CIVIL LAW | Persons and Family Relations | Atty. Elmer T.

Rabuya

Personality of Conceived Child is limited: only for purposes

favorable to it. It depends upon the child being born alive
PERSONS AND FAMILY later.
Personality of a conceived child has two characteristics.
RELATIONS It is essentially limited, for the purposes favorable to the
CIVIL LAW child It is provisional or conditional, such that if the child is
ATTY. ELMER T. RABUYA not born alive, it is deemed to have never been existed

The rights of an unborn child include the following:

Juridical Personality - Right to receive support from progenitors, even if
such child is en ventre de sa mere
Art. 37. Juridical capacity, which is the fitness to be the - It may receive donations as prescribed under Art.
subject of legal relations, is inherent in every natural person 742 NCC.
and is lost only through death. Capacity to act, which is - It may not be ignored by the parent in his
the power to do acts with legal effect, is acquired and may testament.
be lost. (n) ∙ - May be a beneficiary in an insurance policy

Personality is the aptitude to be subject, active or passive, Geluz v. CA, G.R. No. L-16439 (1961)
of judicial relations. Natural persons are human beings
An aborted fetus never acquired legal rights/civil
while juridical persons are artificial beings susceptible of
personality because it was not alive at the time of delivery
rights and obligations or being the subject of legal relations
from the mother’s womb. No damages can be claimed in
behalf of the unborn child since an action for pecuniary
Juridical capacity is static condition, indivisible, it is enough
damages on account of personal injury or death pertains
that the person exists, lost only in death, cannot be limited
primarily to the one injured.
or restricted ∙
“This is not to say that the parents [of an aborted fetus] are
2 kinds of personality
not entitled to collect any damages at all. But such
- Natural persons
damages must be those inflicted directly upon them as
- Juridical Persons
distinguished from the injury or violation of the rights of the
[aborted fetus]” e.g. moral damages for their loss and the
Art. 40. Birth determines personality; but the conceived disappointment of their parental expectations
child shall be considered born for all purposes that are
favorable to it, provided it be born later with the conditions
Art. 42. Civil personality is extinguished by death. The
specified in the following article. (29a) ∙
effect of death upon the rights and obligations of the
deceased is determined by law, by contract and by will.
Art. 41. For civil purposes, the fetus is considered born if it
(32a)
is alive at the time it is completely delivered from the
mother’s womb. However, if the fetus had an intra-uterine
Art. 43. If there is a doubt, as between two or more
life of less than seven months, it is not deemed born if it
persons who are called to succeed each other, as to
dies within twenty-four hours after its complete delivery
which of them died first, whoever alleges the death of one
from the maternal womb. (30a)
prior to the other, shall prove the same; in the absence of
proof, it is presumed that they died at the same time and
This proviso in Art. 40 is not a condition precedent to the there shall be no transmission of rights from one to the
right of the conceived child; for if it were, the first part of other. (33)
Article 40 would become entirely useless and ineffective.
Art. 43 is not applicable when there is no question of
Intra Uterine Life When infant possesses civil succession.
personality Rules on succession
Less than 7 months If alive after completion of - If both are <15, the older is deemed to have
24 hours from delivery survived ∙
7 months or more If alive (e.g. can breathe - If both are >60, the younger is deemed to have
independently, etc.) upon survived ∙
delivery - If one is <15 and the other >60, the former is
deemed to have survived ∙
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- If both are >15 and <60, and different sezes, the - One of the parties in a subsequent marriage is a party
male is deemed to have survived. to a prior marriage but did not comply with article 52
- If same sex, the older is deemed to have survived - One of the parties to the marriage is psychologically
∙ If one is <15 or >60, and the other in between incapacitated
those ages, the latter is deemed to have survived. - Incestuous marriage
Marital Relationships - Marriage void by public policy

Article 1. Marriage is a special contract of permanent union Art. 2. No marriage shall be valid, unless these essential
between a man and a woman entered into in accordance requisites are present:
with law for the establishment of conjugal and family life. It
is the foundation of the family and an inviolable social (1) Legal capacity of the contracting parties who must be a
institution whose nature, consequences, and incidents are male and a female; and
governed by law and not subject to stipulation, except that (2) Consent freely given in the presence of the solemnizing
marriage settlements may fix the property relations during officer. (53a)
the marriage within the limits provided by this Code. (52a)
Art. 3. The formal requisites of marriage are:
TWO ASPECTS (1) Authority of the solemnizing officer;
- it is it is a contract but it is not a mere contract aside (2) A valid marriage license except in the cases provided
from being a contract for in Chapter 2 of this Title; and
- it is also a social institution, the state is very much (3) A marriage ceremony which takes place with the
interested in marriage appearance of the contracting parties before the
solemnizing officer and their personal declaration that they
There is only one area in marriage where the spouses are take each other as husband and wife in the presence of
allowed to enter into a contract prior to the celebration of not less than two witnesses of legal age. (53a, 55a)
the marriage: the future spouses are allowed by law to
enter into a contract known as marriage settlement by Regal capacity refers to the following requirements:
which the future spouses already fix the property relations Age Requirement
that will govern them during their marriage. - Must be 18 and above, below 18 marriage is void
ab initio
Note: the principle of separation of church and state - >18 and <21
cannot be invoked if the issue in the case is the validity of - Article 14 adds requirement of parental consent,
a marriage. lack of consent means marriage is voidable.
- The age requirement must be complied on the
Art. 26. All marriages solemnized outside the Philippines, date of marriage celebration
in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also Sex of the contracting parties
be valid in this country, except those prohibited under - Must be between a man and a woman
Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a)
Absence of Legal Impediments based on Article 37 and
Where a marriage between a Filipino citizen and a 38
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating Consent
him or her to remarry, the Filipino spouse shall have - This must be mutual
capacity to remarry under Philippine law. (As amended by - Manifestation of consent is made only by both
Executive Order 227) parties appearing before the solemnizing officer
and their personal declaration to take each other
Under paragraph 1, the following marriages are prohibited as husband and wife in the presence of at least 2
and void ab initio even if they are allowed in the country witnesses
where the marriage is celebrated:
- Both are Filipino and either or both parties is under 18 Authority of Solemnizing Officer
- If one of parties is Filipino and is under 18 - If the solemnizing officer is not authorized, the
- Marriage is bigamous or polygamous marriage is void ab initio unless either or both
- There is a mistake in the identity of the party by the parties believed in good faith that the officer had
other party the authority to solemnize the marriage

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The following has the authority to solemnize marriage (5) Those contracted through mistake of one
- Any incumbent member of the judiciary within contracting party as to the identity of the other;
their court’s jurisdiction; and
- Any priest, rabbi, imam, or minister of any church (6) Those subsequent marriages that are void under
or religious sect duly authorized by his church or Article 53. ∙
religious sect
- Any ship captain or airplane chief only in the case
of articulo mortis Marriage contracted by a person whose spouse as been
- Any military commander of a unit to which a absent for 4 years (ordinary) or 2 years (extraordinary
chaplain is assigned, in cases of articulo mortis absence), where such person has a aell founded belief that
- Any consul-general, consul or vice-consul in his/her absent spouse is already dead, and after the
limited cases absent spouse has been judicially declared to be
- Mayors presumed dead.

