (a) The right to support ends (b) A marriage, whether voidable or valid, also ends (c) The tenure of public office ends (d) If an individual dies, the property or estate left by him should be subject to the tax in generally the same manner as if he were alive (e) If a person dies after he has authorized another to sell the former’s property, the sale after such death is not valid, if made by the agent with knowledge of the principal’s death. This is true even if the buyer be in good faith. Is a Person’s “Estate” a Person by Itself? It has been held that the “estate” of a deceased is a person that may continue the personality of the deceased even after death – for the purpose of settling debts. Service of Summons on the Dead His juridical capacity was lost the moment he died.

Art. 43. If there is doubt, as between 2 or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.

Presumptions on Survivorship Under the Revised Rules of Court

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When two persons perish in the same calamity and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probability resulting from the strength and age of the sexes, according to the following rules: (a) If both were under the age of 15 yrs, the older is presumed to have survived; (b) If both were above 60, the younger is presumed to have survived; (c) If one be under 15 and the other above 60, the former is presumed to have survived; (d) If both be over 15 and under 60, and the sexes be different, the male is presumed to have survives; if the sexes is the same, then the older; (e) If one be under 15 or over 60, and the other between those ages, the latter is presumed to have survived.

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CHAPTER 2 JURIDICAL PERSONS

Art. 44. The ff. are juridical persons: 1. The state and its political subdivisions 2. Other corporations, institutions and entities for public interest or purpose, created by law, their personality begins as soon as they have been constituted according to law 3. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Classification of Juridical Persons (a) Public juridical person (b) Private juridical person Public Juridical Persons (a) Public corporations like the province and the city (b) The state itself Private Juridical Persons (a) Private corporation (b) Partnership When Personality of Private Juridical Persons Begins

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A private corporation begins to exist as a juridical person from the moment a certificate of incorporation is granted to it. The certificate is issued upon filing the articles of incorporation with the SEC. Juridical personality is not a matter of absolute right but a privilege which may be enjoyed only under such terms as the State may deem necessary to impose.

Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or organizing them. Private corporations are regulated by laws of general application on the subject. Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships (36 and 37a) Determination of Nationality of Juridical Persons The nationality of a corporation is generally determined by the place of its incorporation. Two exceptions may for certain purposes, be made to this rule, namely: (a) For the grant for the rights in the Constitution to the operation of public utilities, and for the acquisition of land and other natural resources, a corporation, even if incorporated here, cannot acquire said rights unless 60% of its capital be Philippine-owned. (b) During war, we may pierce the veil of corporate identity, and go to the very nationality of the controlling stockholders regardless of where the incorporation had been made. A contrary rule may endanger Philippine security. Even if a foreign corporation is not doing business in the Philippines, and even not licensed, it may sue here in our country.

Art. 46. Juridical persons may acquire and possess property of all kinds, as well s incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of the organization.

48 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Rights of Juridical Persons (a) To acquire and possess property of all kinds (b) To incur obligations (c) To bring civil or criminal actions May a Corporation Form a Partnership? No, because the relationship of trust and confidence which is found on a partnership, is absent in corporation. •

A religious corporation which is not controlled by Filipinos cannot acquire lands, otherwise alien religious landholding in this country would be revived. But the Roman Catholic Church in the Philippines can acquire land because the Catholic Church in any country, lawfully incorporated in said country, is an entity or person separate and distinct from the personality of the Pope or of the Holy See.

•

An American citizen, under the Parity Amendment, can acquire lands in the Philippines, exploit our natural resources, and operate public utilities, only if in his particular state in the United States, Filipinos are granted RECIPROCAL parity right.

•

Under RA 1180, person not citizens of the Philippines: associations, partnership, or corporations the capital of which are not owned wholly by citizens of the Philippines, are prohibited from engaging in the retail trade directly or indirectly.

•

A Non-Existent Corporation Cannot Sue

•

A Non-Existent Partnership Cannot Sue

•

Is a partnership does not lawfully exist, it cannot sue, but it may be sued, otherwise third persons may be prejudiced.

•

An Unregistered Labor Organization Cannot Sue

•

An admission or representation is rendered conclusive by the person making it, he cannot denied or disproved it against a person relying on it (through estoppel)

•

A person who contracts with a “corporation” cannot later deny its personality.

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•

Even is a corporation has been dissolved, it can still continue prosecuting (as plaintiff) or defending (as defendant) for the next three years, thru its legal counsel, who may be considered a “trustee” for this purpose.

Art. 47. Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of Art 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same. Rule if Public Juridical Persons are Dissolved This Article refers to public corporations or associations. distributed: (a) apply the provision of law or charter creating them

How assets are to be

(b) if there is no such provision, the assets will be for the benefit of the place which was already receiving the principal benefits during the existence of the corporation or association.

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Title II. CITIZENSHIP AND DOMICILE INTRODUCTORY COMMENTS Citizenship and Nationality Citizenship – is the status of being a citizen, or owing allegiance to a certain state for the privilege of being under its protection. It is political in character Nationality - refers to a racial & ethnic relationship. In Civil Law and Private International Law, the two possessed of the same meaning. Thus, when we say that successional rights depend on the national law of the deceased, we really refers to the law of the country of which he was a citizen at the moment of death. Three Kinds of Citizens (a) Natural-born citizen – those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. (b) Naturalized citizens – citizens who become such through judicial proceedings. (c) Citizen by election – citizens who become such by exercising the option to elect a particular citizenship, usually within a reasonable time after reaching the age of majority. Two Theories on Whether Place or Ancestry Determines Citizenship

51 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA (a) Jus soli – if born in a country, a person is a citizen of the same (not applicable in the Phils.) (b) Jus sanguinis – one follows the citizenship of his parents; this is citizenship by blood. (applied in the Phils.) Q: Does dual or multiple nationality exist? A: It depends: a) from the viewpoint of the countries directly involved, it does not exist (ordinarily); b) but from the viewpoint of the third states, it does exist Q: The deceased was both a Chinese and a Japanese. He died in Manila. Prior his death, he was domiciled in Japan. A: Japanese law, obviously is preferred over Chinese law, for the domicile was also in Japan. In a case like this, it has been said that the domiciliary theory runs to the rescue of the nationality theory. This is the theory of effective nationality. Q: A testator, both a Cuban and Algerian in citizenship was domiciled at the moment of his death in Italy. He died in Alaska, leaving properties in the Philippines. How should the Philippine court dispose of the successional rights to his estate? A: 1) first, get the Cuban and Algerian aws on succession, and apply them as they are consistent with or identical to each other; 2) secondly, in so far as there is conflict, we must apply the law of Italy, the law of domicile, to resolve the conflict. Various ways in which this dual or multiple citizenship might arise (a) through marriage (b) through a naturalized citizen's failure to comply with certain legal requirements in the country of origin (c) from combined application of jus soli and jus sanguinis

