Persons Marriage Matrix
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VOID
VOIDABLE
LEGAL SEPARATION
DE FACTO SEPARATION
No legal effect
Valid until annulled
Marriage bonds still subsist; Separation by a mensa et thoro (bed and board)
Declaration of nullity
Petition for annulment
Petition for legal separation
--
Direct or collateral
Direct
Direct
--
Who may file and when to file action
By any interested party
According to Art 47: 1. party below 18 within 5 years after reaching 21 years old 2. guardian/parent not giving consent before party turns 21 years old 3. unsound mind after coming to reason/lucid interval -4. sane party if unaware of other’s insanity 5. guardian of insane 6. party subjected to fraud, within 5 years after discovery of fraud 7. party subjected to force, within 5 years after cessation of force 8. physical incapacity and STD, within 5 years from marriage
Only the spouses
--
Prescription
Art 39 Action or defense is imprescriptible, maybe raised anytime even after death of the parties if necessary to determine rights
Art 57 5 years from the date occurrence of cause/ground for LS
--
Nature Means of Impugning/Attack Manner/Kind of Attack
Property Regime Children
Art 147 co-ownership Art 50 (exclusion of effect number 1) and Art 54 illegitimate, except for those under Art. 36 and Art. 53 Mother unless found to be unfit (Tender Years Presumption)
Child Custody
Grounds for Action
TYP according to Art 213, FC: “No child under seven shall be separated from the mother unless the court finds compelling reasons to order otherwise.” I. Art 4 (absence of formal or essential requisites of marriage) ESSENTIAL (Art 2) 1) legal capacity, must be man and woman (age and no impediments: family relations and previous marriage) 2) consent freely given in the presence of solemnizing officer FORMAL (Art 3) 1) Authorized solemnizing officer (Art 7)
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
5 yrs after discovery of fraud/removal of force/from marriage (refer to the table above for more details) Art 45(2) unsound mind: anytime during lifetime because insanity may recur ACP or CPG Art 54: Conceived/born BEFORE decree of annulment: legitimate AFTER decree of annulment: illegitimate Art 49 Court decides the custody in absence of written agreement between the spouses Below 7 years old: mother, unless unfit (Tender Years Presumption) Above 7 years old: children’s choice taken into consideration, unless choice is unfit for sole parental authority Art 45 1. one of the parties is 18-25 and no parent consent 2. unsound mind 3. consent obtained by fraud, as defined by Art 46 is concealment of: a) conviction by final judgment of moral turpitude b) pregnancy by man other than hubby c) habitual alcoholism, drug addiction,
No legal recognition
ACP or CPG
ACP or CPG
Legitimate (Art 50)
Legitimate
DURING PENDENCY: Art 62 provides the application of Art 49 AFTER FINAL DECREE: Art 63 (4) custody awarded to the innocent spouse subject to Art 213, FC decided by the Court taking into account all relevant info and child’s choice, unless chosen parent is unfit Art 55 1. repeated physical abuse of petitioner, common child and petitioner’s child 2. moral or physical pressure to change political or religious beliefs 3. attempt to corrupt or induce petitioner, child of petitioner or common child to prostitution or connivance in such act
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MARRIAGE Page 1 of 6
a. incumbent judiciary member b. priest, rabbi, imam or minister of any religious sect, duly authorized and registered with the civil registrar general c. ship captain and airplane chief only in Art 31 (articulo mortis) d. military commander of a unit to which a chaplain is assigned, Art 32 (articulo mortis) e. consul, vice consul and consul general for Filipinos abroad mayors also authorized by LGC
Grounds for Action