Valid Marriage License Article 53 provides that a person whose marriage has
- Absence of valid marriage license renders the been annulled may remarry as long as he complies with
marriage void ab intio Art 52 which requires that after the marriage is annulled,
- Marriage celebrated 120 days after issuance of the properties of the spouses must be partitioned and
license is void ab initio distributed and the presumptive legitimes of the children
- The exceptions where a valid marriage license be distributed.
may be dispensed are the following:
o In cases of articulo mortis Furthermore, the judgement of annulment or absolute
o When the parties are located in remote nullity, the partition and distribution of the spouses’
place where there are no means of properties, and the delivery of the children’s presumptive
transport available to obtain a valid legitimes must be recorded and in the appropriate civil
marriage license registry and registries of property. Failure to comply with
o Marriage among Muslims and ethnic these requisites will make the subsequent marriage void
groups provided they are solemnized in ab initio.
accordance with the customs, rights and
practices Conditions mentioned in Art 35 apply even if marriage is
solemnized outside the territorial jurisdiction of our country,
Marriage Ceremony under the conditions for marriage prescribed by those
- Solemnization of the marriage comprehends both countries.
parties’ personal appearance before the person
authorized to solemnize the marriage Article 35 are not exclusive to those conditions mentioned.
- Common-law marriages and marriages by proxy
are not recognized in the Philippines Art. 36. A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated
Void and Voidable Marriages to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity
Art. 35. The following marriages shall be void from the becomes manifest only after its solemnization. (As
beginning: amended by Executive Order 227)
(1) Those contracted by any party below eighteen
years of age even with the consent of parents or Psychological Incapacity
guardians; There is no exact definition. However it usually means a
(2) Those solemnized by any person not legally constant, protacted and senseless refusal to perfom the
authorized to perform marriages unless such essential marital obligations by either or both parties, even
marriages were contracted with either or both if they are capable (Chi Ming Tsoi vs CA, 266 SCRA 234
parties believing in good faith that the solemnizing (1997)).
officer had the legal authority to do so;
(3) Those solemnized without license, except those Elements of Psychological Incapacity:
covered the preceding Chapter; 1. Mental Disposition
(4) Those bigamous or polygamous marriages not 2. Applies to the person maritally contracted to
failing under Article 41; another
3. Marriage entered into with volition
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4. Failure to perform or comply the essential marital (1) Between collateral blood relatives whether
obligations legitimate or illegitimate, up to the fourth civil
5. Such failure is chronic degree;
6. Cause is serious and that there is juridical (2) Between step-parents and step-children;
antecedence 7 (3) Between parents-in-law and children-in-law;
7. Incapacity results in failure in the marriage (4) Between the adopting parent and the adopted
child;
Characteristics: (5) Between the surviving spouse of the adopting
1. Gravity- severe enough to cause incapacity to parent and the adopted child; ∙
comply with essential marital obligations (6) Between the surviving spouse of the adopted
2. Juridical antecedence- incapacity must have child and the adopter;
existed before marriage celebration, even if (7) Between an adopted child and a legitimate child
symptoms manifested after the ceremony of the adopter;
3. Incurability- cure is not possible or beyond the (8) Between adopted children of the same adopter;
means available to the parties Jurisprudential and
(9) Between parties where one, with the intention to
Guidelines (Republic vs. CA and Molina, 26 SCRA 198 marry the other, killed that other person’s spouse,
(1997)): or his or her own spouse.
1. Burden of proof to show incapacity belongs to the
plaintiff. Art. 39. The action or defense for the declaration of
2. Root cause of psychological incapacity must be: absolute nullity of a marriage shall not prescribe. (As
a. medically or clinically identified b. alleged in the amended by Executive Order 227 and Republic Act No.
complaint c. sufficiently proved by experts d. 8533)
clearly explained in decision
3. Such incapacity must be proven to be existing at Art. 40. The absolute nullity of a previous marriage may be
the time of the celebration of marriage. invoked for purposes of remarriage on the basis solely of a
4. Such incapacity must be proven to be medically final judgment declaring such previous marriage void. (n)
or clinically permanent or incurable.
5. Such illness must be grave enough to bring about
the disability of the said party to perform the The phrase “However, in case of marriage celebrated
essential obligations of marriage before the effectivity of this Code and falling under Article
6. essential obligations of marriage must be those 36, such action or defense shall prescribe in ten years after
embraced by Art. 68-71, 220, 221 and 225 FC. this Code shall taken effect” has been deleted by Republic
7. Interpretations given by the National Appellate Act No. 8533 [Approved February 23, 1998]).
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, Nullity of the previous marriage must be sought for the
should be given great respect by our courts. purposes of remarriage is the sole basis for the freedom of
8. The Trial Court must order the prosecuting legal impediments of the previous marriage is the final
attorney or fiscal and the Solicitor General to judgment declaring the previous marriage void. Other than
appear as counsel for the state. for remarriage, there is no need for judicial action to
declare a marriage an absolute nullity.
Essential Marital Obligations must be those embraced in
Article 68 to 71 FC as regards to husband and wife and A marriage contracted without the final judgement
220, 221 and 225 for parents and children. declaring nullity of the previous marriage shall be void ab
initio
Art. 37. Marriages between the following are incestuous - Applies to cases where previous marriage is void
and void from the beginning, whether relationship between and one of the parties contracted a subsequent
the parties be legitimate or illegitimate: marriage.
(1) Between ascendants and descendants of any - Applies to remarriages during the effectivity of the
degree; and Family Code, regardless of the date of the first
(2) Between brothers and sisters, whether of the full marriage
or half blood. (81a)
Art. 41. A marriage contracted by any person during
Art. 38. The following marriages shall be void from the subsistence of a previous marriage shall be null and void,
beginning for reasons of public policy: unless before the celebration of the subsequent marriage,
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the prior spouse had been absent for four consecutive (1) The children of the subsequent marriage
years and the spouse present has a well-founded belief conceived prior to its termination shall be
that the absent spouse was already dead. In case of considered legitimate;
disappearance where there is danger of death under the a. Custody and support of such children
circumstances set forth in the provisions of Article 391 of may be subject to the agreement
the Civil Code, an absence of only two years shall be between the spouses of the subsequent
sufficient. For the purpose of contracting the subsequent marriage, or by a court in proper
marriage under the preceding paragraph the spouse proceeding in case of dispute
present must institute a summary proceeding as provided (2) The absolute community of property or the
in this Code for the declaration of presumptive death of the conjugal partnership, as the case may be, shall be
absentee, without prejudice to the effect of reappearance dissolved and liquidated, but if either spouse
of the absent spouse. (83a) contracted said marriage in bad faith, his or her
share of the net profits of the community property
General rule or conjugal partnership property shall be forfeited
Any person who contracts a second or subsequent in favor of the common children or, if there are
marriage before the former marriage has been legally none, the children of the guilty spouse by a
dissolved or before the absent spouse has been declared previous marriage or in default of children, the
as presumed dead by means of a judgement rendered in innocent spouse;
the proper proceedings is guilty of bigamy (3) Donations by reason of marriage shall remain
valid, except that if the donee contracted the
Exceptions marriage in bad faith, such donations made to
Exceptions are the conditions for the validity of a said donee are revoked by operation of law;
subsequent bigamous marriage under Article 41: (4) The innocent spouse may revoke the designation
1. Prior spouse of the contracting party must be of the other spouse who acted in bad faith as
absent for at least 4 years or, when there is beneficiary in any insurance policy, even if such
danger of death during the disappearance of the designation be stipulated as irrevocable; and
said spouse, 2 years. (5) The spouse who contracted the subsequent
2. The present spouse had a well-founded belief that marriage in bad faith shall be disqualified to inherit
the absent spouse is already dead from the innocent spouse by testate and intestate
3. There is a judicial declaration of the presumptive succession. (n)
death of the absent spouse for the purpose of the
spouse present can institute a summary Art. 44. If both spouses of the subsequent marriage acted
proceding in court to ask for that declaration. in bad faith, said marriage shall be void ab initio and all
(under the Family Code, otherwise the subsequent donations by reason of marriage and testamentary
marriage will be deemed void ab initio). dispositions made by one in favor of the other are revoked
by operation of law. (n)
After obtaining the judicial declaration of the presumptive
death of the absent spouse, the absentee spouse shall be Art. 45. A marriage may be annulled for any of the
presumed dead and the present spouse may contract a following causes, existing at the time of the marriage:
subsequent marriage
(1) That the party in whose behalf it is sought to have the
The mere reappearance of the absent spouse does not marriage annulled was eighteen years of age or over but
terminate the subsequent marriage. Only after the below twenty-one, and the marriage was solemnized
recording of the affidavit of reappearance (can be filed by without the consent of the parents, guardian or person
anyone who is interested) by the Civil Registrar can the having substitute parental authority over the party, in that
subsequent marriage be terminated automatically. order, unless after attaining the age of twenty-one, such
party freely cohabited with the other and both lived
The affidavit must state the facts surrounding the together as husband and wife;
reappearance of the absentee spouse and it must be
recorded by the Local Civil Registrar where the spouse (2) That either party was of unsound mind, unless such
resides. party after coming to reason, freely cohabited with the
other as husband and wife;
The termination of the subsequent marriage referred to in
the Article 42 shall produce the following effects: (3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
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facts constituting the fraud, freely cohabited with the other either party, or by the insane spouse during a lucid interval
as husband and wife; or after regaining sanity;

