Persons

Civil personality
Distinguish juridical capacity from capacity to act.
Juridical capacity is the fitness to be the subject of legal relations while capacity
to act is the power or to do acts with legal effect. The former is inherent in every natural
person and is lost only through death while the latter is merely acquired and may be lost
even before death (Art. 37, NCC).
Juridical capacity, as distinguished from capacity to act: (a) the former is passive
while the latter is active, (b) the former is inherent in a person while the latter is merely
acquired, (c) the former is lost only through death while the latter may be lost through
death or restricted by causes other than death, and Id) the former can exist without
capacity to act while the latter cannot exist without juridical capacity.

Elated that her sister who had been married for five years was pregnant for the first
time, Alma donated 100,000 to the unborn child. Unfortunately, the baby died one hour
after delivery. May Alma recover the 100,000 that she had donated to said baby before
it was born considering that the baby died? Stated otherwise, is the donation valid and
binding? Explain.
The donation is valid and binding, being an act favorable to the unborn child, but
only if the baby had an intra-uterine life of not less than seven months and pro-vided
there was due acceptance of the donation by the proper person representing said child.
If the child had less than seven months of intra-uterine life, it is not deemed born since it
died less than 24 hours following its delivery, in which ease the donation never became
effective since the donee never became a person, birth being determinative of
personality.

At age 18, Marian found out that she was pregnant. She insured her own life and
named her unborn child as her sole beneficiary. When she was already due to give
birth, she and her boyfriend Pietro, the
father of her unborn child, were kidnapped in a resort in Bataan where they were
vacationing. The military gave chase and after one week, they were found in an
abandoned hut in Cavite. Marian and Pietro were hacked with bolos. Marian and the
baby delivered were both found dead, with the baby's umbilical cord already cut. Pietro
survived. Can Marian's baby be the beneficiary of the insurance taken on the life of the
mother?
Yes, the baby can be the beneficiary of the life insurance of Marian. Art. 40 NCC
provides that "birth determines personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided that it be born later with the
conditions specified in Art. 41. Article 41 states that "for civil purposes, the fetus shall be
considered born if it is alive at the time it is completely delivered from the mother's
womb. However, if the fetus had an intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four (24) hours after its complete delivery from the
maternal womb. The act of naming the unborn child as sole beneficiary in the insurance
is favorable to the conceived child and therefore the fetus acquires presumptive or
provisional personality. However, said presumptive personality only becomes
conclusive if the child is born alive. The child need not survive for twenty-four (24) hours
as required under Art. 41 of the Code because "Marian was already due to give birth,"
indicating that the child was more than seven months old.

Ricky donated P 1 Million to the unborn child of his pregnant girlfriend, which she
accepted. After six (6) months of pregnancy, the fetus was born and baptized as
Angela. However, Angela died 20 hours after birth. Ricky sought to recover the P 1
Million. Is Ricky entitled to recover? Explain.
Yes, Ricky is entitled to recover the P1,000,000.00. The NCC considers a fetus a
person for purposes favorable to it provided it is born later in accordance with the
provision of the NCC. While the donation is favorable to the fetus, the donation did not
take effect because the fetus was not born in accordance with the NCC.
To be considered born, the fetus that had an intrauterine life of less than seven
(7) months should live for 24 hours from its complete delivery from the mother’s womb.
Since Angela had an intrauterine life of less than seven (7) months but did not live for
24 hours, she was not considered born and, therefore, did not become a person. Not
being a person, she has no juridical capacity to be a donee, hence, the donation to her
did not take effect. The donation not being effective, the amount donated may be
recovered. To retain it will be unjust enrichment.

Use of surnames
May an illegitimate child, upon adoption by her natural father, use the surname of her
natural mother as the middle name?
Yes, an illegitimate child, upon adoption by her natural father, can use the
surname of her natural mother as her middle name. The Court has ruled
that there is no law prohibiting an illegitimate child adopted by her natural father to use,
as middle name, her mother's surname. What is not prohibited is allowed. After all, the
use of the maternal name as the middle name is in accord with Filipino culture and
customs and adoption is intended for the benefit of the adopted.

Honorato filed a petition to adopt his minor illegitimate child Stephanie, alleging that
Stephanie’s mother is Gemma Astorga Garcia; that Stephanie has been using her
mother’s middle name and surname; and that he is now a widower and qualified to be
her adopting parent. He prayed that Stephanie’s middle name be changed from
"Astorga" to "Garcia," which is her mother’s surname and that her surname "Garcia" be
changed to "Catindig," which is his surname. This the trial court denied. Was the trial
court correct in denying Hororato’s request for Stephanie’s use of her mother’s surname
as her middle name? Explain.
No, the trial court was not correct. There is no law prohibiting an illegitimate child
adopted by his natural father to use as middle name his mother’s surname. The law is
silent as to what middle name an adoptee may use. According to the Supreme Court
the adopted child may use the surname of the natural mother as his middle name
because there is no prohibition in the law against it. Moreover, it will also be for the
benefit of the adopted child who shall preserve his lineage on his mother’s side and
reinforce his right to inherit from his mother and her family. Lastly, it will make the
adopted child conform with the time-honored Filipino tradition of carrying the mother’s
surname as the person’s middle name.
Entries in the Civil Registry and Clerical Error Law (RA 9048, as amended)
Zirxthoussous delos Santos filed a petition for change of name with the Office of the
Civil Registrar of Mandaluyong City under the administrative proceeding provided in
Republic Act No. 9048. He alleged that his first name sounds ridiculous and is
extremely difficult to spell and pronounce. After complying with the requirements of the
law, the Civil Registrar granted his petition and changed his first name Zirxthoussous to
"Jesus." His full name now reads "Jesus delos Santos." Jesus delos Santos moved to
General Santos City to work in a multi-national company. There, he fell in love and
married Mary Grace delos Santos. She requested him to have his first name changed
because his new name "Jesus delos Santos" is the same name as that of her father
who abandoned her family and became a notorious drug lord. She wanted to forget him.
Hence, Jesus filed another petition with the Office of the Local Civil Registrar to change
his first name to "Roberto." He claimed that the change is warranted because it will
eradicate all vestiges of the infamy of Mary Grace's father. Will the petition for change of
name of Jesus delos Santos to Roberto delos Santos under Republic Act No. 9048
prosper? Explain.
No, under the law, Jesus may only change his name once. In addition, the
petition for change of name may be denied on the following grounds:
(1) Jesus is neither ridiculous, nor tainted with dishonor nor extremely difficult to
write or pronounce.
(2) There is no confusion to be avoided or created with the use of the registered
first name or nickname of the petitioner.
(3) The petition involves the same entry in the same document, which was
previously corrected or changed under this Order.

What entries in the Civil Registry may be changed or corrected without a judicial order?
Clerical or typographical errors and change of first name or nickname, the day
and month in the date of birth or sex of a person where it is patently clear that there was
a clerical or typographical error or mistake in the entry may be changed or corrected
without a judicial order under RA 9048, as amended.
Clerical or typographical error refers to a mistake committed in the performance
of clerical work in writing, copying, transcribing or typing an entry in the civil register that
is harmless and innocuous, such as misspelled name or misspelled place of birth,
mistake in the entry of day and month in the date of birth or the sex of the person or the
like, which is visible to the eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or records: Provided, however,
That no correction must involve the change of nationality, age, or status of the
petitioner.

Gianna was born to Andy and Aimee, who at the time Gianna's birth were not married to
each other. While Andy was single at the time, Aimee was still in the process of
securing a judicial declaration of nullity on her marriage to her ex-husband. Gianna's
birth certificate, which was signed by both Andy and Aimee, registered the status of
Gianna as "legitimate", her surname carrying that of Andy's and that her parents were
married to each other. Can a judicial action for correction of entries in Gianna's birth
certificate be successfully maintained to: Change her status from "legitimate" to
"illegitimate" and change her surname from that of Andy's to Aimee's maiden surname?
Yes, a judicial action for correction of entries in Gianna's birth certificate can be
successfully maintained to change (a) her status from "legitimate" to "illegitimate," and
(b) her surname from that of Andy's to Aimee's maiden surname in accordance with
Rule 108 of the Rules of Court because said changes are substantive corrections.

Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year old
girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital
and other medical expenses in delivering the child by caesarean section; moral,
claiming that Rodolfo promised to marry her, representing that he was single when, in
fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios. Suppose
Rodolfo later on acknowledges Rona and gives her regular support, can he compel her
to use his surname? Why or why not?
No. he has no right to compel Rona to use his surname. The law does not give
him the right simply because he gave her support (RA 9255).
Under the Family Code, an illegitimate child was required to use only the
surname of the mother. Under RA 9255, otherwise known as the Revilla law, however,
the illegitimate child is given the option to use the surname of the illegitimate father
when the latter has recognized the former in accordance with law. Since the choice
belongs to the illegitimate child, Rodolfo cannot compel Rona, if already of age, to use
the surname against her will. If Rona is still a minor, to use the surname of Rodolfo will
require the consent of Rona's mother who has sole parental authority over her.

Absence
Civil code provisions
Article 381. When a person disappears from his domicile, his whereabouts being
unknown, and without leaving an agent to administer his property, the judge, at the
instance of an interested party, a relative, or a friend, may appoint a person to represent
him in all that may be necessary.
This same rule shall be observed when under similar circumstances the power
conferred by the absentee has expired.
Article 382. The appointment referred to in the preceding article having been made, the
judge shall take the necessary measures to safeguard the rights and interests of the
absentee and shall specify the powers, obligations and remuneration of his
representative, regulating them, according to the circumstances, by the rules
concerning guardians.
Article 383. In the appointment of a representative, the spouse present shall be
preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent
person may be appointed by the court.
Article 384. Two years having elapsed without any news about the absentee or since
the receipt of the last news, and five years in case the absentee has left a person in
charge of the administration of his property, his absence may be declared.
Article 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated to
the condition of his death.
Article 386. The judicial declaration of absence shall not take effect until six months
after its publication in a newspaper of general circulation.

Presumptive death of absent spouse under the Family Code

Jaime, who is 65, and his son, Willy, who is 25, died in a plane crash. There is no proof
as to who died first. Jaime's only surviving heir is his wife, Julia, who is also Willy's
mother. Willy's surviving heirs are his mother, Julia and his wife, Wilma. In the
settlement of Jaime's estate, can Wilma successfully claim that her late husband, Willy
had a hereditary share since he was much younger than his father and, therefore,
should be presumed to have survived longer?
No, Wilma cannot successfully claim that Willy had a hereditary share in his
father's estate. Under Art. 43, Civil Code, two persons "who are called to succeed each
other" are presumed to have died at the same time, in the absence of proof as to which
of them died first. This presumption of simultaneous death applies in cases involving the
question of succession as between the two who died, who in this case are mutual heirs,
being father and son.

Suppose Jaime had a life insurance policy with his wife, Julia, and his son, Willy, as the
beneficiaries. Can Wilma successfully claim that one-half of the proceeds should belong
to Willy's estate?
Yet, Wilma can invoke the presumption of survivorship and claim that one-half of
the proceeds should belong to Willy's estate, under Sec. 3 (jj) par. 5 Rule 131, Rules of
Court, as the dispute does not involve succession. Under this presumption, the person
between the ages of 15 and 60 years is deemed to have survived one whose age was
over 60 at the time of their deaths. The estate of Willy endowed with juridical personality
stands in place and stead of Willy, as beneficiary.

Mr. and Mrs. Cruz, who are childless, met with a serious motor vehicle accident with Mr.
Cruz at the wheel and Mrs. Cruz seated beside him, resulting in the instant death of Mr.
Cruz. Mrs. Cruz was still alive when help came but she also died on the way to the
hospital. The couple acquired properties worth One Million (P1 ,000,000.00) Pesos
during their marriage, which are being claimed by the parents of both spouses in equal
shares. Is the claim of both sets of parents valid and why?
No, the claim of both parents is not valid. When Mr. Cruz died, he was
succeeded by his wife and his parents as his intestate heirs who will share his estate
equally. His estate was 0.5 Million pesos which is his half share in the absolute
community amounting to 1 Million Pesos. His
wife, will, therefore, inherit O.25 Million Pesos and his parents will inherit 0.25 Million
Pesos. When Mrs. Cruz died, she was succeeded by her parents as her intestate heirs.
They will inherit all of her estate consisting of her 0.5 Million half share in the absolute
community and her 0.25 Million inheritance from her husband, or a total of 0.750 Million
Pesos. In sum, the parents of Mr. Cruz will inherit 250,000 Pesos while the parents of
Mrs. Cruz will inherit 750,000 Pesos.

Suppose in the preceding question, both Mr. and Mrs. Cruz were already dead when
help came, so that no-body could say who died ahead of the other, would your answer
be the same to the question as to who are entitled to the properties of the deceased
couple?
This being a case of succession, in the absence of proof as to the time of death
of each of the spouses, it is presumed they died at the same time and no transmission
of rights from one to the other is deemed to have taken place. Therefore, each of them
is deemed to have an estate valued at P500,000,00, or one-half of their conjugal
property of P1 million. Their respective parents will thus inherit the entire P1 Million in
equal shares, of P500,000.00 per set of parents.

Cristy and her late husband Luis had two children, Rose and Patrick, One summer, her
mother-in-law, aged 70, took the two children, then aged 10 and 12, with her on a boat
trip to Cebu. Unfortunately, the vessel sank en route, and the bodies of the three were
never found. None of the survivors ever saw them on the water. On the settlement of
her mother-in-law's estate, Cristy files a claim for a share of her estate on the ground
that the same was inherited by her children from their grandmother in representation of
their father, and she inherited the same from them. Will her action prosper?
No, her action will not prosper. Since there was no proof as to who died first, all
the three are deemed to have died at the same time and there was no transmission of
rights from one to another, applying Article 43 of the New Civil Code.

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.
How does the 1987 Constitution strengthen the family as an Institution?
A. Sec, 2, Article II of the Constitution provides that: The State recognizes the
sanctity of family life and shall protect and strengthen the family as a basic autonomous
social institution. It shall equally protect the life of the mother and the life of the unborn
from conception. The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive the
support of the Government.
Section I, Article XV, further provides that: The State recognizes the Filipino
family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and
actively promote its total development.

Do the Constitutional policy on the family and the provision that marriage is the
foundation of the family and shall be protected by the State bar Congress from enacting
a law allowing divorce in the Philippines?
 No, the Constitutional policy, as well as the supporting provision, does not
amount to a prohibition to Congress to enact a law on divorce. The Constitution only
meant to help the marriage endure, to "strengthen its solidarity and actively promote its
total development."

Requisites of marriage
Isidro and Irma, Filipinos, both 18 years of age, were passengers of Flight No. 317 of
Oriental Airlines. The plane they boarded was of Philippine registry. While en route from
Manila to Greece some passengers hijacked the plane, held the chief pilot hostage at
the cockpit and ordered him to fly instead to Libya. During the hijacking Isidro suffered a
heart attack and was on the verge of death. Since Irma was already eight months
pregnant by Isidro, she pleaded to the hijackers to allow the assistant pilot to solemnize
her marriage with Isidro. Soon after the marriage, Isidro expired. As the plane landed in
Libya Irma gave birth. However, the baby died a few minutes after complete delivery.
Back in the Philippines Irma immediately filed a claim for inheritance. The parents of
Isidro opposed her claim contending that the marriage between her and Isidro was void
ab initio on the following grounds: they had not given their consent to the marriage of
their son.
The fact that the parents of Isidro and of Irma did not give their consent to the
marriage did not make the marriage void ab initio. The marriage is merely voidable
under Art 45 of the FC.

There was no marriage license.

Absence of marriage license did not make the marriage void ab initio. Since the
marriage was solemnized in articulo mortis, it was exempt from the license requirement
under Art. 31 of the FC.

The solemnizing officer had no authority to perform the marriage;

On the assumption that the assistant pilot was acting for and in behalf of the
airplane chief who was under disability, and by reason of the extraordinary and
exceptional circumstances of the case, i.e. hostage situation, the marriage was
solemnized by an authorized officer under Art. 7 (3) and Art. 31. of the FC.

The solemnizing officer did not file an affidavit of marriage with the proper civil registrar.
Failure of the solemnizing officer to file the affidavit of marriage did not affect the
validity of the marriage. It is merely an irregularity which may subject the solemnizing
officer to sanctions.

What is the status of the following marriages and why? A marriage between two 19-year
old without parental consent.
The marriage is voidable. The consent of the parties to the marriage was
defective. Being below 21 years old, the consent of the parties is not full without the
consent of their parents. The consent of the parents of the parties to the marriage is
indispensable for its validity.

A marriage between two 21-year olds without parental advice.

 Between 21-year olds, the marriage is valid despite the absence of parental
advice, because such absence is merely an irregularity affecting a formal requisite i.e.,
the marriage license and does not affect the validity of the marriage itself. This is
without prejudice to the civil, criminal, or administrative liability of the party responsible
therefor.