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(d) by legislative act of states (e) by voluntary act of the individual concerned How statelessness is brought about (a) he may have been deprived of his citizenship (b) he may have renounced his nationality (c) he may have voluntarily asked for release from his original state (d) he may have been born in a country which recognizes only the principle of jus sanguinis The Rule that shall govern of stateless individuals The Hague Conference of 1928 on International Private Law suggested that the personal law of the stateless individuals shall be: 1) the law of the domicile (habitual residence); or 2) secondarily, the law of the place of temporary residence Q: Suppose the individual had no nationality or citizenship, what should apply. A: It is the law of the domicile. Citizenship of a Filipino Woman Who Marries a Foreigner (a) Rule prior to the 1973 Constitution: if she acquired his nationality; she lost Philippine citizenship (b) Rule under the 1973 Constitution: she shall retain her Philippine citizenship, unless by her act or omission she is deemed, under the law, to have renounced her citizenship. Citizenship of a Foreign Woman Who Marries a Filipino (a) Rule prior to the Moy Ya Case: if she has the qualifications and none of the

53 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA disqualifications for Philippine citizenship, she becomes a Filipino. It also applies to the wife of naturalized Filipino. She does not however, ipso facto, becomes one. She has to file a petition for citizenship (b) Rules after the Moy Ya Case: the alien woman marrying a Filipino, native-born or naturalized is ipso facto a Filipino, provided she is not disqualified to be a citizen of the Philippines. She does not have to prove that she possesses all the qualifications and none of the disqualifications

Art. 48. The following are citizens of the Philippines 1. Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines 2. Those born in the Philippines of foreign parents who, before the adoption of said Constitution, had been elected to public office in the Philippines 3. Those whose fathers are citizens of the Philippines 4. Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship 5. Those who are naturalized in accordance with law. Citizens of the Philippines under the 1973 Constitution (a) Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines (b) Those whose fathers or mothers are citizens of the Philippines (c) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred thirty five (d) Those who are naturalized in accordance with law. Citizens of the Philippines under the 1987 Constitution (a) Those who were citizens of the Philippines at the time of the adoption of the

54 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Constitution of the Philippines (b) Those whose fathers or mothers are citizens of the Philippines (c) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority (d) Those who are naturalized in accordance with law.

Art. 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws. Naturalization – is the process of acquiring the citizenship of another country. Attributes of Naturalization (a) Citizenship is not a right, it is privilege. It is granted to certain aliens under certain conditions (b) The requisite conditions for naturalization are laid down by Congress; courts cannot change or modify them (c) Only foreigners may be naturalized (d) Naturalization be revoked, by the cancellation of the certificate of naturalization (e) Naturalization demands allegiance to our Constitution, laws, and government. Qualifications for Naturalization (a) The petitioner must not be less than 21 years of age (b) He must have at least ten-year continuous residency in the Philippines (c) He must be of good moral character, and believe in the principles underlying the Philippine Constitution (d) He must own real estate in the Philippines worth not less than P5,000, or must

55 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA have lucrative trade, profession, or lawful occupation (e) He must be able to speak and write English or Spanish and any one of the principal Philippine Languages (f) He must have enrolled his minor children of school age in any of the public schools or private schools recognized by the Bureau of Private Schools where Philippine history, government, and civics are taught •

A deaf-mute cannot speak, therefore, he cannot be naturalized.

Steps in Naturalization Proceedings (a) a declaration of intention (b) the petition must be filed (c) the petition will then be heard (d) if the petition is approved, there will be rehearing two years after the promulgation of the judgment (e) taking of oath of allegiance How Citizenship May be Lost in General (a) by substitution of a new nationality (b) by renunciation of citizenship (c) by deprivation (d) by release (voluntary as distinguished from deprivation) (e) by expiration How Citizenship May Be Lost (a) by naturalization in foreign countries (b) by express renunciation of citizenship

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How Philippine Citizenship May be reacquired (1) by naturalization (2) by repatriation (3) by direct act of Congress Repatriation shall be effected by merely taking the necessary oath of allegiance to the Constitution of the Philippines and registration in the proper civil registry. Republic Act 7919, otherwise known as The Alien Social Integration Act of 1995, allows illegal aliens who arrived in the Philippines before June 30, 1992, to apply for permanent residency status. The Republic Act 9139, otherwise known as the Administrative Naturalization Act of 2000 provided for the acquisition of Philippine citizenship for certain aliens by administrative naturalization.

Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. ‘Domicile’ Distinguished from ‘Citizenship’ or ‘Nationality’ Domicile speaks of one’s permanent place of abode in general; on the other hand. Citizenship and nationality indicate ties of allegiance and loyalty. Importance of Knowing Domicile (The Philippine generally adheres to the nationality theory)

(a) Firstly, our own law makes in some cases the law of the domicile as the controlling factor in the solution of conflicts problems rather than the national law of the person involved. This is particularly true in the revocation of wills.

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(b) Secondly, in some codal provisions, both the domiciliary and the nationality theories are used. Definition of Domicile Domicile – relations because:

is that place where a person has certain settled, fixed, legal

(a) it is his domicile of origin (b) it is his constructive domicile or domicile by operation of law (c) it is his domicile of choice The Three Kinds of Domicile

1. Domicile of Origin Acquired by birth

2. Constructive Origin or Domicile by Operation of Law Is given after birth

Applies only to infants

Refers to all those who lack capacity to choose their own domicile due to legal disabilities: infants, married women, idiots and the insane.

Never changes

May change from time to time, depending upon circumstances

Are fixed by law

Are fixed by law

3. Domicile of choice

Is a result of the VOLUNTARY WILL AND ACTION of the PERSON CONCERNED.

Rules for the Domicile of Origin (Domicilium Originis) (a) a legitimate child – is the domicile of choice of his father at the moment of the

58 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA birth (b) an illegitimate child – is the domicile of choice of the mother at the time of the birth of the child. (c) a legitimated child – is the domicile of the father at the time of birth (not the legitimation) of the child. This is because “legitimation shall take effect from the time of child's birth (d) an adopted child – the domicile of the real parent or the parent by consanguinity (e) a foundling ( an abandoned infant whose parents are unknown) – the country where it was found Rules for the Constructive Domicile (Domicilium Necesarium) a) Rules for Infants (a) (b) (c) (d)

If legitimate – the domicile of choice of the father. If illegitimate – the domicile of the mother. If adopted – the domicile of the adopter. If a ward – the domicile of choice of the guardian.

b) Rules for Married Women (a) If the married is VALID – the constructive domicile of a wife is the domicile of her husband. (b) If the married is VOIDABLE – the marriage is regarded as valid until annulled; therefore, prior to annulment it is the domicile of the husband, unless she is permitted under the circumstances to select her own domicile. (c) If the marriage is VOID, it is as if there was no marriage, and the “wife” is not really one. c) Rules for Idiots, Lunatics, and Insane If they are below the age of majority – they are considered infants under the law If they are above the age of majority – (1) they have to follow the domicile of choice of their guardians; (2) if they have no guardians, they have to follow their domicile of choice shortly before they became insane. Rules for Domicile of Choice Domicile of choice – is that which is voluntary chosen by a sui juris – as his more or less permanent home – that to which, whenever he is absent, he intends to return.