(4) That the consent of either party was obtained by force, (3) For causes mentioned in number 3 of Article 45, by the
intimidation or undue influence, unless the same having injured party, within five years after the discovery of the
disappeared or ceased, such party thereafter freely fraud;
cohabited with the other as husband and wife;
(4) For causes mentioned in number 4 of Article 45, by the
(5) That either party was physically incapable of injured party, within five years from the time the force,
consummating the marriage with the other, and such intimidation or undue influence disappeared or ceased;
incapacity continues and appears to be incurable; or
(5) For causes mentioned in number 5 and 6 of Article 45,
(6) That either party was afflicted with a by the injured party, within five years after the marriage.
sexually-transmissible disease found to be serious and (87a)
appears to be incurable. (85a)
Voidable marriages are those that have defects in the
Art. 46. Any of the following circumstances shall constitute essential requisite. Such marriage will remain valid and
fraud referred to in Number 3 of the preceding Article: produces valid civil effecs until it is set aside for final
judgement by a competent court in an action for
(1) Non-disclosure of a previous conviction by final annulment.
judgment of the other party of a crime involving moral - Annulment is the judicial or legal process of
turpitude; invalidating a voidable marriage.

(2) Concealment by the wife of the fact that at the time of Characteristics of voidable marriage
the marriage, she was pregnant by a man other than her - valid until otherwise declared by court
husband; - defect which serves as ground for annulment
must be present during the celebration of the
(3) Concealment of sexually transmissible disease, marriage
regardless of its nature, existing at the time of the - cannot be assailed collaterally except by direct
marriage; or proceeding
- can only be assailed during the lifetime of either
(4) Concealment of drug addiction, habitual alcoholism or party
homosexuality or lesbianism existing at the time of the - only parties to the marriage can assail it
marriage. - action for annulment is subject to prescription
- defect is subject to ratification except for ground in
No other misrepresentation or deceit as to character, par. 5 and 6 of Art. 45
health, rank, fortune or chastity shall constitute such fraud
as will give grounds for action for the annulment of Prescription period
marriage. (86a) - period of time allowed to file action for annulment

Art. 47. The action for annulment of marriage must be filed Ratification
by the following persons and within the periods indicated For ratification to be effective it must satisfy the following
herein: requisites:
- Contract is tainted with a vice that is susceptible
(1) For causes mentioned in number 1 of Article 45 by the to being cured
party whose parent or guardian did not give his or her - Ratification is effected by the person who is
consent, within five years after attaining the age of entitled to do it under law
twenty-one, or by the parent or guardian or person having - Effected with the knowledge of the vice or defect
legal charge of the minor, at any time before such party of the contract
has reached the age of twenty-one; - Cause of the nullity or defect should have already
disappeared
(2) For causes mentioned in number 2 of Article 45, by the
same spouse, who had no knowledge of the other’s Mental Incapacity
insanity; or by any relative or guardian or person having Mental incapacity must be related specifically to the
legal charge of the insane, at any time before the death of contract of marriage, the party at the time of marriage was
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capable of understanding the nature and consequences of Physical incapacity for marriage imports total want of
the marriage, and the insanity must have existed at the power for copulation and only necessary incident thereto
time of the marriage the ability for procreation. Copulate means the act of
gratification of sexual desire by means of the union of two
Sanity is presumed in absence of proof for insanity. The biological organs
burden of proof rests upon the party alleging insanity and
seeks to avoid an act on account of it, and there must be Barrenness or sterility (inability to procreate), impotence
a preponderance of evidence. (physical inability o perform sexual intercourse), sexual
frigidity or weakness, are not grounds for annulment
Fraud
Fraud refers to the non-disclosure of or concealment of Potency is presumed and the burden of proof to prove
some facts deemed material to marital obligation impotence rests upon the party alleging the existence of
such condition
The following constituted fraud (and the grounds for
annulment): The following are the requisites in order that such
- Non-disclosure of previous conviction incapacity be a ground for annulment:
o There must be conviction by final - Incapacity existed at the time of the marriage
judgement celebration
o Crime must involve moral turpitude - Continues up to the time of filing for annulment
(contrary to justice, honesty, modesty and - Appears to be incurable
good morals) - Must be unknown to the other party
- Concealment of pregnancy - Only the injured party may file for annulment
o Concealment of such fact during the time
of the marriage ceremony Sexually-Transmitted Disease
o Bride not aware she was pregnant or The grounds is not the concealment but the existed of the
groom was aware she was pregnant is STD that is serious and incurable, and the other party was
not fraud not aware of the existence of such disease
- Concealment of sexually transmitted diseases
o If it is incurable The requisites for the validity of the grounds for annulment:
o Curable but concealed by the afflicted - STD must have existed at the time of the marriage
party during the time of the marriage celebration
- Concealment of Drug Addiction, Habitual - It is found to be serious
Alcoholism, Homosexuality or Lesbianism - It is appears to be incurable
- It must be unknown to the other party at the time
Condonation of these acts is a defense for legal separation of the marriage