A marriage between two Filipino first cousins in Spain where such marriage is valid.
By reason of public policy, the marriage between Filipino first cousins is void [Art.
38, par. (1), Family Code], and the fact that it is considered a valid marriage in a foreign
country in this case, Spain— does not validate it, being an exception to the general rule
in Art. 96 of said Code which accords validity to all marriage solemnized outside the
Philippine and valid there as such.

A marriage between two Filipinos in Hongkong before a notary public.

It depends. If the marriage before the notary public is valid under Hongkong Law,
the marriage is valid in the Philippines. Otherwise, the marriage that is invalid in
Hongkong will be invalid in the Philippines.

A marriage solemnized by a town mayor three towns away from his jurisdiction.
Under the Local Government Code, a town mayor may validly solemnize a
marriage but said law is silent as to the territorial limits for the exercise by a town mayor
of such authority. However, by analogy, with the authority of members of the Judiciary
to solemnize a marriage, it would seem that the mayor did not have the requisite
authority to solemnize a marriage outside of his territorial jurisdiction. Hence, the
marriage is void, unless it was contracted with either or both parties believing in good
faith that the mayor had the legal authority to solemnize this particular marriage
(Art 35, par 2 Family Code).

On Valentine's Day 1996, Ellas and Fely, both single and 25 years of age, went to the
city hall where they sought out a fixer to help them obtain a quickie marriage. For a fee,
the fixer produced an ante-dated marriage license for them, Issued by the Civil
Registrar of a small remote municipality. He then brought them to a licensed minister in
a restaurant behind the city hall, and the latter solemnized their marriage right there and
then. Is their marriage valid, void or voidable? Explain.
The marriage is valid. The irregularity in the issuance of a valid license does not
adversely affect the validity of the marriage. The marriage license is valid because it
was in fact issued by a Civil Registrar (Arts. 3 and 4. FC).

Would your answer be the same if it should turn out that the marriage license was
spurious? Explain.
No, the answer would not be the same. The marriage would be void because of
the absence of a formal requisite. In such a case, there was actually no valid marriage
license.
The complete publication of the Family Code was made on August 4, 1987. On
September 4, 1987, Junior Cruz and Gemma Reyes were married before a municipal
mayor. Was the marriage valid?
Yes, the marriage is valid. The Family Code took effect on August 3, 1988. At the
time of the marriage on September 4, 1987, municipal mayors were empowered to
solemnize marriage under the Civil Code of 1950.

Suppose the couple got married on September 1, 1994 at the Manila Hotel before the
Philippine Consul General to Hongkong, who was on vacation in Manila. The couple
executed an affidavit consenting to the celebration of the marriage at the Manila Hotel.
Is the marriage valid?
The marriage is not valid. Consuls and vice-consuls are empowered to solemnize
marriages between Philippine citizens abroad in the consular office of the foreign
country to which they were assigned and have no power to solemnize marriage on
Philippine soil.
A Philippine consul is authorized by law to solemnize marriages abroad between
Filipino citizens. He has no authority to solemnize a marriage in the Philippines.
Consequently, the marriage in question is void, unless either or both of the contracting
parties believed in good faith that the consul general had authority to solemnize their
marriage in which case the marriage is valid.

A and B, both 18 years old, were sweethearts studying in Manila. On August 3, 1988,
while in first year college, they eloped. They stayed in the house of a mutual friend in
town X, where they were able to obtain a marriage license. On August 30, 1988, their
marriage was solemnized by the town mayor of X in his office. Thereafter, they returned
to Manila and continued to live separately in their respective boarding houses,
concealing from their parents, who were living in the province what they had done. In
1992, after graduation from college, A and B decided to break their relation and parted
ways. Both went home to their respective towns to live and work. Was the marriage of A
and B solemnized on August 30, 1988 by the town mayor of X in his office a valid
marriage? Explain your answer.
The marriage of A and B is void because the solemnizing officer had no legal
authority to solemnize the marriage. But if either or both parties believed in good faith
that the solemnizing officer had the legal authority to do so, the marriage is voidable
because the marriage between the parties, both below 21 years of age, was solemnized
without the consent of the parents. (Art. 35, par. (2) and Art. 45 par. (1), Family Code)

Can either or both of them contract marriage with another person without committing
bigamy? Explain your answer.
Either or both of the parties cannot contract marriage in the Philippines with
another person without committing bigamy, unless there is compliance with the
requirements of Article 52 Family Code, namely: there must be a judgment of
annulment or absolute nullity of the marriage, partition and distribution of the properties
of the spouses and the delivery of their children's presumptive legitimes, which shall be
recorded in the appropriate Civil Registry and Registry of Property, otherwise the same
shall not affect third persons and the subsequent marriage shall be null and void. (Arts.
52 and 53. Family Code).

Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16
years old, they started to live together as husband and wife without the benefit of
marriage. When Faye reached 18 years of age, her parents forcibly took her back and
arranged for her marriage to Brad. Although Faye lived with Brad after the marriage,
Roderick continued to regularly visit Faye while Brad was away at work. During their
marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad
discovered her continued liason with Roderick and in one of their heated arguments,
Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a
marriage license, claiming that they have been continuously cohabiting for more than 5
years.
Was the marriage of Roderick and Faye valid?
No. The marriage of Roderick and Faye is not valid. Art. 4, FC provides that the
absence of any of the essential or formal requisites renders the marriage void ab initio.
However, 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 5 years and without any legal
impediment to marry each other. This five- year period is characterized by exclusivity
and continuity. In the present case, the marriage of Roderick and Faye cannot be
considered as a marriage of exceptional character, because there were 2 legal
impediments during their cohabitation: minority on the part of Faye, during the first two
years of cohabitation; and, lack of legal capacity, since Faye married Brad at the age of
18. The absence of a marriage license made the marriage of Faye and Roderick void ab
initio.

Exemption from license requirement.

On May 1, 1978 Facundo married Petra, by whom he had a son Sotero. Petra died on
July 1, 1996, while Facundo died on January 1, 2002. Before his demise, Facundo had
married, on July 1, 2002, Quercia. Having lived together as husband and wife since July
1, 1990, Facundo and Quercia did not secure a marriage license but executed the
requisite affidavit for the purpose. To ensure that his inheritance rights are not adversely
affected by his father second marriage, Sotero now brings a suit to seek a declaration of
the nullity of the marriage of Facundo and Quercia, grounded on the absence of a valid
marriage license. Quercia contends that there was no need for a marriage license in
view for her having lived continuously with Facundo for five years before their marriage
and that has Sotero has no legal personality to seek a declaration of nullity of the
marriage since Facundo is now deceased. Is the marriage of Facundo and Quercia
valid, despite the absence of a marriage license? Explain.
The marriage with Quercia is void. The exemption from the requirement of a
marriage license under Art, 34, Family Code, requires that the man and woman must
have lived together as husband and wife for at least five years and without any legal
impediment to marry each other during those five years. The cohabitation of Facundo
and Quercia for six years from 1990 to July 1, 1996 when Petra died was one with a
legal impediment hence, not in compliance with the requirement of law. On other hand,
the cohabitation thereafter until the marriage on July 1, 2000, although free from legal
impediment, did not meet the 5-year cohabitation requirement.

Does Sotero have the personality to seek the declaration of nullity of the marriage,
especially now that Facundo is already deceased? Explain.
A void marriage may be questioned by any interested party in any proceeding
where the resolution of the issue is material. Being a compulsory heir, Soterro has the
personality to question the validity of the marriage of Facundo and Quercia. Otherwise,
his participation in the estate on Facundo would be affected.

Marriages solemnized abroad and foreign divorce

The marriage of H and W was annulled by the competent court. Upon finality of the
judgment of nullity. H began looking for his prospective second mate. He fell in love with
a sexy woman S who wanted to be married as soon as possible, i.e., after a few months
of courtship. As a young lawyer, you were consulted by H, how soon can H be joined in
lawful wedlock to his girlfriend S? Under existing laws, are there certain requisites that
must be complied with before he can remarry? What advice would you give H?
H, or either spouse for that matter, can marry again after complying with the
provisions of Article 52 of the Family Code, namely, there must be a partition and
distribution, of the properties of the spouses, and the delivery of the children's
presumptive legitime which should be recorded in the appropriate civil registry and
registries of property. H should be so advised.

Suppose that children were born from the union of H and W, what would be the status
of said children? Explain your answer.
The children born from the union of H and W would be legitimate children if
conceived or born before the decree of annulment of the marriage (under Art. 45 of the
Family Code) has become final and executory (Art. 54, Family Code).

If the subsequent marriage of H to S was contracted before compliance with the

statutory condition for its validity, what are the rights of the children of the first marriage
(i.e., of H and W) and of the children of the subsequent marriage (of H and S)?
The children of the first marriage shall be considered legitimate children if
conceived or born before the Judgment of annulment of the marriage of H and W has
become final and executory. Children conceived or born of the subsequent marriage
shall likewise be legitimate even if the marriage of H and S be null and void for failure to
comply with the requisites of Article 52 of the Family Code (Article 53, Family Code). As
legitimate children, they have the following rights;
a) To bear the surnames of the father and the mother in conformity with the provisions
of the Civil Code on Surnames;
b) 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
c) To be entitled to the legitime and other successional rights granted to them by the
Civil Code (Article 174, Family Code).
One of the grounds for annulment of marriage is that either party, at the time of their
marriage was afflicted with a sexually-transmissible disease, found to be serious and
appears incurable. Two (2) years after their marriage, which took place on 10 October
1988, Bethel discovered that her husband James has a sexually-transmissible disease
which he contracted even prior to their marriage although James did not know it himself
until he was examined two [2) years later when a child was already born to them. Bethel
sues James for annulment of their marriage. James opposes the annulment on the
ground that he did not even know that he had such a disease so that there was no fraud
or bad faith on his part. Decide.
The marriage can be annulled, because good faith is not a defense when the
ground is based upon sexually-transmissible disease on the part of either party.

Suppose that both parties at the time of their marriage were similarly afflicted with
sexually-transmissible diseases, serious and incurable, and both knew of their
respective infirmities, can Bethel or James sue for annulment of their marriage?
Yes, the marriage can still be annulled because the fact that both of them are
afflicted with sexually-transmissible diseases does not efface or nullity the ground.

Maria and Luis, both Filipinos, were married by a Catholic priest in Lourdes Church,
Quezon City in 1976, Luis was drunk on the day of his wedding. In fact, he slumped at
the altar soon after the ceremony. After marriage, Luis never had a steady job because
he was drunk most of the time. Finally, he could not get employed at all because of
drunkenness. Hence, it was Maria who had to earn a living to support herself and her
child begotten with Luis. In 1986, Maria filed a petition in the church matrimonial court in
Quezon City to annul her marriage with Luis on the ground of psychological incapacity
to comply with his marital obligation. Her petition was granted by the church matrimonial
court. Can Maria now get married legally to another man under Philippine laws after her
marriage to Luis was annulled by the church matrimonial court? Explain.
No, Maria cannot validly contract a subsequent marriage without a court
declaration of nullity of the first marriage. The law does not recognize the church
declaration of nullity of a marriage.

What must Maria do to enable her to get married lawfully to another man under
Philippine laws?
To enable Maria to get married lawfully to another man. she must obtain a
judicial declaration of nullity of the prior marriage under Article 36 Family Code.

Bert and Baby were married to each other on December 23, 1988. Six months later, she
discovered that he was a drug addict. Efforts to have him rehabilitated were
unsuccessful. Can Baby ask for annulment of marriage, or legal separation? Explain.
No, Baby cannot ask for annulment of her marriage or for legal separation
because both these actions had already prescribed.
While concealment of drug addiction existing at the time of marriage constitutes
fraud under Art. 46 of the FC which makes the marriage voidable under Art. 45 of the
FC, the action must, however, be brought within 5 years from the discovery thereof
under Article 47(3), FC, Since the drug addiction of Bert was discovered by Baby in
June 1989, the action had already prescribed in June of 1994. Although drug addiction
is a ground for legal separation under Art. 55(5) and Art. 57 of the FC requires that the
action must be brought within 5 years from the occurrence of the cause. Since Bert had
been a drug addict from the time of the celebration of the marriage, the action for legal
separation must have been brought not later than 23 December 1993. Hence, Baby
cannot, now, bring the action for legal separation.

D and G, age 20 and 19, respectively, and both single, eloped and got married to each
other without parental consent in the case of G, a teenaged student of an exclusive
college for girls. Three years later, her parents wanted to seek judicial annulment on
that ground. You were consulted and asked to prepare the proper complaint. What
advice would you give G's parents? Explain your answer.
G himself should file the complaint under Article 45 of the Family Code, and no
longer the parents because G is already 22 years of age.

Yvette was found to be positive for HIV virus, considered sexually transmissible, serious
and incurable. Her boyfriend Joseph was aware of her condition and yet married her.
After two (2) years of cohabiting with Yvette, and in his belief that she would probably
never be able to bear him a healthy child, Joseph now wants to have his marriage with
Yvette annulled. Yvette opposes the suit contending that Joseph is estopped from
seeking annulment of their marriage since he knew even before their marriage that she
was afflicted with HIV virus. Can the action of Joseph for annulment of his marriage with
Yvette prosper? Discuss fully.
No, Joseph knew that Yvette was HIV positive at the time of the marriage. He is,
therefore, not an injured party. The FC gives the right to annul the marriage only to an
injured party. [Art. 47 (5), FC].

In 1989, Maris, a Filipino citizen, married her boss Johnson, an American citizen, in
Tokyo in a wedding ceremony celebrated according to Japanese laws. One year later,
Johnson returned to his native Nevada, and he validly obtained in that state an absolute
divorce from his wife Maris. After Maris received the final judgment of divorce, she
married her childhood sweetheart Pedro, also a Filipino citizen, in a religious ceremony
in Cebu City, celebrated according to the formalities of Philippine law. Pedro later left for
the United States and became naturalized as an American citizen. Maris followed Pedro
to the United States, and after a serious quarrel, Marts filed a suit and obtained a
divorce decree issued by the court in the state of Maryland. Maris then returned to the
Philippines and in a civil ceremony celebrated in Cebu City according to the formalities
of Philippine law, she married her former classmate Vincent likewise a Filipino citizen.
Was the marriage of Maris and Pedro valid when celebrated? Is their marriage still valid
existing now? Reasons.
The marriage of Maris and Pedro was valid when celebrated because the divorce
validly obtained by Johnson in Manila capacitated Maris to marry Pedro. The marriage
of Maris and Pedro is still validly existing, because the marriage has not been validly
dissolved by the Maryland divorce [Art. 26, Family Code).
Was the marriage of Marts and Vincent valid when celebrated? Is their marriage still
validly existing now? Reasons.
The marriage of Maris and Vincent is void ab initio because it is a bigamous
marriage contracted by Maris during the subsistence of her marriage with Pedro (Art 25
and 41, Family Code). The marriage of Maris and Vincent does not validly exist
because Article 26 does not apply. Pedro was not a foreigner at the time of his marriage
with marts and the divorce abroad (in Maryland) was initiated and obtained not by the
alien spouse, but by the Filipino spouse. Hence, the Maryland divorce did not capacitate
Marts to marry Vincent.

At this point in time, who is the lawful husband of Marts? Reasons.

At this point in time, Pedro is still the lawful husband of Maris because their valid
marriage has not been dissolved by any valid cause (Art. 26. Family Code).

In 1985, Sonny and Lulu, both Filipino citizens, were married in the Philippines. In 1987,
they separated, and Sonny went to Canada, where he obtained a divorce in the same
year. He then married another Filipina, Auring, in Canada on January 1,1988. They had
two sons, James and John. In 1990, after failing to hear from Sonny, Lulu married Tirso,
by whom she had a daughter, Verna. In 1991, Sonny visited the Philippines where he
succumbed to heart attack. Discuss the effect of the divorce obtained by Sonny
and Lulu in Canada.
The divorce is not valid. Philippine law does not provide for absolute divorce.
Philippine courts cannot grant it. A marriage between two (2) Filipinos cannot be
dissolved by a divorce obtained abroad. Philippine laws apply to Sonny and Lulu. Under
Article 15 of the New Civil Code, laws relating to family rights and duties, status, and
capacity of persons are binding upon citizens of the Philippines wherever they may be.
Thus, the marriage of Sonny and Lulu is still valid and subsisting.

Since the decree of divorce obtained by Lulu and Sony in Canada is not recognized
here in the Philippines, the marriage between Sonny and Auring is void. (Art. 35, Family
Code) Any marriage subsequently contracted during the lifetime of the first spouse shall
be illegal and void, subject only to the exception in the cases of absence or where the
prior marriage was dissolved or annulled. The marriage of Sonny and Auring does not
fall within the exception.

Explain the status of the marriage between Lulu and Tirso.

The marriage of Lulu and Tirso is also void. Mere absence of the spouse does
not give rise to a right of the present spouse to remarry. Article 41 of the Family Code
provides for a valid bigamous marriage only where a spouse has been absent for four
consecutive years before the second marriage and the present spouse had a well-
founded belief that the absent spouse is already dead.

Explain the respective filiation of James, John and Verna.