59 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Requisites to Acquire a New Domicile of Choice (1) residence or bodily in the new locality (2) an intention to remain there (3) and an intention to abandon the old domicile In other words, there must be an animus non-revertendi and animus manendi. Persons who (because of lack of voluntariness) cannot acquire a new domicile of choice (a) (b) (c) (d) (e)

infants, idiots, lunatics, and the insane (because of legal disability) convict or prisoner those who are involuntarily exiled soldiers public officials and employees, diplomats, and consular officers

Domicile Distinguished from Residence Domicile Residence Denotes a fixed permanent residence to Is used to indicate place of abode whether which when absent, one has the permanent or temporary. intention of returning. A person can have generally only one A person can have several places of residence. domicile. Constitutional and Penal Safeguard on Domicile Art. III, Section 6 of the 1987 Constitution provides that: “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. “

Art. 51. When the law creating or recognizing them, or any other

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provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. Rules for Determining the Domicile of Juridical Persons (a) Get the domicile provided for in the law creating or recognizing them or in their articles of agreement. (b) If not provided for, get the place: 1. Where their legal representation is established. 2. Or where they exercise their principal functions. Domicile of a De Facto Partnership. A defectively organized partnership which the law recognizes as de facto insofar as third persons are concerned, can possess a domicile for purposes of its de facto existence. Domicile of a Corporation with a Head Office and with Branches Where the head office is located.

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THE FAMILY CODE OF THE PHILIPPINES Executive Order 209, July 06, 1987, as amended by Executive Order 227, July 17, 1987 Title I. MARRIAGE CHAPTER I REQUISITES OF MARRIAGE Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a) Characteristics (a) A special contract between parties who, it is emphasized must be a man and a woman (no valid marriage being permissible between the same sexes. (b) A foundation of the family; and (c) An inviolable social institution.

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Some Principles in Marriage (a) (b) (c) (d) (e) (f)

union – physical and spiritual of one man with one woman reciprocal blessings birth (procreation) rearing education of children

Marriage Distinguished from Ordinary Contract Marriage

Ordinary Contract

(a) both a contract and a social institution

(a) Merely a contract

(b) generally, stipulations are fixed by law

(b) stipulations are generally fixed by the parties

(c) can be dissolved only by death or annulment

(c) can be ended by mutual agreement and by other legal causes

Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a)

Art. 3. The formal requisites of marriage are:

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(1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a)

Essential Requisites No. 1 – Legal Capacity of the Contracting Parties The parties must have the necessary age or the necessary consent of parents in certain cases. There must be no impediment caused by a prior existing marriage or by certain relationships by affinity(law) or consanguinity (blood). Essential Requisites No. 2 – Their Consent Freely Given If there vitiated consent, the marriage is not void, it is merely voidable. Formal Requisites No. 1 – Authority of Solemnizing Officer Under the Family Code, even if the solemnizing officer is not authorized, the marriage would be valid if either or both parties believe in good faith in his authority to solemnize the marriage. Formal Requisites No. 2 – Valid Marriage License What is required is the marriage license, not the marriage certificate. In fact, a marriage

64 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA may be proved by oral evidence. Formal Requisites No. 3 – Marriage Ceremony The ceremony must be witnessed by not less than two persons of legal age. Note: Absence of any formal requisites, the marriage is void ab initio, unless one or both of the parties are in good faith.

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of

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death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a) •

The husband and wife are presumed to be validly and legally married and could not be rebutted by a mere denial by the man (or woman of the fact of marriage.

Common-law Marriage – is one where the man and the woman just live together as husband and wife without getting married. Marriage by proxy – one where the other party is merely represented by a delegate or friend. Rules: • •

if performed here in the Philippines, the marriage is void because physical presence of both parties is required under Art. 6 of the Family Code. If performed abroad, ordinarily, is valid if the marriage is valid where it was celebrated.

Art. 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect; (3) Any ship captain or airplane chief only in the case mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32;

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(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a) •

a marriage in articulo mortis between passengers or crew memberes may also be solemnized by a ship captain or an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call.

•

a military commander of a unit shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.

•

Under the Family Code, governors, mayors, and ambassadors are not authorized to perform marriages.

•

Under the Local Government Code, however, mayors are now authorized to perform marriages within their jurisdictions.

Article. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. (57a) Reason for Public Solemnization It is based on the premise that the state takes an active interest in the marriage. Instances Where Public Solemnization is Not Needed (a) marriages in chambers of the Justice or Judge (b) marriages in articulo mortis

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(c) marriages in a remote place (d) when both of the parties request in writing for solemnization in some other place

Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a)

Where Marriage License Should be Issued Marriage license should be issued by the local civil registrar of the municipality where either contracting party habitually resides. Marriages of Exceptional Character (No Marriage License is Required) (a) in articulo mortis (b) in a remote place (c) marriage of people who have previously cohabited for at least five (5) years (d) marriages between pagans or Mohammedans, who live in non-Christian provinces, and who are married in accordance with their customs. •

Religious ratification of a valid marriage does not require a marriage license.

Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a)

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Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: (1) Full name of the contracting party; (2) Place of birth; (3) Age and date of birth; (4) Civil status; (5) If previously married, how, when and where the previous marriage was dissolved or annulled; (6) Present residence and citizenship; (7) Degree of relationship of the contracting parties; (8) Full name, residence and citizenship of the father; (9) Full name, residence and citizenship of the mother; and (10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. The applicants, their parents or guardians shall not be required to

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exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a)

Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally

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appearing before him, be convinced that either or both of them have the required age. (60a) •

The Article sets forth the rules by which the civil registrar shall determine as to whether the parties have the required age for marriage.

Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a) Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a) •

Without the needed consent, the marriage is voidable.

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Art. 15. Any contracting party between the age of twenty-one and twentyfive shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a)

•

if the parents refuse to give the advice and this fact is stated in sworn statement with the Civil Registrar, marriage would of course be still possible.

•

If the parties refuse to obtain parental advice, the marriage license must not be issued till after three months from the end of the 10-day publication. If they marry without the license, the marriage will be null and void.

Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.

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Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n)

•

Marriage is now a requirement. It is implicitly done by a priest, imam or minister, or duly accredited marriage counselor.

Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interest party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order. (64a)

Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage

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license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is those who have no visible means of income or whose income is insufficient for their subsistence a fact established by their affidavit, or by their oath before the local civil registrar. (65a)

Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically canceled at the expiration of the said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. (65a)

Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a) Who Can Issue the Certificate of Legal Capacity? •

Diplomatic officials: ambassador, minister plenipotentiary and envoy extraordinary, resident minister, charge d'affaires

•

Consular Officials: consul-general, consul, vice-consul, consular agent

Art. 22. The marriage certificate, in which the parties shall declare that

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they take each other as husband and wife, shall also state: (1) The full name, sex and age of each contracting party; (2) Their citizenship, religion and habitual residence; (3) The date and precise time of the celebration of the marriage; (4) That the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title; (5) That either or both of the contracting parties have secured the parental consent in appropriate cases; (6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and (7) That the parties have entered into marriage settlement, if any, attaching a copy thereof. (67a)

•

This article deals with the “marriage certificate.” It is not an essential requisite of marriage

•

The best evidence of the existence of a marriage is the marriage certificate--- but it is not the only evidence that can be admitted to prove the existence of a marriage. Testimony of the witnesses may be admitted o this point.

•

Q: A man and a woman lived together as husband and wife for many years, but in the office of the Manila Civil Registry, there was no record that marriage between them had ever been celebrated. Are we to presume that they are married? A: Yes, because of their cohabitation for many years. Moreover, the lack of marriage record in Manila does not rebut the presumption of marriage, for the marriage could have been celebrated elsewhere.

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Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place other than those mentioned in Article 8. (68a) Copies of the Marriage Certificate (a) one for the contracting parties (b) two for the local civil registrar (c) one for the person solemnizing

Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n)

Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n)

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Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) General Rule If valid where celebrated, it is also valid here (lex loci celebritionis doctrine, the law of the place of celebration) The Exceptions (1) those contracted by any party below eighteen (18) years of age even with the consent of parents or guardians (2) those bigamous or polygamous marriages (3) those contracted through mistake of one contracting party as to the identity of the other (4) those subsequent marriages that are void (5) a marriage contracted by any party who, at the time of celebration, was psychologically incapacitated (6) incestuous marriages (between ascendants and descendants; between brothers and sisters, whether of the full or half-blood) (7) marriages void for reasons of public policy •

Q: Wolverine, a citizen of Turkey, is validly married there simultaneously to

77 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA three wives, by each whom he has children. Will the marriage be considered as valid in the Philippines? A: For the purpose of cohabitation in the Philippines, only the first marriage should be considered as valid; but for the purpose of considering legitimacy of children, the marriage are all to be considered as valid. Effect of Divorce of Marriage Between a Filipino Citizen and a Foreigner If validly obtained by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. However, if the foreign divorce is obtained by the Filipino spouse, the divorce is void.

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CHAPTER 2 MARRIAGES EXEMPT FROM THE LICENSE REQUIREMENT

Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a)

Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (72a) •

In a marriage in articulo mortis, while it is advisable that a witness to the marriage should sign the dying party's signature if the latter be physically unable to do so, still if upon order of the solemnizing official, another person should so sign, the marriage is still valid.

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“Danger of death” distinguished from “Point of death:” If a soldier is about to go to war, he may be in danger of death, but not at the point of death; hence, a marriage in articulo mortis would not be applicable to him.

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There is no prescribed minimum or maximum distance in a “marriage in a remote place.”

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Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (72a) •

Failure on the part of the solemnizing officer to execute the necessary affidavit will not invalidate the marriage, for the affidavit is not being required of the parties.

Art. 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (75a)

Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)

Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a)

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Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a)

Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. (76a)

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CHAPTER 3 VOID AND VOIDABLE MARRIAGES

INTRODUCTORY COMMENT Distinctions between a Void and A Voidable Marriage Void

Voidable

(a) can never be ratified

(a) can generally be ratified by free cohabitation

(b) always void

(b) valid until annulled

(c) can be attacked directly or collaterally

(c) cannot be assailed collaterally; there must be a direct proceeding

(d) there is no conjugal partnership (only co-ownership)

(d) there is a conjugal ownership

Two Kinds of Impediments in Marriages (a) diriment impediments – they make the marriage void. e.g. close blood relationship; prior existing marriage (b) prohibitive impediments – they do not affect the validity of marriage, but criminal prosecution may follow Classification of Impediments (a) absolute – the person cannot marry at all. e.g. when one is below 18 years old.

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(b) relative – the prohibition is only with respect to certain persons. e.g. a brother cannot marry his sister.

Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53.

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227) This incapacity need not necessarily be manifested before or during the marriage although it is a basic requirement that the psychological defect be existing during

83 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA marriage. Psychological incapacity – is the condition of a person who does not have the mind, will, and heart for the performance of marriage. Said capacity must be a lasting condition. Under the church laws, examples of psychological incapacity will include: a wrong concept of marital vows and marital infidelity, adamant refusal to give support, unbearable jealousy on the part of one party, indolence, extremely low intelligence, criminality, sadism, epilepsy, habitual alcoholism, drug addiction, compulsive gambling, homosexuality, lesbianism, satyriasis, nymphomania. Intendment of the law has to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. The senseless and protracted refusal of one of the parties of sexual cooperation for the procreation of children is equivalent to psychological incapacity. Guidelines in interpreting and applying psychological incapacity: (a) burden of proof belongs to the plaintiff (b) root cause must be (1) medically or clinically identified; (2) alleged; (3) proven by experts; (4) clearly explained in the decision (c) must be proven to be existing at the time of the celebration of the marriage (d) shown to be medically or clinically permanent or incurable (e) illness must be grave enough to bring about the disability (f) essential marital obligation must be those embraced by Arts. 68-71 (g) interpretations given by the Catholic Church should be given great respect by our courts (h) the fiscal and the solicitor-general to appear as council for the State

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Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) How Degrees of Generation Are Computed (a) in the direct line, count all who are included, then minus one. (b) in the collateral line, go up to the nearest common ancestor, then go down minus one.

Art. 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and

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(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82)

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Marriage between stepbrother and step sister of each other is now allowed under the Family Code.

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by Executive Order 227 and Republic Act No. 8533. The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect" has been deleted by Republic Act No. 8533 [Approved February 23, 1998]).

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) •

A void marriage must first be declared void for the purposes of remarriage. Otherwise, the second marriage will also be void.

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be

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sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a) •

Under Art. 84 of the Civil Code, no marriage license shall be issued to a widow till after three hundred (300) days following the death of her husband, unless in the meantime she has given birth to a child.

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The purpose of 300 hundred days is to prevent doubtful paternity.

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If the widow somehow gets a marriage license within the period prohibited, the marriage would still be valid, without prejudice to criminal liability.

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Q: if a woman's marriage is annulled, may she be issued a marriage license without waiting for the period of 300 days. A: No, unless in the meantime she has given birth to a child or unless the fiurst marriage had been annulled on the ground of impotence.

•

Q: Wolverine and Storm were validly married, but Wolverine was sterile. Later, Wolverine died. Without waiting for 300 days, Storm got married again. Is Storm criminally liable? A: No, for the question of doubtful paternity does not enter the picture, the dead husband having been proved sterile.

Art. 42. The subsequent marriage referred to in the preceding Article

shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall

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

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n)

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Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and

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appears to be incurable; or (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)

Grounds for the annulment of marriage 1) non-age (below 18) 2) unsoundness of mind 3) fraud 4) force, intimidation, or undue influence 5) impotence 6) sexually-transmitted diseases (if incurable) •

There is fraud when through insidious words or machinations of the contracting parties, the other is induced to enter into a contract which, without them, he would have not agreed to.