2) Valid marriage license except for marriages of exceptional character - Art 9 ML shall be issued by local civil of habitual residence of either party - Art 10 for Filipinos abroad, the consular office will take the role of local civreg - Art 11 two application for one ML - Art 12 Proofs of age A original or certified copies of birth cert B original or certified copies of baptismal C residence certificate witness by 2 witness, preferably nearest kin Proof of age dispensed with if: A parents appear personally B local civil registrar convinced C previously married - Art 13 If previously married: A death cert, if unavailable, affidavit about circumstance of death & civstat B judicial decree of absolute divorce/ annulment/declaration of nullity C declaration of presumptive death - Art 14 parents’ consent for 18-21 - Art 15 parents’ advice for 21-25 - Art 16 marriage counseling for both even if only 1 is required. Failure to do so suspends issuance of ML for 90 days - Art 17 posted for 10 consecutive days - Art 18 impediment written in application for ML, will issue unless: a) stopped by court b) interested party - Art 19 fees for issuance of ML - Art 20 valid in the Phil for 120 days - Art 21 for foreigners and citizens of their country, certificate of legal capacity to marry should be obtained in their consular offices; for stateless persons, affidavit to local civil registrar - Art 22 contents of marriage certificate - Art 23 Duty of solemnizing officer A Furnish couple with original marcertif
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
lesbianism or homosexuality d) STD (regardless of severity) 4. consent obtained by force, intimidation or undue influence 5. incurable physical incapability to consummate marriage 6. incurable and serious STD Art 42 Subsequent marriages after reappearance of spouse absent are automatically terminated by filing of affidavit of reappearance ABSENCE Art 41 Declaration of presumptive death absent for 4 consecutive years with well-founded belief that he is dead Art 391 (danger of death): 2 years, tho only for purposes of remarriage shortened Civil Code time because of latest advances in technology which facilitates more efficient communication as Mam Beth would always say “he better be dead!”
4.
final judgment sentencing respondent more than six years in prison even if pardoned 5. drug addiction or habitual alcoholism 6. lesbianism or homosexuality 7. respondent’s bigamous marriage here or abroad 8. sexual infidelity or perversion 9. attempt at the life of petitioner 10. abandonment without justifiable cause for more than one year Art 97, CC 1. adultery of wife or concubinage of husband 2. attempt at the life of the other
Art 391, CC 1) on board a vessel lost during sea voyage, airplane missing 2) in the armed forces, taken part in war 3) danger of death under other circumstances Art 43 Effects of termination of subsequent marriage due to reappearance of spouse absent 1. children conceived prior to termination shall be considered legitimate, custody and support decided by the Court 2. ACP/CPG dissolved and liquidated, if either spouse contracted marriage in bad faith, his/her share of net profits of ACP/CPG forfeited in favor of - common children - guilty spouse’s children - innocent spouse 3. donations (donation propter nuptias) shall remain valid except if the donee contracted marriage in bad faith 4. innocent may revoke designation of other spouse as beneficiary in insurance policy even if latter is irrevocable MARRIAGE Page 2 of 6
B Send duplicate and triplicate of marriage certificate to local civil registrar within 15d C Keep quadruplicate of marriage certificate, original ML and affidavit of wedding elsewhere (Art 8)
Grounds for Action
5. spouse who contracted subsequent marriage in bad faith disqualified to inherit from intestate and testate succession