James, John and Verna are illegitimate children since their parents are not validly
married. Under Article 165 of the Family Code, children conceived and born outside a
valid marriage are illegitimate, unless otherwise provided in this Code.
Who are the heirs of Sonny? Explain.
Sonny's heirs include James, John, and Lulu. Article 887 of the Civil Code
provides that the compulsory heirs of the deceased are among others, his widow and
his illegitimate children. The widow referred to in Article 887 is the legal wife of the
deceased. Lulu is still a compulsory heir of Sonny because the divorce obtained by
Sonny in Canada cannot be recognized in the Philippines. The legitime of each
illegitimate child shall consist of one-half of the legitime of a legitimate child. (Art. 176,
Family Code).

Flor and Virgillo were married to each other in Roxas City in 198O. In 1984, Flor was
offered a teaching Job in Canada, which she accepted. In 1989, she applied for and
was granted Canadian citizenship. The following year, she sued for divorce from Virgilio
in a Canadian court. After Virgilio was served with summons, the Canadian court tried
the case and decreed the divorce. Shortly thereafter, Flor married a Canadian. Can
Virgilio marry again in the Philippines? Explain.
No, Virgilio cannot validly remarry. His case is not covered by Article 26 of the
Family Code, For said Article to be applicable, the spouse who filed for divorce must be
a foreigner at the time of the marriage. Since both of them were Filipinos at the time of
the marriage, the divorce obtained by Flor did not capacitate Virgilio to remarry. The fact
that Flor was already an alien at the time she obtained the divorce does not give Virgilio
the capacity to remarry under Philippine Law.

Ben and Eva were both Filipino citizens at the time of their marriage in 1967, When their
marriage turned sour, Ben went to a small country in Europe, got himself naturalized
there, and then divorced Eva in accordance with the law of that country, Later, he
returned to the Philippines with his new wife. Eva now wants to know what action or
actions she can file against Ben. She also wants to know if she can likewise marry
again. What advice can you give her?
Considering that Art. 26(2nd par.) contemplates a divorce between a foreigner
and a Filipino, who had such respective nationalities at the time of their marriage, the
divorce in Europe will not capacitate the Filipino wife to remarry. The advice we can give
her is either to file a petition for legal separation, on the ground of sexual infidelity and of
contracting a bigamous marriage abroad, or to file a petition to dissolve the conjugal
partnership or absolute community of property as the case maybe.
Eva may file an action for legal separation on the grounds of sexual infidelity of
her husband and the contracting by her husband of a bigamous marriage abroad.
She may remarry. While a strict interpretation of Article 26 of the Family Code
would capacitate a Filipino spouse to remarry only when the other spouse was a
foreigner at the time of the marriage, the DOJ has issued an opinion (Opinion 134 s. of
1993) that the same injustice sought to be cured by Article 26 is present in the case of
spouses who were both Filipino at the time of the marriage but one became an alien
subsequently. Said injustice is the anomaly of Eva remaining married to her husband
who is no longer married to her. Hence, said Opinion makes Article 26 applicable to her
case and the divorce obtained abroad by her former Filipino husband would capacitate
her to remarry. To contract a subsequent marriage, all she needs to do is present to the
civil registrar the decree of divorce when she applies for a marriage license under
Article 13 of the Family Code.

On the occasion of Digna's marriage to George, her father gave her a donation propter
nuptias of a car. Subsequently, the marriage was annulled because of the psychological
immaturity of George. May Digna's father revoke the donation and get back the car?
Explain.
No, Digna's father may not revoke the donation because Digna was not in bad
faith, applying Art. 86(3) of the Family Code.

Which of the following remedies, i.e., (a) declaration of nullity of marriage, (b) annulment
of marriage, (c) legal separation, and/or (d) separation of property, can an aggrieved
spouse avail himself/herself of If the wife discovers after the marriage that her husband
has aids.
Since AIDS is a serious and incurable sexually-transmissible disease, the wife
may file an action for annulment of the marriage on this ground whether such fact was
concealed or not from the wife, provided that the disease was present at the time of the
marriage. The marriage is voidable even though the husband was not aware that he
had the disease at the time of marriage.

Goes abroad to work as a nurse and refuses to come home after the expiration of her
three-year contract there.
If the wife refuses to come home for three (3) months from the expiration of her
contract, she is presumed to have abandoned the husband and he may file an action for
judicial separation of property. If the refusal continues for more than one year from the
expiration of her contract, the husband may file the action for legal separation under Art.
55 (10) of the Family Code on the ground of abandonment of petitioner by respondent
without justifiable cause for more than one year. The wife is deemed to have
abandoned the husband when she leaves the conjugal dwelling without any intention of
returning (Article 101, FC). The intention not to return cannot be presumed during the
30 year period of her contract.

If the husband discovers after the marriage that his wife has been a prostitute before
they got married.
If the husband discovers after the marriage that his wife was a prostitute before
they got married, he has no remedy. No misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute fraud as legal ground for an action for
the annulment of marriage (Article 46 FC).

If the husband has a serious affair with his secretary and refuses to stop
notwithstanding advice from relatives and friends.
The wife may file an action for legal separation. The husband’s sexual infidelity is
a ground for legal separation 9Article 55, FC). She may also file an action for judicial
separation of property for failure of her husband to comply with his martial duty of fidelity
(Article 135 (4), 101, FC).
If the husband beats up his wife every time he comes home drunk.
The wife may file an action for legal separation on the ground of repeated
physical violence on her person (Article 55 (1), FC). She may also file an action for
judicial separation of property for failure of the husband to comply with his marital duty
of mutual respect (Article 135 (4), Article 101, FC). She may also file an action for
declaration of nullity of the marriage if the husband’s behavior constitute psychological
incapacity existing at the time of the celebration of marriage.

Marvin, a Filipino, and Shelley, an American, both residents of California, decided to get
married in their local parish. Two years after their marriage, Shelley obtained a divorce
in California. While in Boracay, Marvin met Manel, a Filipina, who was vacationing
there. Marvin fell in love with her. After a brief courtship and complying with all the
requirements, they got married in Hongkong to avoid publicity, it being Marvin's second
marriage. Is his marriage to Manel valid? Explain.
Yes. The marriage will not fall under Art. 35(4) of the Family Code on bigamous
marriages, provided that Shelley obtained an absolute divorce, capacitating her to
remarry under her national law. Consequently, the marriage between Marvin and Manel
may be valid as long as it was solemnized and valid in accordance with the laws of
Hongkong [Art. 26, paragraphs 1 and 2, Family Code].

Emmanuel and Margarita, American citizens and employees of the U.S. State
Department, got married in the African state of Kenya where sterility is a ground for
annulment of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in
Manila. On the first year of the spouses’ tour of duty in the Philippines, Margarita filed
an annulment case against Emmanuel before a Philippine court on the ground of her
husband’s sterility at the time of the celebration of the marriage. Assume Emmanuel
and Margarita are both Filipinos. After their wedding in Kenya, they come back and take
up residence in the Philippines. Can their marriage be annulled on the ground of
Emmanuel’s sterility? Explain.
No, the marriage cannot be annulled under the Philippine law. Sterility is not a
ground for annulment of marriage under Article 45 of the Family Code.

Harry married Wilma, a very wealthy woman. Barely five (5) years into the marriage,
Wilma fell in love with Joseph. Thus, Wilma went to a small country in Europe, became
a naturalized citizen of that country, divorced Harry, and married
Joseph. A year thereafter, Wilma and Joseph returned and established permanent
residence in the Philippines. Is the divorce obtained by Wilma from Harry recognized in
the Philippines? Explain your answer.
As to Wilma, the divorced obtained by her is recognized as valid in the
Philippines because she is now a foreigner. Philippine personal laws do not apply to a
foreigner. However, recognition of the divorce as regards Harry will depend on the
applicability to his case of the second paragraph of Article 26 of the Family Code. If it is
applicable, divorce is recognized as to him and, therefore, he can remarry. However, if it
is not applicable, divorce is not recognized as to him and, consequently, he cannot
remarry.
 Yes , the divorce obtained by Wilma is recognized as valid in the Philippines. At
the time she got the divorce, she was already a foreign national having been naturalized
as a citizen of that “small country in Europe.” Based on precedents established by the
Supreme Court, divorce obtained by a foreigner is recognized in the Philippines if validly
obtained in accordance with his or her national law.

If Harry hires you as his lawyer, what legal recourse would you advise him to take?
Why?
I will advice Harry to:
(1) Dissolve and liquidate his property relations with Wilma ; and
(2) If he will remarry, file a petition for the recognition and enforcement of the foreign
judgment of divorced (Rule 39,Rules of Court ).

Harry tells you that he has fallen in love with another woman, Elizabeth, and wants to
marry her because, after all, Wilma is already married to Joseph. Can Harry legally
marry Elizabeth? Explain.
Yes, he can validly marry Elizabeth, applying the doctrine laid down by the
Supreme Court. Under the second paragraph of Article 26 of the Family Code, for the
Filipino spouse to have capacity to remarry, the law expressly requires the spouse who
obtained the divorce to be a foreigner at the time of the marriage. Applying this
requirement to the case of Harry it would seem that he is not given the capacity to
remarry. This is because Wilma was a Filipino at the time of her marriage to Harry. The
Supreme Court ruled that a Filipino spouse is given the capacity to remarry even though
the spouse who obtained the divorce was a Filipino at the time of the marriage, if the
latter was already a foreigner when the divorce was already obtained abroad. According
to the court, to rule otherwise will violate the equal protection clause of the Constitution.

Cipriano and Lady Miros married each other. Lady Miros then left for the US and there,
she obtained American citizenship. Cipriano later learned all about this including the fact
that Lady Miros has divorced him in America and that she had remarried there. He then
filed a petition for authority to remarry, invoking Par. 2, Art. 26 of the Family Code. Is
Cipriano capacitated to re-marry by virtue of the divorce decree obtained by his Filipino
spouse who was later naturalized as an
American citizen? Explain.
Yes, he is capacitated to remarry. While the second paragraph of Art 26 of the
Family Code is applicable only to a Filipino who married a foreigner at the time of
marriage, the Supreme Court ruled that the said provision equally applies to a Filipino
who married another Filipino at the time of the marriage, but who was already a
foreigner when the divorce was obtained.

Under Article 26 of the Family Code, when a foreign spouse divorces his/her Filipino
spouse, the latter may re-marry by proving only that the foreign spouse has obtained a
divorce against her or him abroad.
FALSE, the SC held that for a Filipino spouse to have capacity to contract a
subsequent marriage, it must also be proven that the foreign divorced obtained abroad
by the foreigner spouse give such foreigner spouse capacity to remarry.
Void and voidable marriages
The day after John and Marsha got married, John told her that he was impotent. Marsha
continued to live with John for 2 years. Marsha is now estopped from filing an
annulment case against John.
FALSE. Marsha is not estopped from filing an annulment case against John on
the ground of his impotence, because she learned of his impotence after the celebration
of the marriage and not before. Physical incapacity to consummate is a valid ground for
the annulment of marriage if such incapacity was existing at the time of the marriage,
continues and appears to be incurable. The marriage may be annulled on this ground
within five years from its celebration.

A petition for declaration of nullity of a void marriage can only be filed by either the
husband or the wife? Do you agree? Explain your answer.
Yes, I agree. Under the rules promulgated by the Supreme Court, a direct action
for declaration of nullity may only be filed by any of the spouses

BONI and ANNE met while working overseas. They became sweethearts and got
engaged to be married on New Year’s Eve aboard a cruise ship in the Caribbean. They
took the proper license to marry in New York City, where there is a Filipino consulate.
But as planned the wedding ceremony was officiated by the captain of the Norwegian-
registered vessel in a private suite among selected friends.
Back in Manila, Anne discovered that Boni had been married in Bacolod City 5 years
earlier but divorced in Oslo only last year. His first wife was also a Filipina but now
based in Sweden. Boni himself are resident of Norway where he and Anne plan to live
permanently. Anne retains your services to advise her on whether her marriage to Boni
is valid under Philippine law? Is there anything else she should do under the
circumstances?
If Boni is still a Filipino citizen, his legal capacity is governed by Philippine Law
(Art. 15 Civil Code). Under Philippine Law, his marriage to Anne is void because of a
prior existing marriage which was not dissolved by the divorce decreed in Oslo. Divorce
obtained abroad by a Filipino is not recognized.
If Boni was no longer a Filipino citizen, the divorce is valid. Hence, his marriage
to Anne is valid if celebrated in accordance with the law of the place where it was
celebrated. Since the marriage was celebrated aboard a vessel of Norwegian registry,
Norwegian law applies. If the Ship Captain has authority to solemnize the marriage
aboard his ship, the marriage is valid and shall be recognized in the Philippines.
As to the second question, if Boni is still a Filipino, Anne can file an action for
declaration of nullity of her marriage to him.

Gigi and Ric, Catholics, got married when they were 18 years old. Their marriage was
solemnized on August 2, 1989 by Ric's uncle, a Baptist Minister, in Calamba, Laguna.
He overlooked the fact that his license to solemnize marriage expired the month before
and that the parties do not belong to his congregation. After 5 years of married life and
blessed with 2 children, the spouses developed irreconcilable differences, so they
parted ways. While separated, Ric fell in love with Juliet, a 16 year-old sophomore in a
local college and a Seventh-Day Adventist. They decided to get married with the
consent of Juliet's parents. She presented to him a birth certificate showing she is 18
years old. Ric never doubted her age much less the authenticity of her birth certificate.
They got married in a Catholic church in Manila. A year after, Juliet gave birth to twins,
Aissa and Aretha. What is the status of the marriage between Gigi and Ric — valid,
voidable or void? Explain.
Even if the Minister's license expired, the marriage is valid if either or both Gigi
and Ric believed in good faith that he had the legal authority to solemnize marriage.
While the authority of the solemnizing officer is a formal requisite of marriage, and at
least one of the parties must belong to the solemnizing officer's church, the law provides
that the good faith of the parties cures the defect in the lack of authority of the
solemnizing officer. The absence of parental consent despite their having married at the
age of 18 is deemed cured by their continued cohabitation beyond the age of 21. At this
point, their marriage is valid (See Art. 45, Family Code).

What is the status of the marriage between Ric and Juliet valid, voidable or void?
The marriage between Juliet and Ric is void. First of all, the marriage is a
bigamous marriage not falling under Article 41 [Art. 35(4)Family Code], A subsisting
marriage constitutes a legal impediment to remarriage. Secondly, Juliet is below
eighteen years of age. The marriage is void even if consented to by her parents [Art.
35(1), Family Code]. The fact that Ric was not aware of her real age is immaterial.

Suppose Ric himself procured the falsified birth certificate to persuade Juliet to marry
him despite her minority and assured her that everything is in order. He did not divulge
to her his prior marriage with Gigi. What action, if any, can Juliet take against him?
Explain.
Juliet can file an action for the declaration of nullity of the marriage on the ground
that he willfully caused loss or injury to her in a manner that is contrary to morals, good
customs and public policy [Art. 21, New Civil Code]. She may also bring criminal actions
for seduction, falsification, illegal marriage and bigamy against Ric.

If you were the counsel for Gigi, what action/s will you take to enforce and protect her
interests? Explain.
I would file an action to declare the marriage between Juliet and Ric null and void
ab initio and for Ric's share in the co-ownership of that marriage to be forfeited in favor
and considered part of the absolute community in the marriage between Gigi and Ric
[Arts. 148 & 147, Family Code]. I would also file an action for damages against Ric on
the grounds that his acts constitute an abuse of right and they are contrary to law and
morals, causing damages to Gigi (See Arts 19, 20, 21, New Civil Code).

Give a brief definition or explanation of the term ―psychological incapacity‖ as a ground

for the declaration of nullity of a marriage.
PSYCHOLOGICAL INCAPACITY‖ is a mental disorder of the most serious type
showing the incapability of one or both spouses to comply the essential marital
obligations of love, respect, cohabitation, mutual help and support, trust and
commitment. It must be characterized by Juridical antecedence, gravity and incurability
and its root causes must be clinically identified or examined.

If existing at the inception of marriage, would the state of being of unsound mind or the
concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism be
considered indicia of psychological incapacity? Explain.
The Supreme Court held that being of unsound mind, drug addiction, habitual
alcoholism, lesbianism or homosexuality may be indicia of psychological incapacity,
depending on the degree of severity of the disorder. However, the concealment of drug
addiction, habitual alcoholism, lesbianism or homosexuality is a ground of annulment of
marriage.

In June 1985, James married Mary. In September 1988, he also married Ophelia with
whom he begot two (2) children, A and B. In July 1989, Mary died. In July 1990, he
married Shirley and abandoned Ophelia, During their union. James and Ophelia
acquired a residential lot worth P300,000.00. Ophelia sues James for bigamy and prays
that his marriage with Shirley be declared null and void. James, on the other hand,
claims that since his marriage to Ophelia was contracted during the existence of his
marriage with Mary, the former is not binding upon him, the same being void ab initio he
further claims that his marriage to Shirley is valid and binding as he was already legally
capacitated at the time he married her. Is the contention of James correct?
Yes. His marriage to Ophelia is void ab initio because of his subsisting prior
marriage to Mary. His marriage to Shirley, after Mary's death, is valid and binding.