Violence Procedure
There is violence when serious and irresistible force was The procedure governing the declaration of absolute nullity
used in order to obtain consent. There is intimidation when of void marriages or annulment of marriages is now
one of the parties was compelled by reasonable and well governed by A.M 02-11-10-SC and 02-11-12-SC.
grounded fear against his person or property or his
spouse’s, descendants’ and ascendants’ person or Family courts have exclusive Jurisdiction to hear and
property to obtain consent. decide complaints for annulment and declaration of nullity
of marriage
Requisites by which duress (force and intimidation) may - Venue for petition must be the Family Court where
vitiate consent and render the contract voidable: the petitioner or respondent has been residing for
- It must be the determining cause of the contract at least 6 months prior to the date of filing, or
- It must be unjust where he may be found in the Philippines if party
- It must be serious or grave is a foreigner
- It must produced reasonable and well-grounded
fear that the person from whom such fear came Legal Separation
has the necessary means to inflict threatened
injury Legal Separation
This is a legal remedy available to parties in a valid but
Physical Incapacity failed marriage for the purpose of obtaining a decree from
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the court entitling them to certain reliefs such as living (3) Where there is connivance between the parties in the
separately from each other. commission of the offense or act constituting the ground
for legal separation;
Legal Separation does not sever the marriage bond unlike
annulment and divorce, the reasons for separation happen (4) Where both parties have given ground for legal
after the marriage like that of divorce. In annulment, the separation;
reasons exist during the celebration of the marriage
(5) Where there is collusion between the parties to obtain
Art. 55. A petition for legal separation may be filed on any decree of legal separation; or
of the following grounds:
(6) Where the action is barred by prescription. (100a)
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child Art. 57. An action for legal separation shall be filed within
of the petitioner; five years from the time of the occurrence of the cause.
(102)
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation; Art. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing
(3) Attempt of respondent to corrupt or induce the of the petition. (103)
petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption or Art. 59. No legal separation may be decreed unless the
inducement; Court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
(4) Final judgment sentencing the respondent to reconciliation is highly improbable. (n)
imprisonment of more than six years, even if pardoned;
Art. 60. No decree of legal separation shall be based upon
(5) Drug addiction or habitual alcoholism of the a stipulation of facts or a confession of judgment.
respondent;
In any case, the Court shall order the prosecuting attorney
(6) Lesbianism or homosexuality of the respondent; or fiscal assigned to it to take steps to prevent collusion
between the parties and to take care that the evidence is
(7) Contracting by the respondent of a subsequent not fabricated or suppressed. (101a)
bigamous marriage, whether in the Philippines or abroad;
Art. 61. After the filing of the petition for legal separation,
(8) Sexual infidelity or perversion; the spouses shall be entitled to live separately from each
other.
(9) Attempt by the respondent against the life of the
petitioner; or The court, in the absence of a written agreement between
the spouses, shall designate either of them or a third
(10) Abandonment of petitioner by respondent without person to administer the absolute community or conjugal
justifiable cause for more than one year. partnership property. The administrator appointed by the
court shall have the same powers and duties as those of a
For purposes of this Article, the term “child” shall include a guardian under the Rules of Court. (104a)
child by nature or by adoption. (9a)
Sexual Infidelity must be in the form of adultery (wife) or
Art. 56. The petition for legal separation shall be denied on concubinage (husband)
any of the following grounds: - under Civil Code concubinage must either 1) keep
the mistress in the conjugal dwelling, 2) have
(1) Where the aggrieved party has condoned the offense sexual intercourse, under scandalous
or act complained of; circumstances, with a woman who is not his wife,
3) cohabit with her under any place. Adultery in
(2) Where the aggrieved party has consented to the this case only a single act of sexual intercourse by
commission of the offense or act complained of; a wife with another man not her husband.
However Article 55, Sec 8 now allows for legal

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separation solely on a single act of sexual community or the conjugal partnership, which
intercourse by either spouse as sexual infidelity shall be forfeited in accordance with the provisions
of Article 43(2);
Perversion 3. The custody of the minor children shall be
This refers to unusual or abnormal sexual practices which awarded to the innocent spouse, subject to the
may be offensive to the feelings or decency of either provisions of Article 213 of this Code; and
husband or wife. Usage of physical force, harm or 4. The offending spouse shall be disqualified from
intimidation against the wife also falls or constitutes a inheriting from the innocent spouse by intestate
crime under R.A. 9262 succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
Abandonment spouse shall be revoked by operation of law.
Voluntary separating from one another with no intent of (106a)
returning to live together as husband and wife, and must
be 1) under unjustifiable cause, 2) must be for more than 1 It does not affect validity of donations propter nuptias by
year innocent spouse in favor of the offender spouse
- Mutual support between spouses ceases upon
Cooling Period finality of decree for legal separation. The court
This is in order for the court to take steps to have the may however order the guilty spouse to provide
parties reconcile. The court shall remain passive and is support for the innocent spouse.
precluded from hearing the suit - Surname will remain the same

State’s intervention Rights and Obligations Between Husband

This is based on the fact of that the institution of marriage and Wife
is sacred and that marriage is more than a mere contract
between parties
Art. 68. The husband and wife are obliged to live together,
- Confession of judgement takes place when the
observe mutual love, respect and fidelity, and render
defendant appears in court and confesses the
mutual help and support. (109a)
right of the plaintiff to judgement or files a pleading
expressly agreeing to the plaintiff’s demand
Art. 69. The husband and wife shall fix the family domicile.
- When no answer is filed by the respondent in a
In case of disagreement, the court shall decide.
legal separation case, the prosecuting attorney
shall take steps to prevent collusion between
The court may exempt one spouse from living with the
parties, and to see to it that the evidence is not
other if the latter should live abroad or there are other valid
fabricated or suppressed, which must be done
and compelling reasons for the exemption. However, such
within one month following the receipt of such
exemption shall not apply if the same is not compatible
order and shall furnish copies for the parties and
with the solidarity of the family. (110a)
their counsel. The parties shall file their comments
on the finding collusion within 10 days from
Art. 70. The spouses are jointly responsible for the support
receipt of report. The court shall set the report for
of the family. The expenses for such support and other
hearing and shall dismiss the petition if it is found
conjugal obligations shall be paid from the community
that there was collusion. If there is no collusion,
property and, in the absence thereof, from the income or
then the court shall set the case for pre-trial. It
fruits of their separate properties. In case of insufficiency or
shall be the duty of the Public Prosecutor to
absence of said income or fruits, such obligations shall be
appear on behalf of the State on the pre-trial.
satisfied from the separate properties. (111a)
Effects of Legal Separation
Art. 71. The management of the household shall be the
The decree of legal separation shall have the following
right and the duty of both spouses. The expenses for such
effects:
management shall be paid in accordance with the
1. The spouses shall be entitled to live separately
provisions of Article 70. (115a)
from each other, but the marriage bonds shall not
be severed;
Art. 72. When one of the spouses neglects his or her
2. The absolute community or the conjugal
duties to the conjugal union or commits acts which tend to
partnership shall be dissolved and liquidated but
bring danger, dishonor or injury to the other or to the
the offending spouse shall have no right to any
share of the net profits earned by the absolute
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family, the aggrieved party may apply to the court for relief. judicial separation of property or the remaining spouse
(116a) shall be the sole administrator of the conjugal property

Art. 73. Either spouse may exercise any legitimate When spouse commits acts of sexual infidelity
profession, occupation, business or activity without the It may ay be a ground for legal separation, as well as
consent of the other. The latter may object only on valid, grounds for criminal liability of concubinage or adultery.
serious, and moral grounds. The aggrieved spouse may also ask the court for
injunction to stop the other spouse from further disposition
In case of disagreement, the court shall decide whether or of property aside from judicial separation of property or the
not: remaining spouse shall be the sole administrator of the
conjugal property (in cases where a philandering spouse
(1) The objection is proper; and squanders the family property)

(2) Benefit has occurred to the family prior to the objection When spouse sells conjugal or community property
or thereafter. If the benefit accrued prior to the objection, without the other’s consent
the resulting obligation shall be enforced against the The aggrieved spouse may also ask the court for
separate property of the spouse who has not obtained injunction to stop the other spouse from further disposition
consent. of property without the other’s consent aside from
receivership for the judicial separation of property or for the
The foregoing provisions shall not prejudice the rights of remaining spouse to be the sole administrator of the
creditors who acted in good faith. (117a) conjugal property

When spouse commits violation of R.A. 9262

Cohabitation The wife may obtain protection orders from the barangay
Cohabitation or living together as husband and wife is a or the court to prevent further violent acts against her, her
basic ground rule for marriage. It is the public assumption children and to provide other reliefs under Article 8 of RA.
that they live together as husband and wife 9262 or the “Anti-Violence against Women and Their
Children Act of 2004”
It also includes the right to sexual intimacy from the other
spouse, as one of the essential marital obligations is the Property Relations Between Husband and
procreation of children through sexual cooperation. If they Wife
are legally separated, the husband can be sued for rape if
he attempts to make his wife submit to him Art. 74. The property relationship between husband and
wife shall be governed in the following order:
The spouse who refuses to live with the other without just
cause is not entitled to separate maintenance or support (1) By marriage settlements executed before the marriage;