•

There is force or violence when in order to wrest consent, serious or irresistible force is employed.

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There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants, or ascendants, to give his consent.

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A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent.

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Physical incapacity, as a ground for the annulment of marriage, refers to impotency or the inability to perform the sexual act, and not to sterility or the inability to procreate.

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If both the husband and wife are impotent, the marriage cannot be annulled because neither can claim he or she has been aggrieved by the other.

•

In general, free and voluntary cohabitation ratifies the voidable marriage.

Distinction Between Annulment and Legal Separation Annulment

Legal Separation

(a) the marriage was defective at the very beginning

(a) there was no defect of the marriage at the beginning

(b) the cause for annulment must be already existing at the time of the marriage

(b) the cause for legal separation arises after the marriage celebration

(c) there are seven grounds for annulment

(c) there are ten grounds for legal separation

(d) annulment dissolves the marriage bond; the parties are free to marry again

(d) the marriage remains

(e) the grounds are generally those given in the lex loci celebrationis

(e) the very validity of the marriage itself is not questioned

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of sexually transmissible disease, regardless of its

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nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)

Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)

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Persons Who May Sue for Annulment and Prescriptive Periods Non-age Persons (1) his or her parent – before party becomes 21 (2) the party himself or herself – after party becomes 21 Period – within 5 years after reaching 21 Unsoundness of mind Persons – the spouse (who did not know of the other's insanity) or the relatives or guardians of the insane. Period – at any time before the death of either party Fraud Person – the injured party Period – within 5 years after the discovery of the fraud Force or Intimidation or Undue Influence Person – the injured party Period – within five (5) years from the time the force or intimidation or undue influence ceased. Impotence Person – injured party Period – within five (5) years after the celebration of marriage Sexually Transmissible Disease Person – injured party

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Period – within Five (5) years after the celebration of marriage Note that in general, the prescriptive period for annulment of marriage is five (5) years.

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) Confession of Judgment Defined (a) Confession of judgment by warrant of attorney – authority given by defendant to plaintiff's attorney allowing the latter to tell the court that the defendant confesses or admits the plaintiff's claim to be true and just. (b) Confession of judgment or judgment by confession cognovit actionem – rendered where, instead of defending himself, the defendant chooses to acknowledge the rightfulness of the plaintiff's action. •

The State prohibits annulment of marriage by summary proceedings. The Rules of Court expressly disallows such annulment without actual trial.

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In the Family Code, even if the marriage is void, a judicial declaration to that effect is still required.

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The Court can dismiss the suit for failure of the petitioner to cooperate, resulting in the failure of the fiscal to determine whether or not the collusion exists.

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After marriage is annulled, the obligation of mutual support between spouses ceases. But the children should still be supported by them.

94 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Who Pays for the Attorney's Fees and Other Expenses in Annulment Cases? (a) if the action prospers, (and the annulment is granted), the absolute community property shall be liable. (b) if the marriage is not annulled, whoever brought the action shall pay for the attorney's fees and other litigation expenses.

Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n)

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102

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and 129.

Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n)

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n)

Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

Art. 54. Children conceived or born before the judgment of annulment or

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absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

•

Please note that under the Family Code, a judicial declaration of nullity is required even for void marriage.

Title II. LEGAL SEPARATION

INTRODUCTORY COMMENT Two Kinds of Divorces (a) Absolute divorce – marriage is dissolved (b) Relative divorce or legal separation – marriage is not dissolved; here the parties are merely separated from bed and board. Rules for Absolute Divorce Today Both Under the Civil Code and the Family Code (Without Prejudice to Moslem Divorces) (a) if the action is brought here in the Philippines: 1) between Filipinos – will not prosper 2) between foreigners – will not prosper (b) if the action is brought in a foreign court 1) between Filipinos – will not be recognized here 2) between foreigners – recognized here subject to the following conditions: • •

the foreign court has jurisdiction to grant the absolute divorce said divorce is recognized as valid by the personal law of the parties involved

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3) between a Filipino and a foreigner – if obtained by foreigner and valid according to his personal law – valid for both foreigner and Filipino 'Legal Separation' Distinguished from 'Separation of Property' Legal Separation

Separation of Property

(a) must be done thru the court

(a) if one prior to marriage – may be done thru the marriage settlement; if done during the existence of the marriage – must be done thru the courts

(b) always involves also separation of property

(b) may exist with or without legal separation

(c) may be considered as a cause of separation of property

(c) may be considered as one of the effects of legal separation

(d) the spouse persons are necessarily separated

(d) the spouse persons are not necessarily separated

Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

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(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)

Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

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(4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain decree of legal separation; or (6) Where the action is barred by prescription. (100a) Defenses in Separation (a) condonation (b) consent (c) connivance (d) mutual guilt (recrimination) (e) collusion (f) prescription

Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)

Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103)

Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n)

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Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a) •

The law requires proof, not a mere stipulation of facts or confession of judgment.

Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a)

Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a)

Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;

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(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a) •

The dissolution and liquidation of the conjugal partnership upon issuance of the decree of legal separation shall be automatic.

Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a)

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

Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)

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generally, if their should be reconciliation, forfeiture of the share of the guilty spouse remains

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except, when the parties agree to revive the former property regime.

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Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtorspouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a)

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Creditors who were not notified or not listed in the order should not be prejudiced.

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Title III. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a)

Personal Obligations of Husband and Wife (a) duty to live together (b) duty to observe mutual love, respect and fidelity (c) duty to render mutual help and support There is a duty and a right to live together: cohabitation or consortium. The wife may establish a separate residence or domicile in the following cases: 1) the husband continually indulges in illicit relations with others 2) husband is immoderate or barbaric in his demands for sexual intercourse 3) husband grossly insults her

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4) husband maltreats her 5) she was virtually driven out of their home by her husband 6) husband continually gambles, refuses to support the family 7) husband lives as a vagabond 8) husband insists on their living together with his own parents

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a)

Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from: (1) the community property and, in the absence thereof, (2) from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied (3) from the separate properties. (111a)

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Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a) Note that both of the spouses share in the management.

Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a)

Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper; and (2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)

TITLE IV

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PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE CHAPTER 1 GENERAL PROVISIONS

Art. 74. The property relationship between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) By the provisions of this Code; and (3) By the local custom. (118) Marriage settlement – contract entered into by the future spouses fixing the matrimonial property regime that should govern during the existence of the marriage.