What property Relations governed the union of James and Ophelia?

The provisions of Art 148 of the Family Code, shall govern: 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.

Is the estate of Mary entitled to a share in the residential lot acquired by James and
Ophelia.
It should be distinguished when the property was acquired. If it was acquired
before Mary's death, the estate of Mary is entitled to 1/2 of the share of James. If it was
acquired after Mary's death, there will be no share at all for the estate of Mary.

On April 15, 1983, Jose, an engineer, and Marina, a nurse, were married to each other
in a civil ceremony in Boac. Marinduque. Six months after their marriage, Jose was
employed in an oil refinery in Saudi Arabia for a period of three years. When he
returned to the Philippines, Marina was no longer living in their house, but in
Zamboanga City, working in a hospital. He asked her to come home, but she refused to
do so, unless he agreed not to work overseas anymore because she cannot stand living
alone. He could not agree as in fact, he had signed another three year contract. When
he returned in 1989, he could not locate Marina anymore. In 1992, Jose filed an action
served by publication in a newspaper of general circulation. Marina did not file any
answer, a possible collusion between the parties was ruled out by the Public
Prosecutor. Trial was conducted and Marina neither appeared nor presented evidence
in her favor. If you were the judge, will you grant the annulment. Explain.
As judge, I will not grant the annulment. The facts do not show any taint of
personality disorder on the part of the wife Marina so as to lend substance to her
husband's averment of psychological incapacity within the meaning of Art 36 of the
Family Code. According to the Supreme Court, this particular ground for nullity of
marriage was held to be limited only to the most serious cases of personality disorders
(clearly demonstrative of utter sensitivity or inability to give meaning and significance to
the marriage. Marina's refusal to come home to her husband unless he agreed not to
work overseas, far from being indicative of an insensitivity to the meaning of marriage,
or of a personality disorder, actually shows a sensitive awareness on her part of the
marital duty to live together as husband and wife. Mere refusal to rejoin her husband
when he did not accept the condition imposed by her does not furnish any basis for
concluding that she was suffering from psychological incapacity to discharge the
essential marital obligations.
Mere intention to live apart does not fall under Art. 36, FC. Furthermore, there is no
proof that the alleged psychological incapacity existed at the time of the marriage.

Gemma filed a petition for the declaration of nullity of her marriage with Arnell on the
ground of psychological incapacity. She alleged that after 2 months of their marriage,
Arnell showed signs of disinterest in her, neglected her and went abroad. He returned to
the Philippines after 3 years but did not even get in touch with her. Worse, they met
several times in social functions but he snubbed her. When she got sick, he did not visit
her even if he knew of her confinement in the hospital. Meanwhile, Arnell met an
accident which disabled him from reporting for work and earning a living to support
himself. Will Gemma's suit prosper? Explain.
No, Gemma's suit will not prosper. Even if taken as true, the grounds, singly or
collectively, do not constitute "psychological incapacity." The Supreme Court clearly
explained that "psychological incapacity must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability." The illness must be shown as downright
incapacity or inability to perform one's marital obligations, not a mere refusal, neglect,
difficulty or much less, ill will. It is essential that the husband is capable of meeting his
marital responsibilities due to psychological and not physical illness. Furthermore, the
condition complained of did not exist at the time of the celebration of marriage.

Article 36 of the Family Code provides that 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 be void. Choose the spouse listed below
who is psychologically incapacitated. Explain. a) Nagger b) Gay or Lesbian c)
Congenital sexual pervert d) Gambler e) Alcoholic.

The best answers are B and C. To be sure, the existence and concealment of
these conditions at the inception of marriage renders the marriage contract voidable
(Art. 46, Family Code). They may serve as indicia of psychological incapacity,
depending on the degree and severity of the disorder. Hence, if the condition of
homosexuality, lesbianism or sexual perversion, existing at the inception of the
marriage, is of such a degree as to prevent any form of sexual intimacy, any of them
may qualify as a ground for psychological incapacity. The law provides that the husband
and wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68,
Family Code). The mandate is actually the spontaneous, mutual affection between the
spouses. In the natural order it is sexual intimacy which brings the spouses wholeness
and oneness.

What do you understand by "presumptive legitime", in what case or cases must the
parent deliver such legitime to the children, and what are the legal effects in each case
if the parent fails to do so?
PRESUMPTIVE LEGITIME is not defined in the law. Its definition must have
been taken from Act 2710, the Old Divorce Law, which required the delivery to the
legitimate children of "the equivalent of what would have been due to them as their legal
portion if said spouse had died intestate immediately after the dissolution of the
community of property." As used in the Family Code, presumptive legitime is
understood as the equivalent of the legitimate children's legitime assuming that the
spouses had died immediately after the dissolution of the community of property.
Presumptive legitime is required to be delivered to the common children of the
spouses when the marriage is annulled or declared void ab initio and possibly, when the
conjugal partnership or absolute community is dissolved as in the case of legal
separation. Failure of the parents to deliver the presumptive legitime will make their
subsequent marriage null and void under Article 53 of the Family Code.

You are a Family Court judge and before you is a Petition for the Declaration of Nullity
of Marriage (under Article 36 of the Family Code)filed by Maria against Neil. Maria
claims that Neil is psychologically incapacitated to comply with the essential obligations
of marriage because Neil is a drunkard, a womanizer, a gambler, and a mama's boy-
traits that she never knew or saw when Neil was courting her. Although summoned, Neil
did not answer Maria's petition and never appeared in court. To support her petition,
Maria presented three witnesses- herself, Dr. Elsie Chan, and Ambrosia. Dr. Chan
testified on the psychological report on Neil that she prepared. Since Neil never
acknowledged n9r responded to her invitation for interview her report is solely based on
her interviews with Maria and the spouses' minor children. Dr. Chan concluded that Neil
is suffering from Narcissistic Personality Disorder, an ailment that she found to be
already present since Neil's early adulthood and one that is grave and incurable. Maria
testified on the specific instances when she found Neil drunk, with another woman, or
squandering the family's resources in a casino. Ambrosia, the spouses' current
household help, corroborated Maria's testimony. On the basis of the evidence
presented, will you grant the petition?
No. The petition should be denied. The psychological incapacity under Art. 36 of
the Family Code must be characterized by (a) gravity, (b) juridical antecedence, and (c)
incurability. It is not enough to prove that the parties failed to meet their responsibilities
and duties as married persons; it is essential that they must be shown to be incapable
of doing so, due to some physiological (not physical) illness. In this case, the pieces of
evidence presented are not sufficient to conclude that indeed Neil is suffering from
psychological incapacity [Narcissistic Personality Disorder] existing already before the
marriage, incurable and serious enough to prevent Neil from performing his essential
marital obligations. Dr. Chan’s report contains mere conclusions. Being a drunkard, a
womanizer, a gambler and a mama’s boy, merely shows Neil’s failure to perform his
marital obligations. In a number of cases, the Supreme Court did not find the existence
of psychological incapacity in cases where the respondent showed habitual
drunkenness, blatant display of infidelity and irresponsibility or being hooked to
gambling and drugs.

The petitioner filed a petition for declaration of nullity of marriage based allegedly on the
psychological incapacity of the respondent, but the psychologist was not able to
personally examine the respondent and the psychological report was based only on the
narration of petitioner. Should the annulment be granted? Explain.
The annulment cannot be guaranteed solely on the basis of the psychological
report. For the report to prove the psychological incapacity of the respondent, it is
required that the psychologist should personally examine the respondent and the
psychological report should be based on the psychologist’s independent assessment of
the facts as to whether or not the respondent is psychologically incapacitated.
Since, the psychologist did no personally examine the respondent, and his report
is based solely on the story of the petitioner who has an interest in the outcome of the
petition, the marriage cannot be annulled on the ground of respondent’s psychological
incapacity if the said report is the only evidence of respondent’s psychological
incapacity.

Ana Rivera had a husband, a Filipino citizen like her, who was among the passengers
on board a commercial jet plane which crashed in the Atlantic Ocean ten (10) years
earlier and had never been heard of ever since. Believing that her husband had died,
Ana married Adolf Cruz Staedtler, a divorced German national born of a German father
and a Filipino mother residing in Stuttgart. To avoid being reqiured to submit the
required certificate of capacity to marry from the German Embassy in Manila, Adolf
stated in the application for marriage license that he was a Filipino citizen. With the
marriage license stating that Adolf was a Filipino, the couple got married in a ceremony
officiated by the Parish Priest of Calamba, Laguna in a beach in Nasugbu, Batangas, as
the local parish priest refused to solemnize marriages except in his church. Is the
marriage valid? Explain fully.
No. The marriage is not valid. Art. 41 FC allows the present spouse to contract a
subsequent marriage during the subsistence of his previous marriage provided that: (a)
his prior spouse in the first marriage had been absent for four consecutive years; (b)
that the spouse present has a well-founded belief that the absent spouse was already
dead, and (C) present spouse instituted a summary proceeding for the declaration of
the presumptive death of absent spouse. Otherwise, the second marriage shall be null
and void. In the instant case, the husband of Ana was among the passengers on board
a commercial jet plane which crashed in the Atlantic Ocean. The body of the deceased
husband was not recovered to confirm his death. Thus, following Art. 41, Ana should
have first secured a judicial declaration of his presumptive death before she married
Adolf. The absence of the said judicial declaration incapacitated Ana from contracting
her second marriage, making it void ab initio.

Despite several relationships with different women, Andrew remained unmarried. His
first relationship with Brenda produced a daughter, Amy, now 30 years old. His second,
with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him no
children although Elena has a daughter Jane, from a previous relationship. His last, with
Fe, produced no biological children but they informally adopted without court
proceedings, Sandy's now 13 years old, whom they consider as their own. Sandy was
orphaned as a baby and was entrusted to them by the midwife who attended to Sandy's
birth. All the children, including Amy, now live with Andrew in his house. Can Jon and
Jane legally marry?
Yes. Jon and Jane can marry each other; Jon is an illegitimate child of Andrew
while Jane is a child of Elena from a previous relationship. Thus, their marriage is not
one of the prohibited marriages enumerated under Art. 38 of the FC.

Amor gave birth to Thelma when she was 15 years old. Thereafter, Amor met David and
they got married when she was 20 years old. David had a son, Julian, with his ex-
girlfriend Sandra. Julian and Thelma can get married.
TRUE. Julian and Thelma can get married. Marriage between stepbrothers and
stepsisters are not among the marriages prohibited under the Family
Code.

In December 2000, Michael and Anna, after obtaining a valid marriage impediment for
them to validity marry
license, went to the Office of the Mayor of Urbano, Bulacan, to get married. The Mayor
was not there, but the Mayor’s secretary asked Michael and Anna and their witnesses to
fill up and sign the required marriage contract forms. The secretary then told them to
wait, and went out to look for the Mayor who was attending a wedding in a neighboring
municipality. When the secretary caught up with the Mayor at the wedding reception,
she showed him the marriage contract forms and told him that the couple and their
witnesses were waiting in his office. The Mayor forthwith signed all the copies of the
marriage contract, gave them to the secretary who returned to the Mayor’s office. She
then gave copies of the marriage contract to the parties, and told Michael and Anna that
they were already married. Thereafter, the couple lived together as husband and wife,
and had three sons. What property regime governs the properties acquired by the
couple? Explain.
The marriage being void, the property relationship that governed their union is
special co-ownership under Article 147 of the Family Code. This is on the assumption
that there was no impediment for them to validity marry each other.

In December 2000, Michael and Anna, after obtaining a valid marriage license, went to
the Office of the Mayor of Urbano, Bulacan, to get married. The Mayor was not there,
but the Mayor’s secretary asked Michael and Anna and their witnesses to fill up and
sign the required marriage contract forms. The secretary then told them to wait, and
went out to look for the Mayor who was attending a wedding in a neighboring
municipality. When the secretary caught up with the Mayor at the wedding reception,
she showed him the marriage contract forms and told him that the couple and their
witnesses were waiting in his office. The Mayor forthwith signed all the copies of the
marriage contract, gave them to the secretary who returned to the Mayor’s office. She
then gave copies of the marriage
contract to the parties, and told Michael and Anna that they were already married.
Thereafter, the couple lived together as husband and wife, and had three sons. Is the
marriage of Michael and Anna valid, voidable, or void? Explain your answer.
The marriage is void because the formal requisite of marriage ceremony was
absent ( Art.3, F.C. 209, Family Code).

What is the status of the three children of Michael and Anna? Explain your answer.
The children are illegitimate, having been born outside a valid marriage.

Legal separation
Under what conditions, respectively, may drug addiction be a ground, if at all, for a
declaration of nullity of marriage.
Declaration of nullity of marriage:
1) The drug addiction must amount to psychological incapacity to comply with the
essential obligations of marriage;
2) It must be antecedent (existing at the time of marriage), grave and incurable:
3) The case must be filed before August 1, 1998. Because if they got married before
August 3, 1998, it must be filed before August 1, 1998.

For an annulment of the marriage contract.

Annulment of the Marriage Contract: 1) The drug addiction must be concealed; 2)
It must exist at the time of marriage; 3) There should be no cohabitation with full
knowledge of the drug addiction; 4) The case is filed within five (5) years from
discovery.

For legal separation between the spouses?

Legal Separation; 1) There should be no condonation or consent to the drug
addiction; 2) The action must be filed within five (5) years from the occurrence of the
cause; 3) Drug addiction arises during the marriage and not at the time of marriage.

If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only

during the marriage, would this constitute grounds for a declaration of nullity or for legal
separation, or would they render the marriage voidable?
In accordance with law, if drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, they: a) Will not constitute as
ground for declaration of nullity (Art. 36, Family Code); b) Will constitute as grounds for
legal separation (Art. 56, FC) and c) will not constitute as grounds to render the
marriage voidable (Art.45and 46, FC).
Rosa and Ariel were married in the Catholic Church of Tarlac, Tarlac on January 5.
1988. In 1990, Ariel went to Saudi Arabia to work. There, after being converted into
Islam, Ariel married Mystica, Rosa learned of the second marriage of Ariel on January
1, 1992 when Ariel returned to the Philippines with Mystica. Rosa filed an action for
legal separation on February 5, 1994. Does Rosa have legal grounds to ask for legal
separation?
Yes, the abandonment of Rosa by Ariel for more than one (1) year is a ground for
legal separation unless upon returning to the Philippines, Rosa agrees to cohabit with
Ariel which is allowed under the Muslim Code. In this case, there is condonation. b)
Yes. The contracting of a subsequent bigamous marriage whether in the Philippines or
abroad is a ground for legal separation under Article 55(7) of the Family Code. Whether
the second marriage is valid or not, Ariel having converted into Islam, is immaterial.

Has the action prescribed?

No. Under Article 57 of the Family Code, the aggrieved spouse must file the
action within five (5) years from the occurrence of the cause. The subsequent marriage
of Ariel could not have occurred earlier than 1990, the time he went to Saudi Arabia.
Hence, Rosa has until 1995 to bring the action under the Family Code.

Saul, a married man, had an adulterous relation with Tessie. In one of the trysts, Saul's
wife, Cecile, caught them in flagrante. Armed with a gun, Cecile shot Saul in a fit of
extreme jealousy, nearly killing him. Four (4) years after the incident, Saul filed an
action for legal separation against Cecile on the ground that she attempted to kill him.
If you were Saul's counsel, how will you argue his case?
As the counsel of Saul, I will argue that an attempt by the wife against the life of
the husband is one of the grounds enumerated by the Family Code for legal separation
and there is no need for criminal conviction for the ground to be invoked (Art. 55, par. 9,
Family Code).

If you were the lawyer of Cecile, what will be your defense?

As the counsel of Cecile, I will invoke the adultery of Saul.
Mutual guilt is a ground for the dismissal of an action for legal separation (Art. 56, par.
4, Family Code). The rule is anchored on a well-established principle that one must
come to court with clean hands.

If you were the judge, how will you decide the case?
If I were the judge, I will dismiss the action on the ground of mutual guilt of the
parties. The Philippine Constitution protects marriage as an inviolable social institution
(Art. XV, Sec. 2, 1987 Constitution). An action for legal separation involves public
interest and no such decree should be issued if any legal obstacle thereto appears on
record. This is in line with the policy that in case of doubt, the court shall uphold the
validity and sanctity of marriage.

After they got married, Nikki discovered that Christian was having an affair with another
woman. But Nikki decided to give it a try and lived with him for two (2) years. After two
(2) years, Nikki filed an action for legal separation on the ground of Christian’s sexual
infidelity. Will the action prosper? Explain.
Although the action for legal separation has not yet prescribed, the prescriptive
period being 5 years, if Obecido’s affair with another woman was ended when Nikki
decided to live with him again, Nikki’s action will not prosper on account of condonation.
However, if such affair is still continuing, Nikki’s action would prosper because the
action will surely be within five (5) years from the commission of the latest act of sexual
infidelity. Every act of sexual liaison is a ground for legal separation.