Expenses (2) By the provisions of this Code; and

Expenses of the family are chargeable with the following:
- community property and, in the absence thereof, (3) By the local custom. (118)
- the income or fruits of their separate properties
- the separate properties of the spouses Art. 75. The future spouses may, in the marriage
- Expenses of the family are to be managed by both settlements, agree upon the regime of absolute
husband and wife based on the FC community, conjugal partnership of gains, complete
separation of property, or any other regime. In the absence
When spouse leaves conjugal dwelling: of a marriage settlement, or when the regime agreed upon
Our laws have no provision to compel the wife to live with is void, the system of absolute community of property as
the husband. However the husband may avail of the established in this Code shall govern. (119a)
option under Article 198 FC. As such, the husband can
cut the support of his wife if she refuses to live with him Art. 76. In order that any modification in the marriage
without just cause and without any moral or legal obstacle settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of
If there is no intent to return, then the remaining spouse Articles 66, 67, 128, 135 and 136. (121)
may petition the court for receivership wherein there will be

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Art. 77. The marriage settlements and any modification

thereof shall be in writing, signed by the parties and In the absence of a marriage settlement or when the
executed before the celebration of the marriage. They shall property regime agreed upon by the spouses in their
not prejudice third persons unless they are registered in marriage settlement is void, the provisions in the Family
the local civil registry where the marriage contract is Code shall govern the property relations between the
recorded as well as in the proper registries of properties. spouses.
(122a)
The future spouses may agree upon the regime of
Art. 78. A minor who according to law may contract absolute property, conjugal partnership of gains, complete
marriage may also execute his or her marriage separation of property, or any other regime that is not
settlements, but they shall be valid only if the persons contrary to law, customs, public order and public policy.
designated in Article 14 to give consent to the marriage
are made parties to the agreement, subject to the Prior to the Family code, the system of relative community
provisions of Title IX of this Code. (120a) or conjugal property governs in absence of a marriage
settlement. Now, the system of absolute community or
Art. 79. For the validity of any marriage settlement conjugal property governs in absence of a marriage
executed by a person upon whom a sentence of civil settlement or if the settlement is void.
interdiction has been pronounced or who is subject to any
other disability, it shall be indispensable for the guardian Marriage Settlement
appointed by a competent court to be made a party A marriage settlement or ante nuptial contract is a contract
thereto. (123a) which is entered into before, but in consideration and
contemplation of marriage, where the property relations of
Art. 80. In the absence of a contrary stipulation in a marriage are fixed and determined.
marriage settlement, the property relations of the spouses
shall be governed by Philippine laws, regardless of the The marriage settlement itself or its modifications thereto
place of the celebration of the marriage and their must be made prior to the celebration of marriage. It is
residence. however possible for the parties to modify their agreement
in their settlement by resorting to complete separation of
This rule shall not apply: property pursuant to the provisions of Art. 135 or 136 FC.
Also, if one of the parties to the marriage is suffering from
(1) Where both spouses are aliens; civil interdiction or any incapacity to give consent, it is
indispensable for the guardian appointed by a component
(2) With respect to the extrinsic validity of contracts court to be made a part of party thereto, otherwise the
affecting property not situated in the Philippines and settlement is void
executed in the country where the property is located; and
The law requires that the settlements and any
(3) With respect to the extrinsic validity of contracts modifications to be made be done in writing. Prior to the
entered into in the Philippines but affecting property FC, marriage settlements were governed by Art. 122 NCC.
situated in a foreign country whose laws require different Notwithstanding express provisions in the present article,
formalities for its extrinsic validity. (124a) the marriage settlements and its modifications shall be
governed by Statute of Frauds under Art.1403, par 2
Art. 81. Everything stipulated in the settlements or sub-par C: “Any agreement made in the consideration of
contracts referred to in the preceding articles in the marriage, other than a mutual promise to marry.
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be A contract that infringes the Statute of Frauds is not void
rendered void if the marriage does not take place. but unenforceable, it must be ratified. An oral marriage
However, stipulations that do not depend upon the contract is unenforceable since its existence cannot be
celebration of the marriages shall be valid. (125a) proven without a written agreement.

For a marriage settlement to affect third persons, it is

The law allows the spouses to fix their property relations necessary that it be in writing and registered in the local
during the marriage through a device known as marriage civil registry and proper registries of property.
settlement subject only to the condition that whatever
settlement they may have must be within the limits Article 80 shall not apply in these cases:
provided by this Code.
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- If there is contrary stipulation in the marriage step should be noted in both instruments,
settlement otherwise the donations shall be void
- With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines Note: Donations propter nuptias must be made by either
and executed in the country where the property is or both of the spouses,
located; and - If the donation is to be made by one of the future
- With respect to the extrinsic validity of contracts spouses in favor of the other in a marriage
entered into in the Philippines but affecting settlement, such donation must not exceed one
property situated in a foreign country whose laws fifth of the present property of the donor, if the
require different formalities for its extrinsic validity. property regime agreed upon in the marriage
settlement is other than absolute community. The
The future spouses are free to stipulate in their settlement excess shall be void. If it is absolute community,
what laws shall govern their property relations especially if then there is no limitation. The reason is that in
they are residents in a foreign country. However, that with absolute community, both spouses are co-owners
respect to the mandatory provisions of the FC, that shall of all the property at the time of the marriage or
govern since the freedom of the spouses to stipulate must thereafter, unless otherwise provided in Art. 92 or
be gone within the limits provided by the FC in the marriage settlement.