3) Ceremony wherein both parties appear before a solemnizing officer and make personal declarations that they take each other as husband and wife, with at least two witness of legal age - Art 6 does not prescribe any form of ceremony as long as 1 personal appeared 2 declaration of taking each other as husband and wife in the presence of solemnizing officer 3 signing of marriage certificate 4 at least two witnesses of legal age - Art 8 places of solemnizing marriage 1 chambers of judge, open court, church, chapel, temple 2 office of consul-general, consul, viceconsul 3 EXCEPT when a) articulo mortis (Art 29) b) remote place (Art 29) c) both parties request in writing, sworn statement to solemnize somewhere else II. Art. 35 1. below 18 years old 2. solemnized by a person not legally authorized to perform marriage except in cases where either or both of the parties believe his authority in good faith 3. solemnized without valid marriage license unless marriage of exceptional character - Art 27 (articulo mortis: airplane chief, ship captain, A31 or military comm A32) - Art 28 (residence is isolated location) - Art 33 (Muslim or ethnic group) - Art 34 (cohabit for 5 years) 4. bigamous or polygamous except for Article 41 (absence) 5. contracted by mistake of identity 6. subsequent marriages that are void under Art 53 (noncompliance of filing the requirements for judgment of annulment or absolute nullity in Art 52) III. Art 36 (psychological incapacity)
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
MARRIAGE Page 3 of 6
Guidelines laid down in (Molina v CA) 1 burden of proof in the plaintiff 2 root cause must be medically/clinically identified and alleged in the complaint 3 exists at the time of the marriage 4 incurable 5 grave enough to bring about disability to perform marital obligations 6 marital obligation in Art 68-71, 220-221 & 225 of Family Code 7 decision of National Appellate Matrimonial Tribunal of Catholic Church 8 participation of prosecuting attorney to protect state interest in sanctity of family IV. Art 37 (incestuous marriages) 1. between ascendants and descendants 2. between brothers and sisters; halfblood or full-blood V. Art 38 (violation of public policy) 1. collateral blood relatives, illegitimate or legitimate, up to 4th degree 2. step-parents and step-children 3. parents-in-law and children-in-law 4. adopted parent and adopted child 5. surviving spouse of adopter and adopted child 6. surviving spouse of adopted child and adoptive parent 7. adopted children and legit children 8. adopted children of the same adopter 9. killed spouse (own or other) with the to intention to marry VI. Art 44 (subsequent marriage in the absence of spouse contracted in bad faith)
Defenses/ Ratification
Cannot be ratified
Art 45 1. party without parental consent, by cohabiting freely after attaining 21 2. only by insane spouse (sane cannot ratify because the defect in consent is with the insane) 3. victim of fraud, if freely cohabited after discovery of fraud 4. victim of force, if freely cohabited after cessation of force or undue influence STD and physical incapability not subject to ratification because incurable
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
Art 1. 2. 3.
56 condonation (forgiveness) consent (permission) connivance (3rd party and active participation) 4. recrimination (clean hands) 5. collusion (agreement bet spouses) 6. prescription (Art 57)
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REQUISITES OF LEGAL SEPARATION Art 58 6 months cooling off period Art 59 steps to reconciliation Art 60 no stipulation of facts or confession of judgment accepted; participation of state in form of prosecuting attorney MARRIAGE Page 4 of 6
Pendency of Decree
No law for pendency
Art 50 Art 43 par 2, 3, 4, 5 (termination of subsequent marriage when spouse absent reappears) 2) ACP/CPG liquidated, partitioned and distributed; if bad faith, forfeit share of net profit in favor of: common children, guilty party’s children and in default of children, innocent spouse 3) donation propter nuptias are valid, except for bad faith 4) revoke the designation of other spouse as beneficiary in insurance even if irrevocable (specific prevails over gen) 5) bad faith disqualified from inheriting from innocent spouse by testate and intestate succession
Effects of Action
Art 44 marriage contracted by both in bad faith donations by reason of marriage revoked by law Art 371, CC In annulment If wife is guilty, she resumes maiden name If wife is innocent, she has the option to go back or retain UNLESS a) Court says otherwise b) husband remarries