If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005,
the prescriptive period to file for legal
separation runs from 2002.
FALSE. The five-year prescriptive period for filing legal separation runs from the
occurrence of sexual infidelity committed in 2002 runs from 2002, for the sexual
infidelity committed in 2003, the prescriptive period runs from 2003 and so on. The
action for legal separation for the last act of sexual infidelity in 2005 will prescribe in
2010.

D. Rights and obligations between husband and wife

Property relations between husband and wife
General provisions
Suppose Tirso and Tessie were married on 2 August 1988 without executing any ante
nuptial agreement. One year after their marriage, Tirso while supervising the clearing of
Tessie's inherited land upon the latter's request, accidentally found the treasure not in
the new river bed but on the property of Tessie. To whom shall the treasure belong?
Explain.
Since Tirso and Tessie were married before the effectivity of the Family Code,
their property relation is governed by conjugal partnership of gains. Under Art. 54 of the
Civil Code, the share of the hidden treasure which the law awards to the finder or the
proprietor belongs to the conjugal partnership of gains. The one-half share pertaining to
Tessie as owner of the land, and the one-half share pertaining to Tirso as finder of the
treasure, belong to the conjugal partnership of gains.

Bar Candidates Patricio Mahigugmaon and Rowena Amor decided to marry each other
before the last day of the 1991 Bar Examinations. They agreed to execute a Marriage
Settlement. Rowena herself prepared the document in her own handwriting. They
agreed on the following: (1) a conjugal partnership of gains; (2) each donates to the
other fifty percent (50%) of his/her present property, (3) Rowena shall administer the
conjugal partnership property; and (4) neither may bring an action for the annulment or
declaration of nullity of their marriage. Both signed the agreement in the presence of
two (2) witnesses. They did not, however, acknowledge it before a notary public. As to
form, is the Marriage Settlement valid? May it be registered in the registry of property? If
not, what steps must be taken to make it registerable?
Yes, it is valid as to form because it is in writing. No, it cannot be registered in the
registry of property because it is not a public document. To make it registerable, it must
be reformed and has to be notarized.
Are the stipulations valid?
Stipulations (1) and (3) are valid because they are not contrary to law. Stipulation
(4) is void because it is contrary to law. Stipulation (2) is valid up to 1/5 of their
respective present properties but void as to the excess (Art 84, Family Code).

If the Marriage Settlement is valid as to form and the above stipulations are likewise
valid, does it now follow that said Marriage Settlement is valid and enforceable?
No. on September 15, 1991, the marriage settlement is not yet valid and
enforceable until the celebration of the marriage, to take place before the last day of the
1991 bar Examinations.

On 10 September 1988 Kevin, a 26-year old businessman, married Karla, a winsome

lass of 18. Without the knowledge of their parents or legal guardians, Kevin and Karla
entered into an ante-nuptial contract the day before their marriage stipulating that
conjugal partnership of gains shall govern their marriage. At the time of their marriage
Kevin's estate was worth 50 Million while Karla's was valued at 2 Million. A month after
their marriage Kevin died in a freak helicopter accident. He left no will, no debts, no
obligations. Surviving Kevin, aside from Karla, are his only relatives: his brother Luis
and first cousin Lilia. What property Relations governed the marriage of Kevin and
Karla? Explain.
Since the marriage settlement was entered into without the consent and without
the participation of the parents (they did not sign the document), the marriage
settlement is invalid applying Art. 78, F.C. which provides that a minor who according to
law may contract marriage may also enter into marriage settlements but they shall be
valid only if the person who may give consent to the marriage are made parties to the
agreement. (Karla was still a minor at the time the marriage settlement was executed in
September 1988 because the law, R.A. 6809, reducing the age of majority to 18 years
took effect on 18 December 1989). The marriage settlement being void, the property
Relations governing the marriage is, therefore, absolute community of property, under
Art. 75 of the FC.

Determine the value of the estate of Kevin.

All the properties which Kevin and Karla owned at the time of marriage became
community property which shall be divided equally between them at dissolution. Since
Kevin owned 50 Million and Karla. 2 Million, at the time of the marriage, 52 Million
constituted their community property. Upon the death of Kevin, the community was
dissolved and half of the 52 Million or 26 Million is his share in the community. This 26
Million therefore is his estate.

Who are Kevin's heirs.

Karla and Luis are the Intestate heirs of Kevin.

How much is each of Kevin's heirs entitled to inherit?

They are entitled to share the estate equally under Article 1001 of the NCC.
Therefore. Karla gets 13 Million and Luis gets 13 Million.
As finance officer of K and Co., Victorino arranged a loan of
P5MillionfromPNBforthecorporation. However,hewas required by the bank to sign a
Continuing Surety Agreement to secure the repayment of the loan. The corporation
failed to pay the loan, and the bank obtained a judgment against it and Victorino, jointly
and severally. To enforce the judgment, the sheriff levied on a farm owned by the
conjugal partnership of Victorino and his wife Elsa. Is the levy proper or not?
The levy is not proper there being no showing that the surety agreement
executed by the husband redounded to the benefit of the family. An obligation
contracted by the husband alone is chargeable against the conjugal partnership only
when it was contracted for the benefit of the family. When the obligation was contracted
on behalf of the family business the law presumes that such obligation will redound to
the benefit of the family. However, when the obligation was to guarantee the debt of a
third party, as in the problem, the obligation is presumed for the benefit of the third
party, not the family. Hence, for the obligation under the surety agreement to be
chargeable against the partnership it must be proven that the family was benefited and
that the benefit was a direct result of such agreement.

Maria, wife of Pedro, withdrew P 5 Million from their conjugal funds. With this money,
she constructed a building on a lot which she inherited from her father. Is the building
conjugal or paraphernal? Reasons.
It depends. If the value of the building is more than the value of the land, the
building is conjugal and the land becomes conjugal property under Art. 120 of the
Family Code. This is a case of reverse accession, where the building is considered as
the principal and the land, the accessory. If, on the other hand, the value of the land is
more than the value of the building, then the ordinary rule of accession applies where
the land is the principal and the building, the accessory. In such case, the land remains
paraphernal property and the building becomes paraphernal property.

An individual, While single, purchases a house and lot in 1990 and borrows money in
1992 to repair it. In 1995, such individual gets married while the debt is still being paid.
After the marriage, the debt is still the responsibility of such individual.
FALSE. The absolute Community of property is liable for the ante-nuptial debts of
either spouse in so far as the same redounded to the benefit of the family (Art. 94 par.7,
FC).

In 1997, B and G started living together without the benefit of marriage. The relationship
produced one offspring, Venus. The couple acquired a residential lot in Parañaque.
After four (4) years or in 2001, G having completed her 4-year college degree as a
fulltime student, she and B contracted marriage without a license.
The marriage of B and G was, two years later, declared null and void due to the
absence of a marriage license. If you were the judge who declared the nullity of the
marriage, to whom would you award the lot? Explain briefly.
Since the marriage was null and void, no Absolute Community or Conjugal
Partnership was established between B and G. Their properties are governed by the
“special co-ownership” provision of Article 147 of the Family Code because both B and
G were capacitated to marry each other. The said Article provides that 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: (1) their
wages and salaries shall be owned by them in equal shares; and (2) property acquired
by both of them through their work or industry shall be governed by the rules on co-
ownership. In co-ownership, the parties are co-owners if they contributed something of
value in the acquisition of the property. Their share is in proportion to their respective
contributions. In an ordinary co- ownership the care and maintenance of the family is
not recognized as a valuable contribution for the acquisition of a property. In the Article
147 “special co-ownership” however, care and maintenance is recognized as a valuable
contribution which will entitle the contributor to half of the property acquired.
Having been acquired during their cohabitation, the residential lot is presumed acquired
through their joint work and industry under Article 147, hence, B and G are co-owners of
the said property in equal shares.
Article 147 also provides that when a party to the void marriage was in bad faith,
he forfeits his share in the co- ownership in favor of the common children or
descendants, the default of children or descendants, the forfeited share shall belong to
the innocent party. In the foregoing problem, there is no showing that one party was in
bad faith. Hence, both shall be presumed in good faith and no forfeiture shall take place.

Donations by reason of marriage

Art. 82. Donations by reason of marriage are those which are made before its
celebration, in consideration of the same, and in favor of one or both of the future
spouses.

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

Absolute Community of Property

Paulita left the conjugal home because of the excessive drinking of her husband,
Alberto. Paulita, out of her own endeavor, was able to buy a parcel of land which she
was able to register under her name with the addendum "widow." She also acquired
stocks in a listed corporation registered in her name. Paulita sold the parcel of land to
Rafael, who first examined the original of the transfer certificate of title. Has Alberto the
right to share in the shares of stock acquired by Paulita?
a) Yes. The Family Code provides that 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 absolute community property unless
the contrary is proved.
b) Yes. The shares are presumed to be absolute community property having been
acquired during the marriage despite the fact that those shares were registered only in
her name. Alberto's right to claim his share will only arise, however, at dissolution.
c) The presumption is still that the shares of stock are owned in common. Hence, they
will form part of the absolute community or the conjugal partnership depending on what
the property Relations is.
d) Since Paulita acquired the shares of stock by onerous title during the marriage, these
are part of the conjugal or absolute community property, as the case maybe (depending
on whether the marriage was celebrated prior to. or after, the effectivity of the Family
Code). Her physical separation from her husband did not dissolve the community of
property. Hence, the husband has a right to share in the shares of stock.

Can Alberto recover the land from Rafael?

a) Under a community of property, whether absolute or relative, the disposition of
property belonging to such community is void if done by just one spouse without the
consent of the other or authority of the proper court. However, the land was registered
in the name of Paulita as "widow". Hence, the buyer has the right to rely upon what
appears in the record of the Register of Deeds and should, consequently, be protected.
Alberto cannot recover the land from Rafael but would have the right of recourse
against his wife
b) The parcel of land is absolute community property having been acquired during the
marriage and through Paulita's industry despite the registration being only in the name
of Paulita. The land being community property, its sale to Rafael without the consent of
Alberto is void. However, since the land is registered in the name of Paulita as widow,
there is nothing in the title which would raise a suspicion for Rafael to make inquiry. He,
therefore, is an innocent purchaser for value from whom the land may no longer be
recovered.
c) No. Rafael is an innocent purchaser in good faith who, upon relying on the
correctness of the certificate of title, acquires rights which are to be protected by the
courts.
Under the established principles of land registration law, the presumption is that the
transferee of registered land is not aware of any defect in the title of the property he
purchased. Moreover, the person dealing with registered land may safely rely on the
correctness of its certificate of title and the law will in no way oblige him to go behind the
certificate to determine the condition of the property. No strong considerations of public
policy have been presented which would lead the Court to reverse the established and
sound doctrine that the buyer in good faith of a registered parcel of land does not have
to look beyond the Torrens Title and search for any hidden defect or inchoate right
which may later invalidate or diminish his right to what he purchased.
d) The parcel of land is absolute community property having been acquired during the
marriage and through Paulita's industry despite registration only in the name of Paulita.
The land being community property, its sale to Rafael without the consent of Alberto is
void.

Conjugal Partnership of Gains

In 1970, Bob and Issa got married without executing a marriage settlement. In 1975,
Bob inherited from his father a residential lot upon which, in 1981, he constructed a two-
room bungalow with savings from his own earnings. At that time, the lot was worth
P800.000.00 while the house, when finished cost P600,000.00. In 1989 Bob died,
survived only by his wife, Issa and his mother, Sofia. Assuming that the relative values
of both assets remained at the same proportion: State whether Sofia can rightfully claim
that the house and lot are not conjugal but exclusive property of her deceased son.
Since Bob and Sofia got married In 1970, then the law
that governs is the New Civil Code (Persons), in which case, the property relations that
should be applied as regards the property of the spouses is the system of relative
community or conjugal partnership of gains (Article 119, Civil Code). By conjugal
partnership of gains, the husband and the wife place in a common fund the fruits of their
separate property and the income from their work or Industry (Article 142, Civil Code).
In this instance, the lot inherited by Bob in 1975 is his own separate property, he having
acquired the same by lucrative title (par. 2, Art. 148, Civil Code). However, the house
constructed from his own savings in 1981 during the subsistence of his marriage with
Issa is conjugal property and not exclusive property in accordance with the principle of
"reverse accession" provided for in Art. 158, Civil Code.

Will your answer be the same if Bob died before August 3, 1988?
Yes, the answer would still be the same. Since Bob and Issa contracted their
marriage way back in 1970, then the property relations that will govern is still the relative
community or conjugal partnership of gains (Article 119, Civil Code). It will not matter if
Bob died before or after August 3. 1988 (effectivity date of the Family Code], what
matters is the date when the marriage was contracted. As Bob and Issa contracted their
marriage way back in 1970. the property relation that governs them is still the conjugal
partnership of gains. (Art. 158, Civil Code)
Gabby and Mila got married at Lourdes Church in Quezon City on July 10, 1990. Prior
thereto, they executed a marriage settlement whereby they agreed on the regime of
conjugal partnership of gains. The marriage settlement was registered in the Register of
Deeds of Manila, where Mila is a resident. In 1992, they jointly acquired a residential
house and lot, as well as a condominium unit in Makati. In 1995, they decided to change
their property relations to the regime of complete separation of property. Mila
consented, as she was then engaged in a lucrative business. The spouses then signed
a private document dissolving their conjugal partnership and agreeing on a complete
separation of property. Thereafter, Gabby acquired a mansion in Baguio City, and a 5-
hectare agricultural land in Oriental Mindoro, which he registered exclusively in his
name. In the year 2000, Mila's business venture failed, and her creditors sued her for
P10,000,000.00. After obtaining a favorable judgment, the creditors sought to execute
on the spouses' house and lot and condominium unit, as well as Gabby's mansion and
agricultural land. Discuss the status of the first and the amended marriage settlements.
The marriage settlement between Gabby and Mila adopting the regime of
conjugal partnership of gains still subsists. It is not dissolved by the mere agreement of
the spouses during the marriage. It is clear from Article 134 of the Family Code that in
the absence of an express declaration in the marriage settlement, the separation of
property between the spouses during the marriage shall not take place except by
judicial order.

Discuss the effects of the said settlements on the properties acquired by the spouses.
The regime of conjugal partnership of gains governs the properties acquired by
the spouses. All the properties acquired by the spouses after the marriage belong to the
conjugal partnership. Under Article 116 of the Family Code, even if Gabby registered
the mansion and 5-hectare agricultural land exclusively in his name, still they are
presumed to be conjugal properties, unless the contrary is proved.

What properties may be held answerable for Mila's obligations? Explain.

Since all the properties are conjugal, they can be held answerable for Mila's
obligation if the obligation redounded to the benefit of the family. (Art. 121 [3], Family
Code) However, the burden of proof lies with the creditor claiming against the
properties.

Separation of property and administration of common property by one spouse during

the marriage
Regime of separation of property
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.
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;
(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.
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 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.
Art. 138. After dissolution of the absolute community or of the conjugal partnership, the
provisions on complete separation of property shall apply.
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.
Art. 140. The separation of property shall not prejudice the rights previously acquired by
creditors.
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;
(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.
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.
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.
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.
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.
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.

Property regime of unions without marriage

In 1989, Rico, then a widower forty (40) years of age, cohabited with Cora, a widow
thirty (30) years of age. While living together, they acquired from their combined
earnings a parcel of riceland. After Rico and Cora separated, Rico lived together with
Mabel, a maiden sixteen (16) years of age. While living together, Rico was a salaried
employee and Mabel kept house for Rico and did full-time household chores for him.
During their cohabitation, a parcel of coconut land was acquired by Rico from his
savings. After living together for one (1) year, Rico and Mabel separated. Rico then met
and married Letty, a single woman twenty-six (26) years of age. During the marriage of
Rico and Letty, Letty bought a mango orchard out of her own personal earnings. Who
would own the riceland, and what property Relations governs the ownership?
Rico and Cora are the co-owners of the riceland. The Relations is that of co-
ownership (Art. 147, Family Code, first paragraph).
Who would own the coconut land, and what property Relations governs the ownership?
Explain.
Rico is the exclusive owner of the coconut land. The Relations is a sole/single
proprietorship (Art. 148. Family Code, first paragraph is applicable, and not Art. 147
Family Code).

c) Who would own the mango orchard, and what property Relations governs the
ownership? Explain.
Rico and Letty are the co-owners. The Relations is the Absolute Community of
Property (Arts, 75,90and9l, Family Code).