Philippine laws shall not apply to contracts in relations Limitations

properties not located in the Philippines, Following Art. 16 In the situation where the future spouses agreed upon a
NCC, the issues relating property, whether personal or regime other than absolute community but the donation
real, shall be governed by the law where such property is propter nuptias by one spouse in favor of the other is not
located. contained in the marriage settlement, the one fifth rules
shall apply as long as the regime is not absolute
Donations Propter Nuptias community. The reason based on the policy that no
Donations propter nuptias are those made before the spouse should be allowed to take advantage of the love
celebration of marriage, in consideration of the same and and feelings of the other to acquire property from the latter
in favor of one or both spouses
Donations propter nuptias for future property are not
The following requisites are required before a donation can prohibited, however they will be governed by provisions on
be considered as donation propter nuptias: testamentary succession and formalities of wills which are
- Must be made before the celebration of the effective after the death of the spouse.
marriage
- Must be made in the consideration of the marriage Revocation
- Must be in favor of one or both spouses A donation by reason of marriage may be revoked by the
donor in the following cases:
The marriage is a consideration but not necessary to give (1) If the marriage is not celebrated or judicially
birth to the obligation (Art. 86 par 1 FC). This donation declared void ab initio except donations made in
would remain valid if the proper action were not instituted the marriage settlements, which shall be governed
or not instituted before the lapse of the statutory period for by Article 81;
prescription (2) When the marriage takes place without the
consent of the parents or guardian, as required by
Under the Civil Code, the donations propter nuptias were law;
governed under the Statute of Frauds under Art. 122 NCC. (3) When the marriage is annulled, and the donee
Under the Family Code, the same’s formal requirements acted in bad faith;
must follow Articles 748 and 749 NCC, otherwise such (4) Upon legal separation, the donee being the guilty
donations shall be void. spouse;
- If what is donated is personal property has a value (5) If it is with a resolutory condition and the condition
that exceeds than 5,000 pesos, the law requires is complied with;
that such acceptable also be in writing, otherwise (6) When the donee has committed an act of
the donation is void. If donations are real property, ingratitude as specified by the provisions of the
the law requires that the acceptance must be in a Civil Code on donations in general. (132a)
public instrument and if it is made in a separate
instrument, there is an additional requirement that Absolute Community Property
the donor be notified in an authentic form and this
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The absolute community of property between spouses must be in a public instrument and recorded in the LCR
shall commence at the precise moment that the marriage where the marriage contract is recorded and in the proper
is celebrated. Any stipulation, express or implied, for the registries of property. This is so as to protect the interests
commencement of the community regime at any other of third persons who may be prejudiced by such waiver
time shall be void.
What Constitutes Community Property
In absolute community, the spouses are considered co- Unless otherwise provided in this Chapter or in the
owners of all property brought into and acquired during marriage settlements, the community property shall
the marriage which are not excluded from the community consist of all the property owned by the spouses at the
by either provision of the FC or by the time of the celebration of the marriage or acquired
thereafter.
marriage settlement. This regime governs in the following
circumstances: The spouses may agree to exclude from their community
- If the regime in the settlement is absolute property those properties they have at the time of their
community, then the provisions of the settlement marriage celebration and include only properties they
shall govern the property relations between acquire after the marriage. The fruits and income of these
spouses as long as they do not violate mandatory properties shall be included in the community property if
provisions of the FC and are not contrary to public there is a lack of agreement that is stipulated in their
morals and policy. In all matters outside the FC, marriage settlement.
the provisions under Art. 484 to 501 shall also
apply. Exclusions
- If the regime in the settlement applies to the (1) Property acquired during the marriage by gratuitous
spouses by default and persuant to provisions of title by either spouse, and the fruits as well as the
Art. 75, then the provisions on the FC regarding income thereof, if any, unless it is expressly provided
absolute community shall govern and the by the donor, testator or grantor that they shall form
provisions of the NCC on co- ownership shall part of the community property;
apply in a supplementary manner. (2) Property for personal and exclusive use of either
∙ spouse. However, jewelry shall form part of the
community property;
Abalos vs. Macatangay Jr (3) Property acquired before the marriage by either
The court explained the nature of interest of each spouse spouse who has legitimate descendants by a former
in the conjugal partnership prior to liquidation. marriage, and the fruits as well as the income, if any,
- The interest of each spouse is limited to the net of such property.
remainder or remanente liquid (haber ganancial)
resulting from the liquidation of the affairs of the Presumption
partnership after its dissolution. Thus the right of Presumption in favor of community property should not
the spouse to one-half of the conjugal assets only include the properties acquired during the marriage.
does not vest until the dissolution and liquidation By the nature of this regime, which consists of all
of the conjugal partnership, or after the dissolution properties of the spouses, which acquired before or during
of the marriage, it is finally determined that there the marriage, the presumption in favor of the community
are net assets left (after settlement of conjugal must relate to all properties and not just those acquired
obligations) which can be divided between after the marriage.
spouses or their respective heirs.
Charges and Obligations of the Absolute Community
The same principle may likewise apply in regime of The absolute community of property shall be liable for:
absolute community with respect to the share of each (1) The support of the spouses, their common
spouse in the community prior to dissolution and children, and legitimate children of either spouse;
liquidation. however, the support of illegitimate children shall
be governed by the provisions of this Code on
The right of each spouse to the remaining assets of the Support;
community already ripens to a title after payment of (2) All debts and obligations contracted during the
obligation and thus subject to valid renunciation. Such marriage by the designated administrator-spouse
waiver of interest of share in the AC of property after for the benefit of the community, or by both
dissolution of marriage or its annulment or in the case of spouses, or by one spouse with the consent of
judicial declaration of property, as required by the Code, the other;
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(3) Debts and obligations contracted by either spouse - Losses during the marriage in any game of
without the consent of the other to the extent that chance, betting, sweepstakes, or any kind of
the family may have been benefited; gambling
(4) All taxes, liens, charges and expenses, including
major or minor repairs, upon the community Ownership, Administrative, Enjoyment and Disposition
property; of the Community Property
(5) All taxes and expenses for mere preservation In the following situations, one of the spouses may
made during marriage upon the separate property assume sole powers of administration of the common
of either spouse used by the family; property
(6) Expenses to enable either spouse to commence - One spouse is incapacitated or otherwise
or complete a professional or vocational course, incapable in participating in the administration, the
or other activity for self-improvement; other spouse may assume sole powers without
(7) Ante-nuptial debts of either spouse insofar as they the need for consent or approval.
have redounded to the benefit of the family; - During the pendency of a legal separation case,
(8) The value of what is donated or promised by both the court hearing the case may designate either
spouses in favor of their common legitimate spouse as the sole administrator of the absolute
children for the exclusive purpose of commencing community where said administrator shall have the
or completing a professional or vocational course same powers as those of a guardian under the
or other activity for self-improvement; Rules of Court
(9) Ante-nuptial debts of either spouse other than - If either spouse abandons the other without just
those falling under paragraph (7) of this Article, the cause or fails to comply with his or her obligations
support of illegitimate children of either spouse, to the family, the aggrieved spouse may petition
and liabilities incurred by either spouse by reason the court for authority to be the sole administrator
of a crime or a quasi-delict, in case of absence or of the community
insufficiency of the exclusive property of the
debtor-spouse, the payment of which shall be Alienation
considered as advances to be deducted from the Alienation of community property must have written
share of the debtor-spouse upon liquidation of the consent of the other spouse or the authority of the court,
community; and without which disposition or encumbrance shall be void.
(10) Expenses of litigation between the spouses unless The same rule applies even if disposition is made by
the suit is found to be groundless. administrator spouse because sole power of
administration does not include disposition or
If the community property is insufficient to cover the encumbrance without the authority of court or written
foregoing liabilities, except those falling under paragraph consent of the other spouse.
(9), the spouses shall be solidarily liable for the unpaid
balance with their separate properties. Neither spouse can dispose of their respective interest in
the community property by way of disposition inter vivos.
The following are obligations are chargeable to the The rule under Art. 393 NCC does not find application in
exclusive properties of the debtor-spouse: this case for the interest of either spouse in the community
- Support of illegitimate children assets is inchoate which constitutes neither a legal nor an
- Debts contracted by designator equitable estate, and does not ripen until it appears that
administrator-spouse during the marriage that did there are assets in the community as a result of the
not benefit the community liquidation and settlement
- Ante nuptial debts of either spouse that did not
redound to the benefit of the family Dissolution
- Debts contracted during the marriage by either The absolute community terminates:
spouse without the consent of the other that did 1. Upon the death of either spouse;
not redound to the benefit of the family 2. When there is a decree of legal separation;
- Taxes and expenses incurred for the preservation 3. When the marriage is annulled or declared void; or
of the of a separate property of either spouse 4. In case of judicial separation of property during the
which is not being used by the family marriage under Articles 134 to 138.
- Civil liability of either spouse arising from crime or
quasi-delict Conjugal Partnership of Gains
- Expenses of litigation between spouses, if suit is There is no co-ownership of the properties in the conjugal
found to be groundless partnership of gains.
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contracted or registered in the name of one or both