Art 49 In the absence of written agreement bet spouses Court shall provide for the ff: 1. support of the spouses 2. custody and support of common children as well as visitation rights of other parent Art 50 Art 43 par (2, 3, 4, 5) 1. liquidation, partition and distribution of properties 2. custody and support of common children 3. delivery of their presumptive legitimes 4. creditors notified 5. conjugal dwelling and lot goes to parent having choice custody of majority of common children, below seven chose mother (Art 102 & 129) unless adjudicated in previous judicial proceedings Art 51 Presumptive legitimes of children computed from time of judgment delivered in cash, property or sound securities child or guardian may ask for enforcement of judgment shall not prejudice the ultimate successional rights of children Art 52 Recorded in the civil registry and registries of properties: Judgment of annulment or of absolute nullity Partition, distribution of properties Delivery of children’s presumptive legitimes or else not affect third persons
Art 61 Effects of Filing of Petition: 1. entitled to live separately 2. designate third party for administration of ACP/CPG Art 62 Art 49 applies moral and material well being of children taken into consideration children’s choice of parent Art 63 1. live separately but marriage bonds not severed 2. ACP/CPG dissolved and liquidated but offender has no right to net profits, forfeited in favor of A43(2) 3. custody of minor children awarded to innocent spouse, subject to Art 213 (parental authority designated by court, take consideration all relevant info and choice of child unless unfit) 4. offender disqualified from inheriting by both intestate and testate Art 64 innocent may revoke all donation from offender, like insurance policy registered lien or alienation must be respected action to revoke donation brought within 5 years Art 372, CC Wife’s mandatory retention of name prior to legal separation because affected no change to her marital status
--
Art 100/Art 127 De facto separation shall not affect ACP/CPG except that 1. spouse who leaves conjugal home or refuses to live there shall not have right to be supported 2. consent of one spouse to transaction of the other, judicial authorization may be obtained in summary proceeding (Art 239) 3. absence of sufficient CPG, separate property of both spouses shall be solidarily liable for the support of the family. Spouse present shall be given judicial authority to administer or encumber specific separate property Art 239 petition for judicial authorization when consent of spouse is withheld or cannot be obtained Art 242 spouse shall be notified by the petition, ordering to show cause why it should not be granted. To be served at the last known address of spouse Art 213 (parental authority designated by court, take consideration all relevant info and choice of child unless unfit)
Art 53 either of the former spouse may remarry but failure to comply with Art 52 renders subsequent marriage null & void Art 65 Joint manifestation under oath filed in the same court of legal separation
Convalidation/ Reconciliation
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
--
Art 45 Except for physical incapacity to consummate marriage and STD, grounds are convalidated by free cohabitation
Art 66 Reconciliation shall have the following effects: 1. if legal separation still pending, shall be terminated at whatever stage 2. if final decree, shall be set aside but separation of property and forfeiture of guilty spouse’s share
--
MARRIAGE Page 5 of 6
subsist unless spouses agree to revive former regime Art 67 Former property relations may be revived, but requires a statement accomplished under oath and filed in the same court as the proceedings for separation shall specify the ff: 1. Properties contributed anew 2. Properties to remain separate 3. Names of all known creditors and amounts owed
VOIDABLE MARRIAGES GROUNDS 18-21 BUT NO PARENT CONSENT
UNSOUND MIND
WHO CAN FILE?
WHEN TO FILE?
WHO CAN RATIFY?
HOW TO RATIFY?