Art. 75. The future spouses may, in the marriage settlements, agree upon: (1) the regime of absolute community, (2) conjugal partnership of gains, (3) complete separation of property, or (4) any other regime. In the absence of a marriage settlement, or when the regime agreed upon

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is void, the system of absolute community of property as established in this Code shall govern. (119a) Requisites for a Marriage Settlement (a) must be made before the celebration of marriage (b) must not contain provisions contrary to law, good morals, good customs, public order, and public policy (c) must generally confine itself only to property relations (d) must be in writing (e) if made by minors, their parents must consent by signing also

Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)

Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties. (122a) Requisites of Marriage Settlement as well as any of its modifications (1) in writing (2) signed by the parties thereto (3) executed before the celebration of the marriage

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(4) marriage must be celebrated (5) duly registered in the civil registry of property in order to bind third persons

Art. 78. A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. (120a)

Art. 79. For the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. (123a) The guardian of a person under civil interdiction or a person suffering disability (except minority) must be made to a party of the marriage settlement.

Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property

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not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a)

Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriages shall be valid. (125a)

CHAPTER 2 DONATIONS BY REASON OF MARRIAGE

Art. 82. Donations by reason of marriage are (Requisites): (1) those which are made before its celebration, (2) in consideration of the same, and (3) in favor of one or both of the future spouses. (126) Donations Propter Nuptias Distinguished from Wedding Gifts

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Donations propter nuptias are wedding gifts, but not all wedding gifts are donations propter nuptias, for said wedding gifts may come after the celebration of the marriage.

Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (127a) To be valid, a donation propter nuptias must be accepted, for no one may be compelled to accept the generosity of another.

Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a)

Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (131a)

Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:

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(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law; (3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse; (5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a) Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except: moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a) Reasons for the General Prohibition of Donations Between Spouses (a) to protect creditors (b) to prevent the weaker spouse from being influenced by the stronger spouse (c) to prevent indirect violation of the rule prohibiting modifications of the marriage settlement during the existence of the marriage

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CHAPTER 3 SYSTEM OF ABSOLUTE COMMUNITY Section 1. General Provisions Art. 88. The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (145a)

Art. 89. No waiver of rights, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (146a)

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Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. (n)

Section 2. What Constitutes Community Property

Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (197a) Community property - consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.

Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well

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as the income, if any, of such property. (201a)

Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (160)

Section 3. Charges and Obligations of the Absolute Community

Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a

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professional or vocational course, or other activity for selfimprovement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; (9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a, 162a, 163a, 202a-205a)

Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property. (164a)

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Section 4. Ownership, Administrative, Enjoyment and Disposition of the Community Property Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (206a)

Art. 97. Either spouse may dispose by will of his or her interest in the community property. (n) •

Either spouse may not dispose inter vivos of his interest to the extent of ½ unless otherwise stipulated in the marriage settlement.

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He may dispose of such interest only by will (mortis causa act) observing: (1) formalities of a will; and (2) the provisions on legitimes and free portion.

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Art. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (n) General rule: Neither spouse may donate any community property without the consent of the other. Exceptions: (a) charity (b) occasions of family rejoicing or family distress

Section 5. Dissolution of Absolute Community Regime Art. 99. The absolute community terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that:

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(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. (178a)

Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (178a) Effects of Abandonment without Just Cause

120 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA (a) receivership (b) judicial separation of property (c) sole administration of the absolute community Take note of the 3 month period when the other spouse left the conjugal dwelling without the intention of returning.

Section 6. Liquidation of the Absolute Community Assets and Liabilities Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse. (2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94. (3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this

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Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution. (5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51. (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children. (n) Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n)

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Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each. (189a)

Chapter 4. Conjugal Partnership of Gains Section 1. General Provisions Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n) Conjugal Partnership – it is that formed by a husband and his wife whereby they place in a common fund the fruits of their separate property, and the income from their work or industry, the same to be divided between them equally upon the dissolution of the marriage or partnership. Conjugal Partnership •

no juridical personality

Ordinary Partnership •

has juridical personality

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regulated generally by law

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regulated by agreement between the parties and only subsidiarily by law

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generally managed by the husband

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management depends upon the stipulation of the parties

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purpose is not particularly for profit

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purpose is for profit

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few grounds for dissolution

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many grounds for dissolution

Art. 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. (42a) Properties Covered by the Conjugal Partnership (a) the proceeds, products, fruits and income from the separate properties of the spouses; (b) those acquired by either or both of the spouses: by their efforts, or by chance

Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains. (n) Rule Under Art. 88: Absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Rule Under Art. 89: No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.

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Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. (147a)

Section 2. Exclusive Property of Each Spouse Art. 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) That which is purchased with exclusive money of the wife or of the husband. (148a) Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place the property is located. (137a, 168a, 169a)

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Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. (n) Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (n) Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. (150a) E.g. If a friend donates to a married couple a parcel of land, the land will not be conjugal, but separate property (½ for each). This is acquisition by gratuitous title. If a different proportion or designation of shares is made, such will be followed.

Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee spouse, whenever they have been advanced by the conjugal partnership of gains. (151a)

Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. (n)

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•

If the benefits are being given by reason of payment from the conjugal property, these shall pertain to the conjugal partnership like annuities or proceeds of insurance.

Section 3. Conjugal Partnership Property Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (160a)

Art. 117. The following are conjugal partnership properties: (1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; (2) Those obtained from the labor, industry, work or profession of either or both of the spouses; (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse;

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(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (5) Those acquired through occupation such as fishing or hunting; (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and (7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse. (153a, 154a, 155, 159) Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. (n) •

The determining factor here is: when does the ownership took effect? Is it before or during marriage?

Art. 119. Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. (156a, 157a)

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Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership. (158a)

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Section 4. Charges Upon and Obligations of the Conjugal Partnership Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; (4) All taxes, liens, charges, and expenses, including major or minor

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repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and (9) Expenses of litigation between the spouses unless the suit is found to groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a)

Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them,

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as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purpose abovementioned. (163a)

Art. 123. Whatever may be lost during the marriage in any game of chance or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property. (164a)

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Section 5. Administration of the Conjugal Partnership Property Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a)

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Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a) General Rule: Neither spouse may donate any conjugal partnership property without the consent of the other. Exceptions: Moderate donations for: • charity or • on occasions of family rejoicing or • family distress.

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Section 6. Dissolution of Conjugal Partnership Regime Art. 126. The conjugal partnership terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

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(3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. (178a)

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligation to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (167a, 191a) Effects of Abandonment without Just Cause (a) receivership (b) judicial separation of property (c) sole administration of the conjugal partnership

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Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. (2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. (4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the

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spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121. (5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. (8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article 51. (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a)

Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the

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settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n) Liquidation Under the Revised Rules of Court When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse.

Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. (189a)

Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly

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determined in this Chapter. (187a)

Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (188a)

Chapter 5. Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (190a) General Rule: Separation of property between spouses during the marriage shall not take place. Except: By judicial order.

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

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(2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (191a)

Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. (191a)

Art. 137. Once the separation of property has been decreed, the absolute

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community or the conjugal partnership of gains shall be liquidated in conformity with this Code. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (192a)

Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (191a)

Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (193a)

Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. (194a)

Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property regime that existed between them before the separation of property in any of the following instances: (1) When the civil interdiction terminates; (2) When the absentee spouse reappears;

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(3) When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration; (4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other; (5) When parental authority is judicially restored to the spouse previously deprived thereof; (6) When the spouses who have separated in fact for at least one year, reconcile and resume common life; or (7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted. The revival of the former property regime shall be governed by Article 67. (195a) Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse: (1) When one spouse becomes the guardian of the other; (2) When one spouse is judicially declared an absentee; (3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or (4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.