Such regime shall commence only at the precise moment spouses, is presumed to be conjugal unless the contrary is
the marriage is celebrated. Any agreement between proved. (160a)
spouses that this regime shall commence at any other
time is void. Spouses who are legally separated may not Such presumption applies even if “the acquisition appears
adopt conjugal partnership as their new regime in case of to have been made, contracted or registered in the name
reconciliation, although the same seems to be permitted of one or both spouses”. What is important is that the
under provisions of Sec. 23 (c) and 24 (a) on the Rules of acquisition is made during the marriage.
Legal Separation.
However, when there is no showing as to when the
Exclusive Property of Each Spouse property alleged to be conjugal was acquired, the
The following shall be the exclusive property of each presumption does not operate. Proof of the acquisition is a
spouse: condition sine qua non for the operation of the
1. That which is brought to the marriage as his or her presumption in favor of the conjugal partnership.
own;
2. That which each acquires during the marriage by The following are conjugal partnership properties:
gratuitous title; 1. Those acquired by onerous title during the
3. That which is acquired by right of redemption, by marriage at the expense of the common fund,
barter or by exchange with property belonging to whether the acquisition be for the partnership, or
only one of the spouses; and for only one of the spouses;
4. That which is purchased with exclusive money of 2. Those obtained from the labor, industry, work or
the wife or of the husband. (148a) profession of either or both of the spouses;
3. The fruits, natural, industrial, or civil, due or
In case of transfer of administration, such administration received during the marriage from the common
does not include the power to dispose or encumber property, as well as the net fruits from the
without the consent of the owner-spouse or of the exclusive property of each spouse;
authorization of the court, otherwise, the administration is 4. The share of either spouse in the hidden treasure
terminated and the proceeds of the alienation shall be which the law awards to the finder or owner of the
returned to the owner-spouse. property where the treasure is found;
5. Those acquired through occupation such as
If the property is donated or left by will to the spouses fishing or hunting;
jointly and with designation of determinate shares the 6. Livestock existing upon the dissolution of the
share of each in the said property shall be considered partnership in excess of the number of each kind
brought to the marriage by either spouse; and
If a donation is made jointly to persons who are not 7. Those which are acquired by chance, such as
husband and wife, the rule is there is no accretion, winnings from gambling or betting. However,
accretion taking place only when so expressly provided for losses therefrom shall be borne exclusively by the
the donor. loser-spouse. (153a, 154a, 155, 159).

Onerous Donations Property bought on installments paid partly from exclusive

This refers to those donations where a burden or changes funds of either or both spouses and partly from conjugal
inferior in value compared to the property donated is funds belongs to the buyer or buyers if full ownership was
imposed by the donee vested before the marriage and to the conjugal partnership
∙ if such ownership was vested during the marriage. In either
If a donation is made during the marriage in favor of the case, any amount advanced by the partnership or by
husband but the donor imposes a burden or charges either or both spouses shall be reimbursed by the owner
inferior in value to the property donated, such property or owners upon liquidation of the partnership.
shall remain exclusive of the donee spouse although
conjugal funds were used for the burden or charges, in Art. 120. The ownership of improvements, whether for
such case the conjugal property shall be reimbursed by utility or adornment, made on the separate property of the
the donee spouse for the amount advanced. spouses at the expense of the partnership or through the
acts or efforts of either or both spouses shall pertain to the
Conjugal Partnership Property conjugal partnership, or to the original owner-spouse,
Art. 116. All property acquired during the marriage, subject to the following rules:
whether the acquisition appears to have been made,
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When the cost of the improvement made by the conjugal Charges Upon and Obligations of the Conjugal
partnership and any resulting increase in value are more Partnership
than the value of the property at the time of the Art. 121. The conjugal partnership shall be liable for:
improvement, the entire property of one of the spouses 1. The support of the spouse, their common
shall belong to the conjugal partnership, subject to children, and the legitimate children of either
reimbursement of the value of the property of the owner- spouse; however, the support of illegitimate
spouse at the time of the improvement; otherwise, said children shall be governed by the provisions of this
property shall be retained in ownership by the Code on Support;
owner-spouse, likewise subject to reimbursement of the 2. All debts and obligations contracted during the
cost of the improvement. marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of gains,
In either case, the ownership of the entire property shall be or by both spouses or by one of them with the
vested upon the reimbursement, which shall be made at consent of the other;
the time of the liquidation of the conjugal partnership. 3. Debts and obligations contracted by either spouse
(158a) without the consent of the other to the extent that
the family may have benefited;
This applies to the case where an exclusive property is 4. All taxes, liens, charges, and expenses, including
subject to improvement at the expense of the conjugal major or minor repairs upon the conjugal
partnership or through the acts or efforts of either or both partnership property;
spouses. 5. All taxes and expenses for mere preservation
made during the marriage upon the separate
For Art. 120 to apply, the following requisites must be property of either spouse;
present: 6. Expenses to enable either spouse to commence
- Property is exclusively owned by either spouse or complete a professional, vocational, or other
- Said property has been subject to improvement, activity for self-improvement;
whether utility or adornment 7. Ante-nuptial debts of either spouse insofar as they
- The improvements were made at the expense of have redounded to the benefit of the family;
the conjugal partnership or through the acts or 8. The value of what is donated or promised by both
effects of either or both spouses spouses in favor of their common legitimate
children for the exclusive purpose of commencing
In determining the ownership: or completing a professional or vocational course
- When the cost of the improvement made by the or other activity for self-improvement; and
conjugal partnership and any resulting increase in 9. Expenses of litigation between the spouses unless
value are more than the value of the property at the suit is found to groundless.
the time of the improvement, the entire property of
one of the spouses shall belong to the conjugal If the conjugal partnership is insufficient to cover the
partnership, subject to reimbursement of the value foregoing liabilities, the spouses shall be solidarily liable for
of the property of the owner-spouse at the time of the unpaid balance with their separate properties. (161a)
the improvement Rules under Art. 94 and 95 apply
- When the cost of the improvement made by the
conjugal partnership and any resulting increase in Under Conjugal Partnership, the law established a
value are less than the value of the property at the complete separation of capitals, all of which constitutes an
time of the improvement, the entire property of unsurmountable obstacle to the presumption of solidarity
one of the spouses shall belong to the conjugal between spouses. Conjugal partnership is not liable for the
partnership, said property shall be retained in individual liabilities of debtor-spouse (in Alipio vs. CA the
ownership by the owner-spouse, likewise subject Court ruled that a creditor cannot sue the surviving spouse
to reimbursement of the cost of the improvement of a decedent for the collection of money chargeable
against the conjugal property)
Ownership shall be vested in favor of the conjugal property
upon the reimbursement. Similarly, the conjugal If contracted by both spouses or either spouse with the
partnership is required to make an reimbursement only at consent of the other, such debt is considered to have
the time of the liquidation of the conjugal partnership, there redounded for the benefit of the family, and in such case
is however nothing preventing the partnership from the creditor no longer has the burden to prove the debt
reimbursement prior to liquidation was contracted for the benefit of the partnership or the
family.
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CIVIL LAW | Persons and Family Relations | Atty. Elmer T. Rabuya

community where said administrator shall have the

In case of debt contracted by designated administrator- same powers as those of a guardian under the
spouse without consent of the other spouse or prior to Rules of Court
marriage, the conjugal partnership shall be liable only if it - If either spouse abandons the other without just
can be proven by that the debt redounded to the benefit of cause or fails to comply with his or her obligations
the conjugal partnership or the family. to the family, the aggrieved spouse may petition
the court for authority to be the sole administrator
Burden of Proof of the community
Burden of proof to show that debt was credited for the
benefit of the CPG lies with the creditor-party litigant Sole power of administration does not include disposition
claiming as such (Ei incumbit probation qui dicit, non qui or encumbrance without the authority of court or written
negat- he who asserts, not he who denies, must prove) consent of the other spouse since these two acts are in
nature strict acts of ownership. Alienation means transfer
Administration of the Conjugal Partnership Property of property from one person to another.