Parent who didn’t give consent Party without parent’s consent Sane and unknowing spouse
Before the party reaches 21 Within 5 years after turning 21
Party without parent consent
Free cohabitation after attaining age 21
Insane spouse only (because the defect of consent is with him)
Free cohabitation after regaining sanity
Injured party
Free cohabitation
Legal guardian of insane Insane spouse
Anytime before death of either party During lucid interval or after regaining sanity
CONSENT OBTAINED BY FRAUD
Within 5 yrs after discovery of fraud
CONSENT OBTAINED BY FORCE, UNDUE INFLUENCE AND INTIMIDATION
Within 5 yrs after cessation of force, etc Injured party
INCURABLE PHYSICAL INCAPACITY INCURABLE AND SERIOUS SEXUALLY TRANSMITTED DISEASE
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
Within 5 yrs after marriage
Cannot be ratified because ratification only cures defect in CONSENT and not PHYSICAL
MARRIAGE Page 6 of 6
VOIDABLE
LEGAL SEPARATION
DE FACTO SEPARATION
No legal effect
Valid until annulled
Marriage bonds still subsist; Separation by a mensa et thoro (bed and board)
Declaration of nullity
Petition for annulment
Petition for legal separation
--
Direct or collateral
Direct
Direct
--
Who may file and when to file action
By any interested party
According to Art 47: 1. party below 18 within 5 years after reaching 21 years old 2. guardian/parent not giving consent before party turns 21 years old 3. unsound mind after coming to reason/lucid interval -4. sane party if unaware of other’s insanity 5. guardian of insane 6. party subjected to fraud, within 5 years after discovery of fraud 7. party subjected to force, within 5 years after cessation of force 8. physical incapacity and STD, within 5 years from marriage
Only the spouses
--
Prescription
Art 39 Action or defense is imprescriptible, maybe raised anytime even after death of the parties if necessary to determine rights
Art 57 5 years from the date occurrence of cause/ground for LS
--
Nature Means of Impugning/Attack Manner/Kind of Attack
Property Regime Children
Art 147 co-ownership Art 50 (exclusion of effect number 1) and Art 54 illegitimate, except for those under Art. 36 and Art. 53 Mother unless found to be unfit (Tender Years Presumption)
Child Custody
Grounds for Action
TYP according to Art 213, FC: “No child under seven shall be separated from the mother unless the court finds compelling reasons to order otherwise.” I. Art 4 (absence of formal or essential requisites of marriage) ESSENTIAL (Art 2) 1) legal capacity, must be man and woman (age and no impediments: family relations and previous marriage) 2) consent freely given in the presence of solemnizing officer FORMAL (Art 3) 1) Authorized solemnizing officer (Art 7)
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
5 yrs after discovery of fraud/removal of force/from marriage (refer to the table above for more details) Art 45(2) unsound mind: anytime during lifetime because insanity may recur ACP or CPG Art 54: Conceived/born BEFORE decree of annulment: legitimate AFTER decree of annulment: illegitimate Art 49 Court decides the custody in absence of written agreement between the spouses Below 7 years old: mother, unless unfit (Tender Years Presumption) Above 7 years old: children’s choice taken into consideration, unless choice is unfit for sole parental authority Art 45 1. one of the parties is 18-25 and no parent consent 2. unsound mind 3. consent obtained by fraud, as defined by Art 46 is concealment of: a) conviction by final judgment of moral turpitude b) pregnancy by man other than hubby c) habitual alcoholism, drug addiction,
No legal recognition
ACP or CPG
ACP or CPG
Legitimate (Art 50)
Legitimate
DURING PENDENCY: Art 62 provides the application of Art 49 AFTER FINAL DECREE: Art 63 (4) custody awarded to the innocent spouse subject to Art 213, FC decided by the Court taking into account all relevant info and child’s choice, unless chosen parent is unfit Art 55 1. repeated physical abuse of petitioner, common child and petitioner’s child 2. moral or physical pressure to change political or religious beliefs 3. attempt to corrupt or induce petitioner, child of petitioner or common child to prostitution or connivance in such act
--
--
MARRIAGE Page 1 of 6
a. incumbent judiciary member b. priest, rabbi, imam or minister of any religious sect, duly authorized and registered with the civil registrar general c. ship captain and airplane chief only in Art 31 (articulo mortis) d. military commander of a unit to which a chaplain is assigned, Art 32 (articulo mortis) e. consul, vice consul and consul general for Filipinos abroad mayors also authorized by LGC