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If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. (n)

Chapter 6. Regime of Separation of Property Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be suppletory. (212a)

Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. (213a) Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (214a)

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Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. The liabilities of the spouses to creditors for family expenses shall, however, be solidary. (215a)

Chapter 7. Property Regime of Unions Without Marriage Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of

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their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a) Please take note: The other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. (144a)

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TITLE V THE FAMILY Chapter 1. The Family as an Institution Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. (216a, 218a)

Art. 50. Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among brothers and sisters, whether of the full or half-blood. (217a)

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•

The enumeration of “brothers and sisters” as members of the same family does not comprehend “sisters-in-law” and “brother-in-law.”

Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. This rules shall not apply to cases which may not be the subject of compromise under the Civil Code . (222a)

Chapter 2. The Family Home Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a) Reason: When creditors seize the family house, they virtually shatter the family itself.

Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a)

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Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a)

Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a)

Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family

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home. (227a, 228a) Note: Property purchased under an ongoing installment plan may be constituted as a family home.

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a)

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Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n)

Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n)

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TITLE VI PATERNITY AND FILIATION Chapter 1. Legitimate Children Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n) Distinction Between 'Paternity' and 'Filiation' While paternity (maternity) is the civil status relationship of the father (mother) to the child, filiation is the civil status of the child to the father or mother. Classification of Filiation (a) by nature (legitimate or illegitimate) (b) by adoption

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Distinctions Between Legitimate and Illegitimate Children Legitimate Children

Illegitimate Children

1. Use of surname – right to bear surname of father

1. Required to use mother's surname

2. Parental authority – joint authority of parents

2. Under the sole parental authority of mother

3. Support – preferential to support over mother if father has no sufficient means to both claims

3. No such preference

4. Successional right – entitled to inheritance

4. Entitled to ½ of legitimate child's inheritance 5. Not primary beneficiaries

5. Beneficiary right under the SSS and GSIS – primary beneficiaries 6. No such benefit 6. Paternity leave – father is entitled to paternity leave of 7 days with full pay

•

The Family Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument

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executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a) Legitimate child – one conceived or born during the marriage of the parents. Artificial insemination – a medical procedure by which the semen is introduced into the vagina by means other than copulation for the purpose of procreation. Requisites for test-tube babies to be legitimate The parents must have--(a) authorized or ratified such insemination (b) in a written instrument (c) executed and signed by them before the birth of the child

Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n) Illegitimate child – one conceived and born outside a valid marriage.

Art. 166. Legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

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(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)

Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a)

Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a)

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Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a)

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a) Who Can Question the Legitimacy of A Child? General Rule: Only the husband. Exceptions: 1. If the husband should die before the expiration of the period fixed for bringing the action; 2. If he should die after the filing of the complaint, without having desisted from the same; 3. If the child should be born after the death of the husband (Art. 171)

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Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the husband should died before the expiration of the period fixed for bringing his action; (2) If he should die after the filing of the complaint without having desisted therefrom; or (3) If the child was born after the death of the husband. (262a) •

The term heirs includes testamentary, voluntary, compulsory, or legal heirs.

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Chapter 2. Proof of Filiation Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws.

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(265a, 266a, 267a) Filiation proceeding – a special statutory proceeding, criminal in form, but in the nature of a civil action to enforce a civil obligation or duty specifically for the purpose of establishing parentage and putative father's duty to support his illegitimate child. Means Allowed By the Rules of Court (a) an act or declaration concerning pedigee (b) family reputation or tradition concerning pedigree (c) common reputation respecting pedigree (d) judicial admission (e) admissions of a party (f) admission by silence •

Oral evidence may be admitted if the needed document cannot be presented.

The term “continuous” means that there must be a showing of permanent intention of the supposed father to consider the child as his own, by continuous and clear manifestation of paternal affection and care.

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. Who May Claim the Legitimacy of the Child? General Rule: The Child himself may file the action.

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Art. 174. Legitimate children shall have the right: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and (3) To be entitled to the legitime and other successional rights granted to them by the Civil Code . (264a)

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Chapter 3. Illegitimate Children Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a)

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a) •

If the father acknowledges the child in writing, the child can use the surname of his father.

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Chapter 4. Legitimated Children Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. (269a) Requisites for a Child to be Legitimated (a) Conceived and born outside wedlock of parents who at the time of the conception of the child, were not disqualified by any impediment to marry each other; (b) A subsequent valid marriage between the parents. •

Being a catholic priest is not an impediment.

Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. (270a)

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Art. 179. Legitimated children shall enjoy the same rights as legitimate children. (272a)

Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)

Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. (274)

Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues. (275a)

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TITLE VII ADOPTION Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family. Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title. In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, E. O. 91 and PD 603) Adoption – the process of making a child possess in general the rights accorded to a legitimate child.

164 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA Qualifications of Adopter (a) he must be of age (at least 18 years old); (b) in possession of full civil capacity and legal rights; (c) in a possession to support and care for his children in keeping with the means of the family; (d) generally at least 16 years older than the adopted General rule: Only minors may be adopted. Exception: Those of major age may be adopted if allowed under this Title. When Adopter May Be Less Than 16 Years Older than the Adopted (a) when the adopter is the parent by nature of the adopted; (b) when the adopter is the spouse of the legitimate parent of the person to be adopted •

Child's welfare is paramount, hence, no mother shall be separated from a child under 7 years of age unless the court finds compelling reason to rule otherwise.

Art. 184. The following persons may not adopt: (1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3) An alien, except: (a) A former Filipino citizen who seeks to adopt a relative by

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consanguinity; (b)One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoptions as may be provided by law. (28a, E. O. 91 and PD 603)

Art. 185. Husband and wife must jointly adopt, except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. (29a, E. O. 91 and PD 603)

Art. 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. (29a, E. O. and PD 603) •

In case there is disagreement in the exercise of such joint parental authority, the father's decision will prevail, unless there is a judicial order to the contrary.

Art. 187. The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the

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adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. (30a, E. O. 91 and PD 603)

Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over, (2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; (3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted. (31a, E. O. 91 and PD 603) •

De facto guardian can give consent in adoption cases.

Art. 189. Adoption shall have the following effects:

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(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39(1)a, (3)a, PD 603)

Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the

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surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603)

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The article applies only in legal or intestate succession

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Difference between par. 3 and 4: ◦ In par. 3, the word OR is used (illegitimate children or surviving souse); in par. 4, AND is the word used. In par. 3, the estate is divided into two (2) parts; in par. 4, three (3) parts are involved.

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In par. 5, if only the survivors are the adopters, they get the entire estate. Clearly, all the indications point out that the adoption shall exclude collateral relatives of the adopted.

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In par. 6, the rules are set forth in Arts. 1004-1010 of the Civil Code, i.e., when only collateral relatives survive.