Luis and Rizza, both 26 years of age and single, live exclusively with each other as
husband and wife without the benefit of marriage, Luis is gainfully employed, Rizza is
not employed, stays at home, and takes charge of the household chores. After living
together for a little over twenty years, Luis was able to save from his salary earnings
during that period the amount of P200,000.00 presently deposited in a bank. A house
and lot worth P500,000.00 was recently purchased for the same amount by the couple.
Of the P500.000.00 used by the common-law spouses to purchase the property,
P200.000.00 had come from the sale of palay harvested from the hacienda owned by
Luis and P300,000.00 from the rentals of a building belonging to Rizza. In fine, the sum
of P500.000.00 had been part of the fruits received during the period of cohabitation
from their separate property, a car worth P100.000.00. being used by the common-law
spouses, was donated Just months ago to Rizza by her parents. Luis and Rizza now
decide to terminate their cohabitation, and they ask you to give them your legal advice
on the following: How, under the law should the bank deposit of P200,000.00 the house
and lot valued at P500.000.00 and the car worth P100.000.00 be allocated to them?
Art. 147 of the Family Code provides in part that 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 of coownership. 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, worker Industry, and shall be
owned by them in equal shares. 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. Thus: 1) the wages and salaries of Luis in the amount of P200,000.00
shall be divided equally between Luis and Rizza. 2) the house and lot valued at
P500.000.00 having been acquired by both of them through work or industry shall be
divided between them in proportion to their respective contribution, in consonance with
the rules on co-ownership. Hence, Luis gets 2\5 while Rizza gets 3\5 of P500.000.00. 3)
the car worth P100,000.00 shall be exclusively owned by Rizza, the same having been
donated to her by her parents.

What would your answer be (to the above question) had Luis and Rizza been living
together all the time, ie., since twenty years ago, under a valid marriage?
 The property relations between Luis and Rizza, their marriage having been
celebrated 20 years ago (under the Civil Code) shall be governed by the conjugal
partnership of gains, under which 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
spouse shall be divided equally between them (Art. 142. Civil Code). Thus: 1) The
salary of Luis deposited in the bank in the amount of P200.000.00 and the house and lot
valued at P500,000.00 shall be divided equally between Luis and Rizza. 2) However,
the car worth P100.000,00 donated to Rizza by her parents shall be considered to her
own paraphernal property, having been acquired by lucrative title (par. 2, Art. 148, Civil
Code).

For five years since 1989, Tony, a bank Vice-president, and Susan, an entertainer, lived
together as husband and wife without the benefit of marriage although they were
capacitated to many each other. Since Tony's salary was more than enough for their
needs, Susan stopped working and merely "kept house". During that period, Tony was
able to buy a lot and house in a plush subdivision. However, after five years, Tony and
Susan decided to separate. Who will be entitled to the house and lot?
Tony and Susan are entitled to the house and lot as coowners in equal shares.
Under Article 147 of the Family Code, when a man and a woman who are capacitated
to marry each other lived exclusively with each other as husband and wife, the property
acquired during their cohabitation are presumed to have been obtained by their joint
efforts, work or industry and shall be owned by them in equal shares. This is true even
though the efforts of one of them consisted merely in his or her care and maintenance
of the family and of the household.

Would it make any difference if Tony could not marry Susan because he was previously
married to Alice from whom he is legally separated?
Yes, it would make a difference. Under Article 148 of the Family Code, when the
parties to the cohabitation could not marry each other because of an impediment, only
those properties acquired by both of them through their actual joint contribution of
money, property, or Industry shall be owned by them in common in proportion to their
respective contributions. The efforts of one of the parties in maintaining the family and
household are not considered adequate contribution in the acquisition of the properties.
Since Susan did not contribute to the acquisition of the house and lot, she has no share
therein. If Tony cohabited with Susan after his legal separation from Alice, the house
and lot is his exclusive property. If he cohabited with Susan before his legal separation
from Alice, the house and lot belongs to his community or partnership with Alice.
If there is no marriage settlement, the salary of a "spouse" in an adulterous marriage
belongs to the conjugal partnership of gains.
False. In adulterous relationship, the salary of a married partner belongs to the
absolute community, or conjugal partnership, of such married partner with his or her
lawful spouse. Under Articles 148 of the Family Code, the property relations between
married partner and his/her paramour is governed by ordinary co-ownership where the
partners become co-owners only when they contributed to the acquisition of the
property. The paramour is deemed to have not contributed in the earning of the salary
of the married partner.

Spouses Primo and Monina Lim, childless, were entrusted with the custody of two (2)
minor children, the parents of whom were unknown. Eager of having children of their
own, the spouses made it appear that they were the children’s parents by naming them
Michelle P. Lim and Michael Jude Lim. Subsequently, Monina married Angel Olario after
Primo’s death. She decided to adopt the children by availing the amnesty given under
R.A. 8552 to those individuals who simulated the birth of a child. She filed separate
petitions for the adoption of Michelle, then 25 years old and Michael, 18. Both Michelle
and Michael gave consent to the adoption. The trial court dismissed the petition and
ruled that Monina should have filed the petition jointly with her new husband. Monina, in
a Motion for Reconsideration argues that mere consent of her husband would suffice
and that joint adoption is not needed, for the adoptees are already emancipated. Is the
trial court correct in dismissing the petitions for adoption? Explain.
Yes, the trial court was correct. At the time the petitions for adoptions were filed,
petitioner had already remarried. Under the law, husband and wife shall adopt jointly,
except in the cases enumerated in the law. The adoption cases of Michelle and James
do not fall in any of the exceptions provided in the law where a spouse is permitted to
adopt alone. Hence, Monina should adopt jointly with her husband Angel.

Jambrich, an Austrian, fell in-love and lived together with Descallar and bought their
houses and lots at Agro-Macro Subdivision. In the Contracts to Sell, Jambrich and
Descallar were referred to as the buyers. When the Deed of Absolute Sale was
presented for registration before the Register of Deeds, it was refused because
Jambrich was an alien and could not acquire alienable lands of the public domain. After
Jambrich and Descallar separated, Jambrich purchased an engine and some
accessories for his boat from Borromeo. To pay for his debt, he sold his rights and
interests in the Agro-Macro properties to Borromeo.

Borromeo discovered that titles to the three (3) lots have been transfereed in the name
of Descallar. Who is the rightful owner of the properties? Explain.
It depends. On the assumption that the Family Code is the applicable law, the
ownership of the properties depends on whether or not, Jambrich and Descallar are
capacitated to marry each other during their cohabitation, and whether or not both have
contributed funds for the acquisition of the properties.
If both of them are capacitated to marry each other, Art 147- co-ownership will
apply to their property relations and the properties in question are owned by them in
equal shares even though all the funds used in acquiring the properties came only from
the salaries or wages, or the income of Jambrich from his business or profession. In
such case, while Jambrich is disqualified to own any part of the properties, his
subsequent transfer of all his interest therein to Borromeo, a Filipino, was valid as it
removed the disqualification. In such case, the properties are owned by Borromeo and
Descallar in equal shares.
If, on the other hand, Jambrich and Descallar were not capacitated to marry each
other Art. 148-co-ownership governs their property relations. Under this regime,
Jambrich and Descallar are co-owners of the properties but only if both of them
contributed in their acquisition. If all the funds used in acquiring the properties in
question came from Jambrich, the entire property is his even though he is disqualified
from owning it. His subsequent transfer to Borromeo, however, is valid as it removed
the disqualification. In such case, all the properties are owned by Borromeo. If, on the
other hand Descallar contributed to their acquisition, the properties are co-owned by
Descallar and Borromeo in proportion to the respective contributions of the Descallar
and Jambrich.

G and B were married on July 3, 1989. On March 4, 2001, the marriage, which bore no
offspring, was declared void ab initio under Article 36 of the Family Code. At the time of
the dissolution of the marriage, the couple possessed the following properties:
a house and lot acquired by B on August 3, 1988, one third (1/3) of the purchase
price (representing downpayment) of which he paid; one third (1/3) was paid by G on
February 14, 1990 out of a cash gift
given to her by her parents on her graduation on April 6, 1989; and the balance was
paid out of the spouses’ joint income; and
an apartment unit donated to B by an uncle on June 19, 1987. Who owns the
foregoing properties? Explain.
Since the marriage was declared void ab initio in 2001, no Absolute
Community or Conjugal Partnership was ever established between B and G. Their
property relation is governed by a “special co-ownership” under Article 147 of the Family
Code because they were capacitated to marry each other.
Under that Article 147, wages and salaries of the “former spouses” earned during
their cohabitation shall be owned by them in equal shares while properties acquired thru
their work for industry shall be owned by them in proportion to their respective
contributions. Care and maintenance of the family is recognized as a valuable
contribution. In the absence of proof as to the value of their respective contributions,
they shall share equally.
If ownership of the house and lot was acquired by B on August 3, 1988 at the
time he bought it on installment before he got married, he shall remain owner of the
house and lot but he must reimburse G for all the amounts she advanced to pay the
purchase price and for one-half share in the last payment from their joint income. In
such case, the house and lot were not acquired during their cohabitation, hence, are not
co-owned by B and G.
But if the ownership of the house and lot was acquired during the cohabitation,
the house and lot will be owned as follows:
(1) 1/3 of the house and lot is owned by B. He is an undivided co-owner to that
extent for his contributions in its acquisition in the form of the down payment he made
before the celebration of the marriage. The money he used to pay the down payment
was not earned during the cohabitation, hence, it is his exclusive property.
(2) 1/3 of the house and lot is owned by G. She is an undivided co-owner to the
extent for her contribution in its acquisition when she paid 1/3 of the purchase price
using the gift from her parents. Although the gift was acquired by G during her
cohabitation with B, it is her exclusive property. It did not consist of wage or salary or
fruit of her work or industry.
 (3) 1/3 of the house is co-owned by B and G because the payment came from
their co-owned funds, i.e., their joint income during their cohabitation which is shared by
them equally in the absence of any proof to the contrary.
After summing up their prospective shares, B and G are undivided co-owners of
the house and lot in equal shares.
As to the apartment, it is owned exclusive by B because he acquired it before
their cohabitation. Even if he acquired it during their cohabitation, it will still be his
exclusive property because it did not come from his wage or salary, or from his work or
industry. It was acquired gratuitously from his uncle.

If G and B had married on July 3, 1987 and their marriage was dissolved in 2007, who
owns the properties? Explain.
The answer is the same as in letter A. Since the parties to the marriage which
was later declared void ab initio were capacitated to marry each other, the applicable
law under the New Civil Code was Article [Link] Article is substantially the same as
Article 147 of the Family Code.
Hence, the determination of ownership will remain the same as in question A.
And even assuming that the two provisions are not the same, Article 147 of the Family
Code is still the law that will govern the property relations of B and G because under
Article 256, the Family Code has retroactive effect insofar as it does not prejudice or
impair vested or acquired rights under the new Civil Code or other laws. Applying Article
147 retroactively to the case of G and B will not impair any vested right. Until the
declaration of nullity of the marriage under the Family Code, B and G have not as yet
acquired any vested right over the properties acquired during their cohabitation.

Family home
In 1991, Victor established judicially out of conjugal property, a family home in Manila
worth P200.000.00 and extrajudicially a second family home in Tagaytay worth
P50.000.00. Victor leased the family home in Manila to a foreigner. Victor and his family
transferred to another house of his in Pasig. Can the two family homes be the subject of
execution on a judgment against Victor's wife for non-payment of the purchase in 1992
of household appliances?
The two (2) so-called family homes can be the subject of execution. Neither of
the abodes are considered family homes because for purposes of availing the benefits
under the Family Code, there can only be one (1) family home which is defined as the
"dwelling house" where the husband and the wife and their family actually "reside" and
the land on which it is situated. (Arts. 152 and 161, Family Code).

Paternity and filiation

Ed and Beth have been married for 20 years without children. Desirous to have a baby,
they consulted Dr. Jun Canlas, a , prominent medical specialist on human fertility. He
advised Beth to undergo artificial insemination. It was found that Ed’s sperm count was
inadequate to induce pregnancy Hence, the couple looked for a willing donor. Andy the
brother of Ed, readily consented to donate his perm. After a series of test, Andy's sperm
was medically introduced into Beth's ovary. She became pregnant and 9 months
later, gave birth to a baby boy, named Alvin. Who is the Father of Alvin? Explain.
 Andy is the biological father of Alvin being the source of the sperm. Andy is the
legal father of Alvin because there was neither consent nor ratification to the artificial
insemination. Under the law, children conceived by artificial insemination are legitimate
children of the spouses, provided, that both of them authorized or ratified the
insemination in a written instrument executed and signed by both of them before the
birth of the child (Art. 164, Family Code).
What are the requirements, if any, in order for Ed to establish his paternity over Alvin.
The following are the requirements for Ed to establish his paternity over Alvin: the
artificial insemination has been authorized or ratified by the spouses in a written
instrument executed and signed by them before the birth of the child; and the written
instrument is recorded in the civil registry together with the birth certificate of the child
(Art. 164, 2nd paragraph, Family Code).

Gigolo entered into an agreement with Majorette for her to carry in her womb his baby
via in vitro fertilization. Gigolo undertook to underwrite Majorette’s pre-
natal expenses as well as those attendant to her delivery. Gigolo would thereafter pay
Majorette P2 million and, in return, she would give custody of the baby to him.
After Majorette gives birth and delivers the baby to Gigolo following her receipt of P2
million, she engages your services as her lawyer to regain custody of the baby. What
legal action can you file on behalf of Majorette? Explain.
As her lawyer, I can file a petition for habeas corpus on behalf Majorette to
recover custody of her child. Since she is the mother of the child that was born out of
wedlock, she has exclusive parental authority and custody over the child. Gigolo,
therefore, has no right to have custody of the child and his refusal to give up custody will
constitute illegal detention for which habeas corpus is the proper remedy.

Can Gigolo demand from Majorette the return of the P2 million if he returns the baby?
Explain.
No, he cannot. Both he and Majorette are guilty of violating the provision of the
Anti-Child Abuse Law (RA7610) on child trafficking. Being in pari delicto, the partners
shall be left where they are and Gigolo cannot demand the return of what he paid.

Is the child entitled to support and inheritance from Gigolo? Explain.

If Gigolo voluntarily recognized the child as his illegitimate child in accordance
with Article 175 in relation to Article 172 of the Family Code, the child is entitled to
support and inheritance from Gigolo.

Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16
years old, they started to live together as husband and wife without the benefit of
marriage. When Faye reached 18 years of age, her parents forcibly took her back and
arranged for her marriage to Brad. Although Faye lived with Brad after the marriage,
Roderick continued to regularly visit Faye while Brad was away at work. During their
marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad
discovered her continued liason with Roderick and in one of their heated arguments,
Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a
marriage license, claiming that they have been continuosly cohabiting for more than 5
years. What is the filiation status of Laica?
Laica is legitimate because children conceived or born during the marriage of the
parents are presumed to be legitimate (Art. 164, FC).

Can Laica bring an action to impugn her own status on the ground that based on DNA
results, Roderick is her biological father?
No. Laica cannot bring an action to impugn her own status. According to the
Supreme Court impugning the legitimacy of the child is a strictly personal right of
husband, except: (a) when the husband died before the expiration of the period fixed for
bringing the action; (b) if he should die after the filing of the complaint, without having
desisted therefrom, or (c) if the child was born after the death of the husband. Laica's
case does not fall under any of the exceptions.

Can Laica be legitimated by the marriage of her biological parents?

No. Laica cannot be legitimated by the marriage of her biological parents
because 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 (Art. 177, FC).

Four children, namely: Alberto, Baldomero, Caridad, and Dioscoro, were born to the
spouses Conrado and Clarita de la Costa. The children’s birth certificates were duly
signed by Conrado, showing them to be the couple’s legitimate children.
Later, one Edilberto de la Cruz executed a notarial document acknowledging Alberto
and Baldomero as his illegitimate children >with Clarita. Edilberto died leaving
substantial properties. In the settlement of his estate, Intervened deceased’s
legitimate family of Edilberto opposed the Alberto claimingillegitimate and Baldomero
shares as the children. The claim. Are Alberto and Baldomero entitled to share in the
estate of Edilberto? Explain.
No, Alberto and Baldomero are not entitled to share in Edilberto’s estate They
are not related at all to Edilberto. They were born during the marriage of Conrado and
Clarita, hence, are considered legitimate children of the said spouses. This status is
conferred on them at birth by law.
Under Philippine law, a person cannot have more than one natural filiation. The
legitimate filiation of a person can be changed only if the legitimate father will
successfully impugn such status.
In the problem, therefore, the filiation of Alberto and Baldomero as legitimate
children of Condrado cannot be changed by their recognition by Edilberto as his
illegitimate children. Before they can be conferred the status of Edilberto’s illegitimate
children, Condrado must first impugn their legitimacy. Since Condrado has not initiated
any action to impugn their legitimacy, they continue to be the legitimate of Condrado.
They cannot be the illegitimate children of Edilberto at the same time. Not being the
illegitimate children of Edilberto, they have no right to inherit from him.

Legitimate children
Two (2) months after the death of her husband who was shot by unknown criminal
elements on his way home from office, Rose married her childhood boyfriend, and
seven (7) months after said marriage, she delivered a baby. In the absence of any
evidence from Rose as to who is her child's father, what status does the law give to said
child? Explain.
The child is legitimate of the second marriage under Article 168(2) of the Family
Code which provides that 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 three hundred days after the termination of
the former marriage.