Grounds for Action
2) Valid marriage license except for marriages of exceptional character - Art 9 ML shall be issued by local civil of habitual residence of either party - Art 10 for Filipinos abroad, the consular office will take the role of local civreg - Art 11 two application for one ML - Art 12 Proofs of age A original or certified copies of birth cert B original or certified copies of baptismal C residence certificate witness by 2 witness, preferably nearest kin Proof of age dispensed with if: A parents appear personally B local civil registrar convinced C previously married - Art 13 If previously married: A death cert, if unavailable, affidavit about circumstance of death & civstat B judicial decree of absolute divorce/ annulment/declaration of nullity C declaration of presumptive death - Art 14 parents’ consent for 18-21 - Art 15 parents’ advice for 21-25 - Art 16 marriage counseling for both even if only 1 is required. Failure to do so suspends issuance of ML for 90 days - Art 17 posted for 10 consecutive days - Art 18 impediment written in application for ML, will issue unless: a) stopped by court b) interested party - Art 19 fees for issuance of ML - Art 20 valid in the Phil for 120 days - Art 21 for foreigners and citizens of their country, certificate of legal capacity to marry should be obtained in their consular offices; for stateless persons, affidavit to local civil registrar - Art 22 contents of marriage certificate - Art 23 Duty of solemnizing officer A Furnish couple with original marcertif
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
lesbianism or homosexuality d) STD (regardless of severity) 4. consent obtained by force, intimidation or undue influence 5. incurable physical incapability to consummate marriage 6. incurable and serious STD Art 42 Subsequent marriages after reappearance of spouse absent are automatically terminated by filing of affidavit of reappearance ABSENCE Art 41 Declaration of presumptive death absent for 4 consecutive years with well-founded belief that he is dead Art 391 (danger of death): 2 years, tho only for purposes of remarriage shortened Civil Code time because of latest advances in technology which facilitates more efficient communication as Mam Beth would always say “he better be dead!”
4.
final judgment sentencing respondent more than six years in prison even if pardoned 5. drug addiction or habitual alcoholism 6. lesbianism or homosexuality 7. respondent’s bigamous marriage here or abroad 8. sexual infidelity or perversion 9. attempt at the life of petitioner 10. abandonment without justifiable cause for more than one year Art 97, CC 1. adultery of wife or concubinage of husband 2. attempt at the life of the other
Art 391, CC 1) on board a vessel lost during sea voyage, airplane missing 2) in the armed forces, taken part in war 3) danger of death under other circumstances Art 43 Effects of termination of subsequent marriage due to reappearance of spouse absent 1. children conceived prior to termination shall be considered legitimate, custody and support decided by the Court 2. ACP/CPG dissolved and liquidated, if either spouse contracted marriage in bad faith, his/her share of net profits of ACP/CPG forfeited in favor of - common children - guilty spouse’s children - innocent spouse 3. donations (donation propter nuptias) shall remain valid except if the donee contracted marriage in bad faith 4. innocent may revoke designation of other spouse as beneficiary in insurance policy even if latter is irrevocable MARRIAGE Page 2 of 6
B Send duplicate and triplicate of marriage certificate to local civil registrar within 15d C Keep quadruplicate of marriage certificate, original ML and affidavit of wedding elsewhere (Art 8)
Grounds for Action
5. spouse who contracted subsequent marriage in bad faith disqualified to inherit from intestate and testate succession