Issue: May the adopted represent his adopting parent in the latter's right to inherit from his (adopter) parents or ascendants? Held: If the adopting parent should die before the adopted child does, the latter cannot represent the former the inheritance from the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because the filiation created by fiction of law is exclusively between the adopter and the adopted. By adoption, the adopters can make for themselves an heir but they cannot make one for their kindred.

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Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumental acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD 603) •

The Article speaks of judicial rescission (or cancellation) of the adoption. Grounds – those for the suspension of loss of parental authority.

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The adopted child can bring the action himself when he is at least 18 years of age. Grounds – same as those disinheriting an ascendant.

Art. 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases: (1) If the adopted has committed any act constituting ground for disinheriting a descendant; or (2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. (41a, PD 603)

Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or

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property or both. Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his surname prior to the adoption. The court shall accordingly order the amendment of the records in the proper registries. (42a, PD 603)

TITLE VIII SUPPORT Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a) Kinds of Support (a) as to amount

171 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA 1) natural (bare necessities of life) 2) civil (in accordance with the financial standing) (b) as to source of obligation 1) legal (from provision of law) 2) voluntary (from agreement or from provision of a will) (c) special kind – alimony pendente lite (pending litigation) Support Includes: (a) (b) (c) (d) (e) (f)

food or sustenance dwelling or shelter clothing medical attendance education transportation

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Effect of reaching age of majority: the person is still entitled to support. If he has not yet finished his studies, he is still entitled generally to be supported.

Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of full or half-blood (291a)

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If the wife commits adultery, she loses the right to be supported.

Issue: If the husband and the wife commit concubinage and adultery, can the wife still demand support from the husband? Held: Yes, because they are in pari delicto (mutually guilty), and therefore, it is as if both acted in good faith.

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence. (291a)

Art. 197. In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n)

Art. 198. During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases.

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However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. (292a)

Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and (4) The brothers and sisters. (294a)

Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a)

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Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a)

Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a)

Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a)

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (299a)

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Art. 2217 of the Civil Code on moral damages can have a retroactive effect on actions for support.

Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. (302a) Reason: Sound public policy – support is necessary for one's survival.

Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. (2164a) •

The Article is based on the principle that no one shall unjustly enrich himself at the expense of another.

Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. (2166a)

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Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes of circumstances manifestly beyond the contemplation of the parties. (n)

TITLE IX PARENTAL AUTHORITY Chapter 1. General Provisions

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. (n) Parental authority (Patria Potestas) – the sum total of the right of parents over the persons and property of their children. Purpose of Parental Authority It has for its purpose not only the sound physical development of the children, but also the cultivation of their intellectual perceptions, and the nourishment of their appetitive

177 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA and sensitive faculties. Kinds of Parental Authority 1. over the persons; and 2. over the property •

Parental authority is also attached illegitimate children on the same nature as legitimated and adopted children.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. (313a)

General rule: parental authority and responsibility may not be renounced. Except: in the cases authorized by law. •

Parental authority is both a right and a duty.

Consequences of Parental Authority (a) it is intransmissible (b) if the parents die, the administrator of the estate does not exercise parental authority; (c) it cannot be waived. Except in the following cases: 1) when there is guardianship approved by the court; 2) when there is adoption approved by the court; 3) when there is emancipation by concession; and 4) when there is surrender of the child to an orphan asylum.

Art. 211. The father and the mother shall jointly exercise parental

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authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. (311a)

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (n)

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n)

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. (355a)

Art. 215. No descendant shall be compelled, in a criminal case, to testify

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against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. (315a) •

The descendant cannot be compelled, but if he wants to testify, he may do so.

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The Article applies to a criminal, not a to a civil case.

Chapter 2. Substitute and Special Parental Authority

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated: (1) The surviving grandparent, as provided in Art. 214; (2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a)

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Art. 217. In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (314a) •

Take note of summary proceedings.

Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a)

Art. 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (n)

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Chapter 3. Effect of Parental Authority Upon the Persons of the Children

Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

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(4) To enhance, protect, preserve and maintain their physical and mental health at all times; (5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (6) To represent them in all matters affecting their interests; (7) To demand from them respect and obedience; (8) To impose discipline on them as may be required under the circumstances; and (9) To perform such other duties as are imposed by law upon parents and guardians. (316a)

Art. 221. Parents and other 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 the appropriate defenses provided by law. (2180(2)a and (4)a )

Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. (317)

Art. 223. The parents or, in their absence or incapacity, the individual,

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entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a)

Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (391a)

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Chapter 4. Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a

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foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a) •

The father and mother ipso jure become the legal guardian of the child's property.

Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. (321a, 323a)

Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus

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give in whole or in part shall not be charged to the child's legitime. (322a)

Chapter 5. Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a)

Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:

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(1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a)

Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a)

Art. 231. The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same: (1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or (4) Subjects the child or allows him to be subjected to acts of lasciviousness.

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The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (33a)

Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n)

Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. (n)

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TITLE X EMANCIPATION AND AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years. Emancipation also takes place: (1) By the marriage of the minor; or (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least eighteen years of age. Such emancipation shall be irrevocable. (397a, 398a, 400a, 401a)

190 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA How Emancipation Takes Place 1. marriage of the minor; 2. attainment of the age of majority; 3. parental concession (child must be at least 18, and must consent); 4. judicial concession (child must be at least 18, and must consent, and must be deemed convenient for the minor)

Art. 235. The provisions governing emancipation by recorded agreement shall also apply to an orphan minor and the person exercising parental authority but the agreement must be approved by the court before it is recorded. (n)

Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. (412a)

Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the recorded agreement mentioned in the foregoing. Articles 234 and 235 shall revive the parental authority over the minor but shall not affect acts and transactions that took place prior to the recording of the final judgment in the Civil Register. (n) Effects of Emancipation by Marriage or by Voluntary Concession 1. Parental authority over the person is completely extinguished.

191 of 198 CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA 2. Parental authority over the property: • •

he can administer but he cannot borrow money, alienate or encumber real property, or sue without parental assistance.

TITLE XI SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW Chapter 1. Prefatory Provisions

Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority. (n)

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Chapter 2. Separation in Fact Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts. The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n)

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Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. (n)

Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. (n)

Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (n)

Art. 243. A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings. (n)

Art. 244. In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his failure to appear, and shall require such appearance, if possible. (n)

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Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse. (n)

Art. 246. If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (n)

Art. 247. The judgment of the court shall be immediately final and executory. (n)

Art. 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n)

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Chapter 3. Incidents Involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. (n)

Art. 250. Such petitions shall be verified and filed in the proper court of the place where the child resides. (n)

Art. 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (n)

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Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n)

Chapter 4. Other Matters Subject to Summary Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable. (n)

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TITLE XII FINAL PROVISIONS

Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1 of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No. 603, otherwise known as the Child and Welfare Code , as amended, and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed.

Art. 255. If any provision of this Code is held invalid, all the other provisions not affected thereby shall remain valid.

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Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

Art. 257. This Code shall take effect one year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary, Office of the President.