B and G (college students, both single and not disqualified to marry each other) had a
romantic affair, G was seven months in the family way as of the graduation of B. Right
after graduation B went home to Cebu City. Unknown to G, B had a commitment to C
(his childhood sweetheart) to marry her after getting his college degree. Two weeks
after B marriage in Cebu City, G gave birth to a son E in Metro Manila. After ten years of
married life in Cebu, B became a widower by the sudden death of C in a plane crash.
Out of the union of B and C, two children, X and Y were born. Unknown to C while on
weekend trips to Manila during the last 5 years of their marriage, B invariably visited G
and lived at her residence and as a result of which, they renewed their relationship. A
baby girl F was born to B and G two years before the death of C. Bringing his family
later to Manila, B finally married G. Recently. G died. What are the rights of B's four
children: X and Y of his first marriage; and E and F, his children with G? Explain your
answer.
Under the facts stated, X and Y are legitimate children of B and C. E is the
legitimate children of B and G. E is the legitimated child of B&G. F is the illegitimate
child of B and C. As legitimate children of B and C, X and Y have the following rights: 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 the
Family Code on Support; and 3) To be entitled to the legitime and other successional
rights granted to them by the Civil Code. (Article 174, Family Code).
E is the legitimated child of B and G. Under Art. 177 of the Family Code, 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. E will have the same rights as X and Y.
F is the illegitimate child of B and G. F has the right to use the surname of G, her
mother, and is entitled to support as well as the legitime consisting of 1/2 of that of each
of X, Y and E. (Article 176, Family Code).

Proof of filiation
Abraham died intestate on 7 January 1994 survived by his son Braulio. Abraham's older
son Carlos died on 14 February 1990. Danilo who claims to be an adulterous child of
Carlos intervenes in the proceedings for the settlement of the estate of Abraham in
representation of Carlos. Danilo was legally adopted on 17 March 1970 by Carlos with
the consent of the " latter's wife. Under the Family Code, how may an illegitimate
filiation be proved? Explain.
Under Art. 172 in relation to Art. 173 and Art. 175 of the FC, the filiation of
illegitimate children may be established in the same way and by the same evidence as
legitimate children. Art. 172 provides that 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.

As lawyer for Danilo, do you have to prove Danilo's illegitimate filiation? Explain.
No. Since Danilo has already been adopted by Carlos, he ceased to be an
illegitimate child. An adopted child acquires all the rights of a legitimate child under Art,
189 of the FC.

Can Danilo inherit from Abraham in representation of his father Carlos? Explain.
No, he cannot. Danilo cannot represent Carlos as the latter's adopted child in the
inheritance of Abraham because adoption did not make Danilo a legitimate grandchild
of Abraham. Adoption is personal between Carlos and Danilo. He cannot also represent
Carlos as the latter's illegitimate child because in such case he is barred by Art. 992 of
the NCC from inheriting from his illegitimate grandfather Abraham.

In 1997, B and G started living together without the benefit of marriage. The relationship
produced one offspring, Venus. The couple acquired a residential lot in Parañaque.
After four (4) years or in 2001, G having completed her 4-year college degree as a
fulltime student, she and B contracted marriage without a license. The marriage of B
and G was, two years later, declared null and void due to the absence of a marriage
license. Is Venus legitimate, illegitimate, or legitimated? Explain briefly.
Venus is illegitimate. She was conceived and born outside a valid marriage.
Thus, she is considered illegitimate (Art 165, Family Code). While Venus was
legitimated by the subsequent marriage of her parents, such legitimation was rendered
ineffective when the said marriage was later on declared null and void due to absence
of a marriage license.
Under Article 178 of the Family Code, “legitimation shall take place by a subsequent
valid marriage between parents. The annulment of a voidable marriage shall not affect
the legitimation.” The inclusion of the underscored portion in the Article necessarily
implies that the Article's application is limited to voidable marriages. It follows that when
the
subsequent marriage is null or void, the legitimation must also be null and void. In the
present problem, the marriage between B and G was not voidable but void. Hence,
Venus has remained an illegitimate child.

Spouses B and G begot two offspring. Albeit they had serious personality differences,
the spouses continued to live under one roof. B begot a son by another woman. G also
begot a daughter by another man. If G gives the surname of B to her daughter by
another man, what can B do to protect their legitimate children's interests? Explain.
B can impugn the status of G's daughter by another man as his legitimate
daughter on the ground that for biological reason he could not have been the father of
the child, a fact that may be proven by the DNA test. Having been born during the
marriage between B and G, G's daughter by another man is presumed as the child of B
under Article 164 of the Family Code. In the same action to impugn, B can pray for the
correction of the status of the said daughter in her record of birth.

If B acquiesces to the use of his surname by G’s daughter by another man, what is/are
the consequence/s? Explain.
If B acquiesces and does not file the action to impugn the legitimacy of the child
within the prescriptive period for doing so in Article 170 of the Family Code, G's
daughter by another man shall be conclusively presumed as the legitimate daughter of
B by G.

Illegitimate children
Nestor is the illegitimate son of Dr. Perez. When Dr. Perez died, Nestor
intervened in the settlement of his father's estate, claiming that he is the illegitimate son
of said deceased, but the legitimate family of Dr. Perez is denying Nestor's claim. What
evidence or evidences should Nestor present so that he may receive his rightful share
in his father's estate?
To be able to inherit, the illegitimate filiation of Nestor must have been admitted
by his father in any of the following:
(1) the record of birth appearing in the civil register,
(2) a final judgment,
(3) a public document signed by the father, or
(4) a private handwritten document signed by the lather (Article 171 in relation to Article
172 of the Family Code).

RN and DM, without any impediment to marry each other, had been living together
without benefit of church blessings. Their common-law union resulted in the birth of
ZMN. Two years later, they got married in a civil ceremony. Could ZMN be legitimated?
Reason.
ZMN was legitimated by the subsequent marriage of RN and DM because at the
time he was conceived, RN and DM could have validly married each other. Under the
Family Code children conceived and born outside of wedlock of parents who, at the time
of the former's conception, were not disqualified by any impediment to marry each other
are legitimated by the subsequent marriage of the parents.

Steve was married to Linda, with whom he had a daughter, Tintin. Steve fathered a son
with Dina, his secretary of 20 years, whom Dina named Joey, born on September 20,
1981. Joey's birth certificate did not indicate the father's name. Steve died on August
13, 1993, while Linda died on December 3, 1993, leaving their legitimate daughter,
Tintin, as sole heir. On May 16, 1994, Dina filed a case on behalf of Joey, praying that
the latter be declared an acknowledged illegitimate son of Steve and that Joey be given
his share in Steve's estate, which is now being solely held by Tintin. Tintin put up the
defense that an action for recognition shall only be filed during the lifetime of the
presumed parents and that the exceptions under Article 285 of the Civil Code do not
apply to him since the said article has been repealed by the Family Code. In any case,
according to Tintin, Joey's birth certificate does not show that Steve is his father. Does
Joey have a cause of action against Tintin for recognition and partition? Explain.
No, Joey does not have a cause of action against Tintin for recognition and
partition. Under Article 175 of the Family Code, as a general rule, an action for
compulsory recognition of an illegitimate child can be brought at any time during the
lifetime of the child. However, if the action is based on "open and continuous
possession of the status of an illegitimate child, the same can be filed during the lifetime
of the putative father."
In the present case, the action for compulsory recognition was filed by Joey's
mother, Dina, on May 16,1994, after the death of Steve, the putative father. The action
will prosper if Joey can present his birth certificate that bears the signature of his
putative father. However, the facts clearly state that the birth certificate of Joey did not
indicate the father's name. A birth certificate not signed by the alleged father cannot be
taken as a record of birth to prove recognition of the child, nor can said birth certificate
be taken as a recognition in a public instrument. Consequently, the action filed by Joey's
mother has already prescribed.

Are the defenses set up by Tintin tenable? Explain.

Yes, the defenses of Tintin are tenable. In Tayag v. Court of Appeals (G.R. No.
95229, June 9,1992), a complaint to compel recognition of an illegitimate child was
brought before effectivity of the Family Code by the mother of a minor child based on
"open and continuous possession of the status of an illegitimate child." The Supreme
Court held that the right of action of the minor child has been vested by the filing of the
complaint in court under the regime of the Civil Code and prior to the effectivity of the
Family Code. The ruling in Tayag v. Court of Appeals finds no application in the instant
case. Although the child was born before the effectivity of the Family Code, the
complaint was filed after its effectivity. Hence, Article 175 of the Family Code should
apply and not Article 285 of the Civil Code.

Supposing that Joey died during the pendency of the action, should the action be
dismissed? Explain.
If Joey died during the pendency of the action, the action should still be
dismissed because the right of Joey or his heirs to file the action has already
prescribed. (Art. 175, Family Code).

Legitimated children
Gianna was born to Andy and Aimee, who at the time Gianna's birth were not married to
each other. While Andy was single at the time, Aimee was still in the process of
securing a judicial declaration of nullity on her marriage to her ex-husband. Gianna's
birth certificate, which was signed by both Andy and Aimee, registered the status of
Gianna as "legitimate", her surname carrying that of Andy's and that her parents were
married to each other. Assuming that Aimee is successful in declaring her former
marriage void, and Andy and Aimee subsequently married each other, would Gianna be
legitimated?
Gianna cannot be legitimated by the subsequent marriage of Andy and Aimee.
Art. 177 of the FC provides that "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." In the present case, a legal
impediment was existing at the time of the conception of Gianna. Her mother, Aimee,
was still alive in the process of securing judicial declaration of nullity on her marriage to
her ex-husband.

A dead child can be legitimated.

TRUE To be legitimated, the law does not require a child to be alive at the same
time of the marriage of his / her parents ( Article 177, FC ). Furthermore, Art. 181 of the
Family Code which states that “The legitimation of children who died before the
celebration of marriage will benefit their descendants,” does not preclude instances
where such legitimation will benefit no one but the child's ascendants ,or other
relatives .

Adoption
Domestic adoption (RA 8552)
Who may adopt
The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of
good moral character, has not been convicted of any crime involving moral turpitude,
emotionally and psychologically capable of caring for children, at least sixteen (16)
years older than the adoptee, and who is in a position to support and care for his/her
children in keeping with the means of the family. The requirement of sixteen (16) year
difference between the age of the adopter and adoptee may be waived when the
adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above stated for Filipino nationals:
Provided, That his/her country has diplomatic relations with the Republic of the
Philippines, that he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for adoption and maintains such
residence until the adoption decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government agency that he/she has the
legal capacity to adopt in his/her country, and that his/her government allows the
adoptee to enter his/her country as his/her adopted son/daughter: Provided, Further,
That the requirements on residency and certification of the alien's qualification to adopt
in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse
a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse;
or
(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
However, that the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the spouses.

In 1984, Eva, a Filipina, went to work as a nurse in the USA. There, she met and fell in
love with Paul, an American citizen, and they got married in 1985. Eva acquired
American citizenship in 1987. During their sojourn in the Philippines in 1990, they filed a
joint petition for the adoption of Vicky, a 7-year old daughter of Eva's sister. The
government, through the Office of the Solicitor General, opposed the petition on the
ground that the petitioners, being both foreigners, are disqualified to adopt Vicky. Is the
government's opposition tenable? Explain.
The government's position is untenable. Under paragraph 3, Article 184 of the
Family Code, an alien, as a general rule cannot adopt. However, an alien who is a
former Filipino citizen and who seeks to adopt a relative by consanguinity is qualified to
adopt, (par. 3[a], Art. 184, Family Code)
In the given problem, Eva, a naturalized American citizen would like to adopt
Vicky, a 7-year old daughter of her sister. Thus, under the above-cited provision, Eva is
qualified to adopt Vicky.

Would your answer be the same if they sought to adopt Eva's illegitimate daughter?
Explain.
My answer will still be the same. Paragraph 3(a) of Article 184 of the Family
Code does not make any distinction. The provision states that an alien who is a former
Filipino citizen is qualified to adopt a relative by consanguinity.

Supposing that they filed the petition to adopt Vicky in the year 2000, will your answer
be the same? Explain.
Yes, my answer will still be the same. Under Sec. 7(b), Art. III of the New
Domestic Adoption Act, an alien who possesses all the qualifications of a Filipino
national who is qualified to adopt may already adopt provided that his country has
diplomatic relations with the Philippines, that he has been living in the Philippines for at
least three (3) continuous years prior to the filing of the application for adoption and
maintains such residence until the adoption decree is entered, that he has been certified
by his diplomatic or consular office or any appropriate government agency that he has
the legal capacity to adopt in his country, and that his government allows the adoptee to
enter his country as his adopted child.

A German couple filed a petition for adoption of a minor Filipino child with the Regional
Trial Court of Makati under the provisions of the Child and Youth Welfare Code which
allowed aliens to adopt. Before the petition could be heard, the Family Code, which
repealed the Child and Youth Welfare Code, came into effect. Consequently, the
Solicitor General filed a motion to dismiss the petition, on the ground that the Family
Code prohibits aliens from adopting. If you were the judge, how will you rule on the
motion?
The motion to dismiss the petition for adoption should be denied. The law that
should govern the action is the law in force at the time of filing of the petition. At that
time, it was the Child and Youth Welfare Code that was in effect, not the Family Code.
Petitioners have already acquired a vested right on their qualification to adopt which
cannot be taken away by the Family Code.

Sometime in 1990, Sarah, born a Filipino but by then a naturalized American citizen,
and her American husband Tom, filed a petition in the Regional Trial Court of Makati, for
the adoption of the minor child of her sister, a Filipina. Can the petition be granted?
Yes, provided all the requisites are complied with. Sarah and her husband are
both qualified to adopt. Lina, as a former Filipino citizen, can adopt her minor child of
her sister.. The Supreme Court has held in several cases that when husband and wife
are required to adopt jointly, each one of them must be qualified to adopt in his or her
own right. However, the American husband must comply with the requirements of the
law including the residency requirement of three (3) years. Otherwise, the adoption will
not be allowed.

Lina, a former Filipina who became an American citizen shortly after her marriage to an
American husband, would like to adopt in the Philippines, jointly with her husband, one
of her minor brothers. Assuming that all the required consents have been obtained,
could the contemplated joint adoption in the Philippine prosper? Explain.
Yes, Lina and her American husband can jointly adopt a minor brother of Lina
because she and her husband are both qualified to adopt. Lina, as a former Filipino
citizen, can adopt her minor brother . The Supreme Court has held in several cases that
when husband and wife are required to adopt jointly, each one of them must be
qualified to adopt in his or her own right). However, the American husband must comply
with the requirements of the law including the residency requirement of three (3) years.
Otherwise, the adoption will not be allowed.

Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one- year old
foundling who had a severe heart ailment. During the pendency of the adoption
proceedings, Rafael died of natural causes. The Office of the Solicitor General files a
motion to dismiss the petition on the ground that the case can no longer proceed
because of the petitioner’s death. Should the case be dismissed?
No, if he died after all the requirements under the law have been complied with
and the case is already submitted for resolution, the court may grant the petition and
issue a decree of adoption despite the death of the adopter (Section 13, RA 8552).
Otherwise, the death of the petitioner shall have the effect terminating the proceedings.

Will your answer be the same if it was Dolly who died during the pendency of the
adoption proceedings? Explain.
 Yes, if it was Dolly who died, the case should be dismissed. Her death terminates
the proceedings (Art. 13, Domestic Adoption Law).

Eighteen-year old Filipina Patrice had a daughter out of wedlock whom she named
Laurie. At 26, Patrice married American citizen John who brought her to live with him in
the United States of America. John at once signified his willingness to adopt Laurie. Can
John file the petition for adoption? If yes, what are the requirements? If no, why?
No, John cannot file the petition to adopt alone. Philippine law requires husband
and wife to adopt jointly except on certain situations enumerated in the law. The case of
John does not fall in any of the exceptions (R.A. 8552).

Who may be adopted

The following may be adopted:
(a) Any person below eighteen (18) years of age who has been administratively or
judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of
legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been consistently
considered and treated by the adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died: Provided, That no
proceedings shall be initiated within six (6) months from the time of death of said
parent(s).

Spouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of
their marriage, Rex begot a child by another woman. He is now 10 years of age.
On Lea’s discovery of Rex’s fathering a child by another woman, she filed a petition for
legal separation which was granted. Rex now wants to adopt his illegitimate child.
Whose consent is needed for Rex’s adoption of his illegitimate child?
The consent of the 14-year-old legitimate child, of the 10- year -old illegitimate
child and of the biological mother of the illegitimate child are needed for the adoption
(Section 7 and 9, RA 8552). The consent of Lea is no longer required because there
was already a final decree of legal separation.

If there was no legal separation, can Rex still adopt his illegitimate child? Explain.
Yes, he can still adopt his illegitimate child but with the consent of his spouse, of
his 14-year-old legitimate child, of the illegitimate child, and of the biological mother of
the illegitimate child (Section 7 and 9, RA 8552).