3) Ceremony wherein both parties appear before a solemnizing officer and make personal declarations that they take each other as husband and wife, with at least two witness of legal age - Art 6 does not prescribe any form of ceremony as long as 1 personal appeared 2 declaration of taking each other as husband and wife in the presence of solemnizing officer 3 signing of marriage certificate 4 at least two witnesses of legal age - Art 8 places of solemnizing marriage 1 chambers of judge, open court, church, chapel, temple 2 office of consul-general, consul, viceconsul 3 EXCEPT when a) articulo mortis (Art 29) b) remote place (Art 29) c) both parties request in writing, sworn statement to solemnize somewhere else II. Art. 35 1. below 18 years old 2. solemnized by a person not legally authorized to perform marriage except in cases where either or both of the parties believe his authority in good faith 3. solemnized without valid marriage license unless marriage of exceptional character - Art 27 (articulo mortis: airplane chief, ship captain, A31 or military comm A32) - Art 28 (residence is isolated location) - Art 33 (Muslim or ethnic group) - Art 34 (cohabit for 5 years) 4. bigamous or polygamous except for Article 41 (absence) 5. contracted by mistake of identity 6. subsequent marriages that are void under Art 53 (noncompliance of filing the requirements for judgment of annulment or absolute nullity in Art 52) III. Art 36 (psychological incapacity)
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
MARRIAGE Page 3 of 6
Guidelines laid down in (Molina v CA) 1 burden of proof in the plaintiff 2 root cause must be medically/clinically identified and alleged in the complaint 3 exists at the time of the marriage 4 incurable 5 grave enough to bring about disability to perform marital obligations 6 marital obligation in Art 68-71, 220-221 & 225 of Family Code 7 decision of National Appellate Matrimonial Tribunal of Catholic Church 8 participation of prosecuting attorney to protect state interest in sanctity of family IV. Art 37 (incestuous marriages) 1. between ascendants and descendants 2. between brothers and sisters; halfblood or full-blood V. Art 38 (violation of public policy) 1. collateral blood relatives, illegitimate or legitimate, up to 4th degree 2. step-parents and step-children 3. parents-in-law and children-in-law 4. adopted parent and adopted child 5. surviving spouse of adopter and adopted child 6. surviving spouse of adopted child and adoptive parent 7. adopted children and legit children 8. adopted children of the same adopter 9. killed spouse (own or other) with the to intention to marry VI. Art 44 (subsequent marriage in the absence of spouse contracted in bad faith)
Defenses/ Ratification
Cannot be ratified
Art 45 1. party without parental consent, by cohabiting freely after attaining 21 2. only by insane spouse (sane cannot ratify because the defect in consent is with the insane) 3. victim of fraud, if freely cohabited after discovery of fraud 4. victim of force, if freely cohabited after cessation of force or undue influence STD and physical incapability not subject to ratification because incurable
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
Art 1. 2. 3.
56 condonation (forgiveness) consent (permission) connivance (3rd party and active participation) 4. recrimination (clean hands) 5. collusion (agreement bet spouses) 6. prescription (Art 57)
--
REQUISITES OF LEGAL SEPARATION Art 58 6 months cooling off period Art 59 steps to reconciliation Art 60 no stipulation of facts or confession of judgment accepted; participation of state in form of prosecuting attorney MARRIAGE Page 4 of 6
Pendency of Decree
No law for pendency
Art 50 Art 43 par 2, 3, 4, 5 (termination of subsequent marriage when spouse absent reappears) 2) ACP/CPG liquidated, partitioned and distributed; if bad faith, forfeit share of net profit in favor of: common children, guilty party’s children and in default of children, innocent spouse 3) donation propter nuptias are valid, except for bad faith 4) revoke the designation of other spouse as beneficiary in insurance even if irrevocable (specific prevails over gen) 5) bad faith disqualified from inheriting from innocent spouse by testate and intestate succession
Effects of Action
Art 44 marriage contracted by both in bad faith donations by reason of marriage revoked by law Art 371, CC In annulment If wife is guilty, she resumes maiden name If wife is innocent, she has the option to go back or retain UNLESS a) Court says otherwise b) husband remarries
Art 49 In the absence of written agreement bet spouses Court shall provide for the ff: 1. support of the spouses 2. custody and support of common children as well as visitation rights of other parent Art 50 Art 43 par (2, 3, 4, 5) 1. liquidation, partition and distribution of properties 2. custody and support of common children 3. delivery of their presumptive legitimes 4. creditors notified 5. conjugal dwelling and lot goes to parent having choice custody of majority of common children, below seven chose mother (Art 102 & 129) unless adjudicated in previous judicial proceedings Art 51 Presumptive legitimes of children computed from time of judgment delivered in cash, property or sound securities child or guardian may ask for enforcement of judgment shall not prejudice the ultimate successional rights of children Art 52 Recorded in the civil registry and registries of properties: Judgment of annulment or of absolute nullity Partition, distribution of properties Delivery of children’s presumptive legitimes or else not affect third persons
Art 61 Effects of Filing of Petition: 1. entitled to live separately 2. designate third party for administration of ACP/CPG Art 62 Art 49 applies moral and material well being of children taken into consideration children’s choice of parent Art 63 1. live separately but marriage bonds not severed 2. ACP/CPG dissolved and liquidated but offender has no right to net profits, forfeited in favor of A43(2) 3. custody of minor children awarded to innocent spouse, subject to Art 213 (parental authority designated by court, take consideration all relevant info and choice of child unless unfit) 4. offender disqualified from inheriting by both intestate and testate Art 64 innocent may revoke all donation from offender, like insurance policy registered lien or alienation must be respected action to revoke donation brought within 5 years Art 372, CC Wife’s mandatory retention of name prior to legal separation because affected no change to her marital status
--
Art 100/Art 127 De facto separation shall not affect ACP/CPG except that 1. spouse who leaves conjugal home or refuses to live there shall not have right to be supported 2. consent of one spouse to transaction of the other, judicial authorization may be obtained in summary proceeding (Art 239) 3. absence of sufficient CPG, separate property of both spouses shall be solidarily liable for the support of the family. Spouse present shall be given judicial authority to administer or encumber specific separate property Art 239 petition for judicial authorization when consent of spouse is withheld or cannot be obtained Art 242 spouse shall be notified by the petition, ordering to show cause why it should not be granted. To be served at the last known address of spouse Art 213 (parental authority designated by court, take consideration all relevant info and choice of child unless unfit)
Art 53 either of the former spouse may remarry but failure to comply with Art 52 renders subsequent marriage null & void Art 65 Joint manifestation under oath filed in the same court of legal separation
Convalidation/ Reconciliation
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
--
Art 45 Except for physical incapacity to consummate marriage and STD, grounds are convalidated by free cohabitation
Art 66 Reconciliation shall have the following effects: 1. if legal separation still pending, shall be terminated at whatever stage 2. if final decree, shall be set aside but separation of property and forfeiture of guilty spouse’s share
--
MARRIAGE Page 5 of 6
subsist unless spouses agree to revive former regime Art 67 Former property relations may be revived, but requires a statement accomplished under oath and filed in the same court as the proceedings for separation shall specify the ff: 1. Properties contributed anew 2. Properties to remain separate 3. Names of all known creditors and amounts owed
VOIDABLE MARRIAGES GROUNDS 18-21 BUT NO PARENT CONSENT
UNSOUND MIND
WHO CAN FILE?
WHEN TO FILE?
WHO CAN RATIFY?
HOW TO RATIFY?
Parent who didn’t give consent Party without parent’s consent Sane and unknowing spouse
Before the party reaches 21 Within 5 years after turning 21
Party without parent consent
Free cohabitation after attaining age 21
Insane spouse only (because the defect of consent is with him)
Free cohabitation after regaining sanity
Injured party
Free cohabitation
Legal guardian of insane Insane spouse
Anytime before death of either party During lucid interval or after regaining sanity
CONSENT OBTAINED BY FRAUD
Within 5 yrs after discovery of fraud
CONSENT OBTAINED BY FORCE, UNDUE INFLUENCE AND INTIMIDATION
Within 5 yrs after cessation of force, etc Injured party
INCURABLE PHYSICAL INCAPACITY INCURABLE AND SERIOUS SEXUALLY TRANSMITTED DISEASE
Karichi E. Santos | UP Law B2012 PFR0809 - Prof. E. A. Pangalangan
Within 5 yrs after marriage
Cannot be ratified because ratification only cures defect in CONSENT and not PHYSICAL
MARRIAGE Page 6 of 6