Despite several relationships with different women, Andrew remained unmarried. His
first relationship with Brenda produced a daughter, Amy, now 30 years old. His second,
with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him no
children although Elena has a daughter Jane, from a previous relationship. His last, with
Fe, produced no biological children but they informally adopted without court
proceedings, Sandy's now 13 years old, whom they consider as their own. Sandy was
orphaned as a baby and was entrusted to them by the midwife who attended to Sandy's
birth. All the children, including Amy, now live with Andrew in his house. Is there any
legal obstacle to the legal adoption of Amy by Andrew? To the legal adoption of Sandy
by Andrew and Elena?
Yes, there is a legal obstacle to the legal adoption of Amy by Andrew. Under
Sec. 9(d) of RA 8552, the New Domestic Adoption Act of 1998, the written consent of
the illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living
with said adopter and the latter's spouse, if any, is necessary to the adoption. All the
children of Andrew are living with him. Andrew needs to get the written consent of Jon,
Ryan, Vina and Wilma, who are all ten (10) years old or more. Sandy's consent to
Amy's adoption is not necessary because she was not legally adopted by Andrew.
Jane's consent is likewise not necessary because she is not a child of Andrew. Sandy,
an orphan since birth, is eligible for adoption under Sec. 8(f) of RA 8552, provided that
Andrew obtains the written consent of the other children mentioned above, including
Amy and Elena obtains the written consent of Jane, if she is over ten years old (Sec.
9(d), RA 8552).

Rights of an adopted child

The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all
intents and purposes and as such is entitled to all the rights and obligations provided by
law to legitimate sons/daughters born to them without discrimination of any kind. To this
end, the adoptee is entitled to love, guidance, and support in keeping with the means of
the family.
In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal
rights of succession without distinction from legitimate filiation. However, if the adoptee
and his/her biological parent(s) had left a will, the law on testamentary succession shall
govern.

A Filipino couple, Mr. and Mrs. BM, Jr., decided to adopt YV, an orphan from St. Claire’s
orphanage in New York City. They loved and treated her like a legitimate child for they
have none of their very own. However, BM, Jr., died in an accident at sea, followed to
the grave a year later by his sick father, BM, Sr. Each left a sizable estate consisting of
bank deposits, lands and buildings in Manila. May the adopted child, YV, inherit from
BM, Jr.? May she also inherit from BM, Sr.? Is there a difference? Why? Explain.
YV can inherit from BM, Jr. The succession to the estate of BM, Jr. is governed
by Philippine law because he was a Filipino when he died (Article 16, Civil Code). Under
Article 1039 of the Civil Code, the capacity of the heir to succeed is governed by the
national law of the decedent and not by the national law of the heir. Hence, whether or
not YV can inherit from BM, Jr. is determined by Philippine law. Under Philippine law,
the adopted inherits from the adopter as a legitimate child of the adopter.
YV, however, cannot inherit, in his own right, from the father of the adopter, BM,
Sr., because he is not a legal heir of BM, Sr. The legal fiction of adoption exists only
between the adopted and the adopter. Neither may he inherit from BM, Sr. by
representing BM, Jr. because in representation, the representative must be a legal heir
not only of the person he is representing but also of the decedent from whom the
represented was supposed to inherit (Article 973, Civil Code).
Instances and effects of rescission
Upon petition of the adoptee, with the assistance of the Department if a minor or if over
eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may
be rescinded on any of the following grounds committed by the adopter(s): (a) repeated
physical and verbal maltreatment by the adopter(s) despite having undergone
counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code.
If the petition is granted, the parental authority of the adoptee's biological parent(s), if
known, or the legal custody of the Department shall be restored if the adoptee is still a
minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the
adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended certificate of birth of the
adoptee and restore his/her original birth certificate.
Succession rights shall revert to its status prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected.
All the foregoing effects of rescission of adoption shall be without prejudice to the
penalties imposable under the Penal Code if the criminal acts are properly proven.

In 1975, Carol begot a daughter Bing, out of wedlock. When Bing was ten years old,
Carol gave her consent for Bing's legal adoption by Norma and Manuel, which was
granted by the court in 1990. In 1991, Carol learned that Norma and Manuel were
engaged in a call-girl-ring that catered to tourists. Some of the girls lived with Norma
and Manuel. Carol got Bing back, who in the first place wanted to return to her natural
mother. Who has a better right to the custody of Bing, Carol or Norma?
If she was at least 18 years old, then she is no longer under parental authority
and neither Carol nor Norma can assert the prerogative to take custody. However, if she
was less than 18 years old, then Norma has a better right since the adoption by Norma
of Bing terminates the parental authority of Carol over Bing.
The natural mother, Carol, should have the better right in light of the principle that
the child's welfare is the paramount consideration in custody rights. Obviously, Bing's
continued stay in her adopting parents' house, where interaction with the call girls is
inevitable, would be detrimental to her moral and spiritual development. This could be
the reason for Bing's expressed desire to return to her natural mother. It should be
noted, however, that Bing is no longer a minor, being 19 years of age now. It is doubtful
that a court can still resolve the question of custody over one who is sui juris and not
otherwise incapacitated.

Aside from taking physical custody of Bing, what legal actions can Carol take to protect
Bing?
On the assumption that Bing is still a minor or otherwise incapacitated, Carol may
petition the proper court for resolution or rescission of the decree of adoption on the
ground that the adopting parents have exposed, or are exposing, the child to corrupt
influence, tantamount to giving her corrupting orders or examples. She can also ask for
the revesting in her of parental authority over Bing. If However, Bing is already 19 years
of age and therefore no longer a minor, it is not Carol but Bing herself who can petition
the court for judicial rescission of the adoption, provided she can show a ground for
disinheritance of an ascendant.
Carol may file an action to deprive Norma of parental authority under Article 231
of the Family Code or file an action for the rescission of the adoption under Article 191
in relation to Article 231 (2) of the Family Code.

Inter-country adoption (RA 8043, as amended)

When allowed?
Inter-country adoptions are allowed when the same shall prove beneficial to the
child's best interests, and shall serve and protect his/her fundamental rights.

Who may adopt?

Any foreign national or Filipino citizen permanently residing abroad who has the
qualifications and none of the disqualifications under the Act may file an Application if
he/she:
a. Is at least twenty-seven (27) years of age and is at least sixteen (16) years older than
the child to be adopted at the time of the filing of the application, unless the applicant is
the parent by nature of the child to be adopted or is the spouse of such parent by
nature;
b. Has the capacity to act and assume all the rights and responsibilities
incidental to parental authority under his/her national law;
c. Has undergone appropriate counseling from an accredited counselor in his/her
country;
d. Has not been convicted of a crime involving moral turpitude;
e. Is eligible to adopt under his/her national law;
f. Can provide the proper care and support and give the necessary moral values and
example to the child and, in the proper case, to all his/her other children;
g. Comes from a country
(i). With whom the Philippines has diplomatic relations;
(ii). Whose government maintains a foreign adoption agency; and (iii). Whose laws
allow adoption; and
h. Files jointly with his/her spouse, if any, who shall have the same qualifications and
none of the disqualifications to adopt as prescribed above.

Who may be adopted?

Any child who has been voluntarily or involuntarily committed to the Department
as dependent, abandoned or neglected pursuant to the provisions of the Child and
Youth Welfare Code may be the subject of Inter-Country Adoption; Provided that in the
case of a child who is voluntarily committed, the physical transfer of said child shall be
made not earlier than six (6) months from the date of execution of the Deed of Voluntary
Commitment by the child’s biological parent/s or guardian. Provided further, however,
that this prohibition against physical transfer shall not apply to children being adopted by
a relative or to children with special medical conditions.

Hans Berber, a German national, and his Filipino wife, Rhoda, are permanent residents
of Canada. They desire so much to adopt Magno, an 8-year old orphaned boy and a
baptismal godson of Rhoda. Since the accidental death of Magno's parents in 2004, he
has been staying with his aunt who, however, could hardly afford to feed her own family.
Unfortunately, Hans and Rhoda cannot come to the Philippines to adopt Magno
although they possess all the qualifications as adoptive parents. Is there a possibility for
them to adopt Magno? How should they go about it?
Yes, it is possible for Hans and Rhoda to adopt Magno. Republic Act No. 8043 or
the Inter-Country Adoption Act, as amended, allows aliens or Filipinos permanently
residing abroad to apply for inter-country adoption of a Filipino child. The law however
requires that only legally free child, or one who has been voluntarily or involuntarily
committed to the DSWD or any of its accredited agencies, may be subject of
intercountry adoption. The law further requires that aside from possessing all the
qualifications, the adoptive parents must come from a country where the Philippines has
diplomatic relations and that the government maintains a similarly accredited agency
and that adoption is allowed under the national law of the alien. Moreover, it must be
further shown that all possibilities for a domestic adoption have been exhausted and the
inter-country adoption is best for the interest of the child.
Hans and Rhoda have to file an application to adopt Magno, either with the
Regional Trial Court having jurisdiction over Magno or with the Inter-Country Adoption
Board in Canada. Hans and Rhoda will then undergo a trial custody for six (6) months
from the time of placement. It is only after the lapse of the trial custody that the decree
of adoption can be issued.

Support
G filed on July 8, 2000 a petition for declaration of nullity of her marriage to B. During
the pendency of the case, the couple entered into a compromise agreement to dissolve
their absolute community of property. B ceded his right to their house and lot and all his
shares in two business firms to G and their two children, aged 18 and 19.
B also opened a bank account in the amount of P3 million in the name of the two
children to answer for their educational expenses until they finish their college degrees.
For her part, G undertook to shoulder the day-to-day living expenses and upkeep of the
children. The Court approved then spouses’ agreement on September 8, 2000.
Suppose the business firms suffered reverses, rendering G unable to support herself
and the children. Can G still ask for support pendente lite from B? Explain.
If B acquiesces and does not file the action to impugn the legitimacy of the child
within the prescriptive period for doing so in Article 170 of the Family Code, G's
daughter by another man shall be conclusively presumed as the legitimate daughter of
B by G.

Suppose in late 2004 the two children had squandered the P3 million fund for their
education before they could obtain their college degrees, can they ask for more support
from B? Explain.
 Yes, the two children can still ask for support for schooling or training for some
professions, trade or vocation, even beyond the age of majority until they shall have
finished or completed their education (Article 194, Paragraph 2, Family Code; Javier v.
Lucero, 94 Phil. 634 {1954}].Their having squandered the money given to them for their
education will not deprive them of their right to complete an education, or to extinguish
the obligation of the parents to ensure the future of their children.

Despite several relationships with different women, Andrew remained unmarried. His
first relationship with Brenda produced a daughter, Amy, now 30 years old. His second,
with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him no
children although Elena has a daughter Jane, from a previous relationship. His last, with
Fe, produced no biological children but they informally adopted without court
proceedings, Sandy's now 13 years old, whom they consider as their own. Sandy was
orphaned as a baby and was entrusted to them by the midwife who attended to Sandy's
birth. All the children, including Amy, now live with Andrew in his house. In his old age,
can Andrew be legally entitled to claim support from Amy, Jon, Ryan, Vina, Wilma, and
Sandy assuming that all of them have the means to support him?
Andrew, in his old age, cannot be legally entitled to claim support because Art.
195, par 2 of the FC limits the giving of support to "legitimate ascendants and
descendants."

Can Amy, Jon, Ryan, Vina, Wilma, and Sandy legally claim support from each other?
Amy, Jon, Ryan, Vina, Wilma and Sandy cannot legally claim support from each
other because Art. 195, par 5 limits the giving of support to "legitimate brothers and
sisters, whether full or half blood."

Parental authority
Under Article 213 of the Family Code, no child under 7 years of age shall be separated
from the mother unless the court finds compelling reasons to order otherwise. Explain
the rationale of this provision.
The rationale of the 2nd paragraph of Article 213 of the Family Code is to avoid
the tragedy of a mother who sees her baby torn away from her. It is said that the
maternal affection and care during the early years of the child are generally needed by
the child more than paternal care. The general rule is that a child below 7 years old shall
not be separated from his mother due to his basic need for her loving care.

Give at least 3 examples of "compelling reasons" which justify the taking away from the
mother's custody of her child under 7 years of age.
The mother is insane;
The mother is sick with a disease that is communicable and might endanger the health
and life of the child;
The mother has been maltreating the child;
The mother is engaged in prostitution;
The mother is engaged in adulterous relationship;
The mother is a drug addict;
The mother is a habitual drunk or an alcoholic;
If during class hours, while the teacher was chatting with other teachers in the school
corridor, a 7 year old male pupil stabs the eye of another boy with a ball pen during a
fight, causing permanent blindness to the victim, who could be liable for damages for
the boy’s injury: the teacher, the school authorities, or the guilty boy’s parents? Explain.
The school, its administrators, and teachers have special parental authority and
responsibility over the minor child while under their supervision, instruction or custody
(Article 218, FC). They are principally and solidarily liable for the damages caused by
the acts or omissions of the unemancipated minor unless they exercised the proper
diligence required under the circumstances (Article 219, FC). In the problem, the
TEACHER and the SCHOOL AUTHORITIES are liable for the blindness of the victim,
because the student who cause it was under their special parental authority and they
were negligent. They were negligent because they were chatting in the corridor during
the class period when the stabbing incident occurred. The incident could have been
prevented had the teacher been inside the classroom at that time. The guilty boy’s
PARENTS are subsidiarily liable under Article 219 of the Family Code.

Distinguish briefly but clearly between: Substitute parental authority and special parental
authority.
In substitute parental authority, the parents lose their parental authority in favor of
the substitute who acquires it to the exclusion of the parents.
In special parental authority, the parents or anyone exercising parental authority does
not lose parental authority. Those who are charged with special parental authority
exercise such authority only during the time that the child is in their custody or
supervision.
Substitute parental authority displaces parental authority while special parental authority
concurs with parental authority.

Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year old
girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital
and other medical expenses in delivering the child by caesarean section; moral,
claiming that Rodolfo promised to marry her, representing that he was single when, in
fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios. When Rona
reaches seven (7) years old, she tells Rodolfo that she prefers to live with him, because
he is better off financially than Nanette. If Rodolfo files an action for the custody of
Rona, alleging that he is Rona’s choice as custodial parent, will the court grant
Rodolfo’s petition? Why or why not?
No, because Rodolfo has no parental authority over Rona. He who has the
parental authority has the right to custody. Under the Family Code, the mother alone
has parental authority over the illegitimate child. This is true even if illegitimate father
recognized the child and even though he is giving support for the child. To acquire
custody over Rona, Rodolfo should first deprive Nanette of parental authority if there is
ground under the law, and in a proper court proceedings. In the same action, the court
may award custody of Rona to Rodolfo if it is for her best interest.
Gigolo entered into an agreement with Majorette for her to carry in her womb his baby
via in vitro fertilization. Gigolo undertook to underwrite Majorette’s pre- natal expenses
as well as those attendant to her delivery. Gigolo would thereafter pay Majorette P2
million and, in return, she would give custody of the baby to him. After Majorette gives
birth and delivers the baby to Gigolo following her receipt of P2 million, she engages
your services as her lawyer to regain custody of the baby. Who of the two can exercise
parental
authority over the child? Explain.
Majorette, the mother, can exercise parental authority. Since the child was born
out of wedlock, the child is illegitimate and the mother has the exclusive parental
authority and custody over the child.

Emancipation
Julio and Lea, both 18 years old, were sweethearts. At a party at the house of a mutual
friend. Lea met Jake, also 18 years old, who showed interest in her. Lea seemed to
entertain Jake because she danced with him many times. In a fit of jealousy, Julio shot
Jake with his father's 38 caliber revolver which, before going to the party he was able to
get from the unlocked drawer inside his father's bedroom. Jake died as a result of the
lone gunshot wound he sustained. His parents sued Julio's parents for damages arising
from quasi-delict. At the time of the incident, Julio was 18 years old living with his
parents. Julio's parents moved to dismiss the complaint against them claiming that since
Julio was already of majority age, they were no longer liable for his acts. Should the
motion to dismiss be granted? Why?
No, the Motion to Dismiss should not be granted. Article 236 of the Family Code
as amended by Republic Act 6809, provides in the third paragraph that "nothing in this
Code shall be construed to derogate from the duty or responsibility of parents and
guardians for children and wards below twenty-one years of age mentioned in the
second and third paragraphs of Article 2180 of the Civil Code.

What is the liability of Julio's parents to Jake's parents? Explain your answer.
The liability of Julio's parents to Jake's parents arises from quasi-delict (Arts.
2176 and 2180 Civil Code) and shall cover specifically the following: a) P50,000.00 for
the death of the son; b) such amount as would correspond to lost earning
capacity; and c) moral damages.

Retroactivity of the Family Code

On April 15, 1980, Rene and Angelina were married to each other without a marriage
settlement. In 1985, they acquired a parcel of land in Quezon City. On June 1, 1990,
when Angelina was away in Baguio, Rene sold the said lot to Marcelo. Is the sale void
or voidable?
The sale is void. Since the sale was executed in 1990, the Family Code is the
law applicable. Under Article 124 of the FC, the sale of a conjugal property by a spouse
without the consent of the other is void.