Art. 124. The administration and enjoyment of the conjugal In Civil Code, the husband is sole administrator of
partnership shall belong to both spouses jointly. In case of property. But in the FC both spouses are administrators of
disagreement, the husband’s decision shall prevail, subject the conjugal property so in case one spouse is
to recourse to the court by the wife for proper remedy, incapacitated or unable to administer the conjugal
which must be availed of within five years from the date of property, the other spouse may file for sole administration.
the contract implementing such decision.
If either spouse disposes or encumbers a conjugal
In the event that one spouse is incapacitated or otherwise property without the consent of the other spouse or
unable to participate in the administration of the conjugal without court authorization, such transaction as based in
properties, the other spouse may assume sole powers of Homeowners Savings and Loan Bank vs. Dailo shall be
administration. These powers do not include disposition or void such that the contract of partnership shall govern in
encumbrance without authority of the court or the written all that is not in conflict with the FC.
consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall Any disposition of the spouses respective shares or
be void. interest in the conjugal partnership shall be void since such
right to one-half of the conjugal assets does not vest until
However, the transaction shall be construed as a the liquidation of the conjugal partnership. Nemo dat qui
continuing offer on the part of the consenting spouse and habet (No one can give what he has not)
the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by Dissolution of Conjugal Partnership Regime
either or both offerors. (165a) The conjugal partnership terminates:
1. Upon the death of either spouse;
Art. 125. Neither spouse may donate any conjugal 2. When there is a decree of legal separation;
partnership property without the consent of the other. 3. When the marriage is annulled or declared void; or
However, either spouse may, without the consent of the 4. In case of judicial separation of property during the
other, make moderate donations from the conjugal marriage under Articles 134 to 138. (175a)
partnership property for charity or on occasions of family
rejoicing or family distress. (174a) Separation in fact
Separation de facto refers to situation where spouses
In the following situations, one of the spouses may simply separate without the benefit of a decree of legal
assume sole powers of administration of the common separation.
property - They retain their right to consortium because
- One spouse is incapacitated or otherwise under the eyes of the law they are not entitled to
incapable in participating in the administration, the live separately
other spouse may assume sole powers without - It does not affect the regimes of ACP or CPG
the need for consent or approval. - The spouses continue to be the legal heir of each
- During the pendency of a legal separation case, other via intestate succession
the court hearing the case may designate either - There is neither guilty nor innocent spouse
spouse as the sole administrator of the absolute
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Judicial authorization may be obtained in a summary Note: The separation of property shall not prejudice the
proceeding when the consent of one spouse to any rights previously acquired by creditors.
transaction of the other is required by law. ACP or CPG
shall continue to be liable for all obligations mentioned in Effects
Art. 92 and 121, and in absence of sufficient ACP or CPP, The decree of separation of property shall have the
the separate properties of one or both spouses shall be following effects
solidarily liable for the support of the family. - Once the separation of property has been
decreed, the absolute community or the conjugal
Separation of Property of the Spouses and partnership of gains shall be liquidated in
Administration of Common Property by One Spouse conformity with the provisions of Art. 102 and 129
During the Marriage of this Code.
- After dissolution of the absolute community or of
Art. 134. In the absence of an express declaration in the the conjugal partnership, the provisions on
marriage settlements, the separation of property between complete separation of property shall apply.
spouses during the marriage shall not take place except - In order to bind third persons, the petition and
by judicial order. Such judicial separation of property may final judgment for separation of property must be
either be voluntary or for sufficient cause. (190a) recorded in the proper LCR and registries of
property. However, the rights which are previously
Separation of properties between spouses shall take place acquired by creditors prior to the judicial
only in the following circumstances: separation of property shall not be prejudiced by
- When the future spouses have agreed in their the judicial decree of separation of property
marriage settlement that their property relations
during marriage shall be governed by the regime Property Regime of Unions Without Marriage
of separation of property Art. 147. When a man and a woman who are capacitated
- When the surviving spouse to a previous marriage to marry each other, live exclusively with each other as
terminated by death of the other spouse contracts husband and wife without the benefit of marriage or under
a subsequent marriage without compliance to the a void marriage, their wages and salaries shall be owned
requirement of liquidation within one year, the by them in equal shares and the property acquired by both
subsequent marriage shall be governed by CSP of them through their work or industry shall be governed
- Upon finality of a decree for legal separation, the by the rules on co-ownership.
ACP or CPG regime shall be dissolved and
liquidated, and what shall govern is the CSP In the absence of proof to the contrary, properties
- When the court approves the joint petition of the acquired while they lived together shall be presumed to
spouses for the voluntary dissolution of the ACP have been obtained by their joint efforts, work or industry,
or CPG, CSP shall govern and shall be owned by them in equal shares. For purposes
- When the court decrees the separation of the of this Article, a party who did not participate in the
spouses following the petition of the spouses acquisition by the other party of any property shall be
following the petition of one of the spouses for deemed to have contributed jointly in the acquisition
such separation based on the grounds provided thereof if the former’s efforts consisted in the care and
on Art. 135 maintenance of the family and of the household.

The spouses may agree to voluntarily dissolve their ACP or Neither party can encumber or dispose by acts inter vivos
CPG however such agreement will not produce any legal of his or her share in the property acquired during
effect if the same is not approved by the courts. The cohabitation and owned in common, without the consent
courts may not disapprove any petition for separation of of the other, until after the termination of their cohabitation.
property on the grounds that the court is not satisfied with
the reasons of the parties. When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the
All creditors of the absolute community or of the conjugal co-ownership shall be forfeited in favor of their common
partnership of gains, as well as the personal creditors of children. In case of default of or waiver by any or all of the
the spouse, shall be listed in the petition and notified of the common children or their descendants, each vacant share
filing thereof. The court shall take measures to protect the shall belong to the respective surviving descendants. In
creditors and other persons with pecuniary interest. the absence of descendants, such share shall belong to
the innocent party. In all cases, the forfeiture shall take
place upon termination of the cohabitation. (144a)
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CIVIL LAW | Persons and Family Relations | Atty. Elmer T. Rabuya

It shall not only apply in the following conditions:

Art. 148. In cases of cohabitation not falling under the - Minors who lived exclusively as husband and wife
preceding Article, only the properties acquired by both of - Void as first cousins under Art. 38
the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common Article 148
in proportion to their respective contributions. In the It shall apply in the following cases
absence of proof to the contrary, their contributions and - Bigamous marriages
corresponding shares are presumed to be equal. The - Adulterous relationships
same rule and presumption shall apply to joint deposits of - Relationships in state of concubinage
money and evidences of credit. - Relationships where both man and woman are
married to other people
If one of the parties is validly married to another, his or her - Multiple alliances of the same married man
share in the co-ownership shall accrue to the absolute - Common law spouses suffering from legal
community or conjugal partnership existing in such valid impediment to marry each other
marriage. If the party who acted in bad faith is not validly - Does not live exclusively with each other as
married to another, his or her shall be forfeited in the husband and wife
manner provided in the last paragraph of the preceding
Article. Belcodero vs. CA,
The court held that property acquired by a man whole
The foregoing rules on forfeiture shall likewise apply even if living with a common law wife during the subsistence of
both parties are in bad faith. (144a) his marriage is conjugal property, even when property was
titled in the name of the common law wife. In such cases,
Except in marriages declared void ab initio under Art. 40, a constructive trust is deemed to have been created under
the property regime that shall govern in a void marriage Article 1456 NCC over the property which lawfully pertains
shall not be CPG or ACP but the provisions under Art. 147 to the conjugal partnership of the subsisting marriage.
and 148
If the party who has acted in bad faith is not validly
Transfer may be by agreement or by order of the court. married, his or her share in shall be forfeited in the manner
Also, under Art. 110 the transfer is allowed by means of therefore expressed. The foregoing rules of forfeiture shall
public instrument which shall be recorded in the registry of apply even if both parties acted in bad faith.
property where the property is located
Regime of Separation of Property
If transfer is by court order, it may be done based only on Art. 143. Should the future spouses agree in the marriage
the following reasons: settlements that their property relations during marriage
- Owner spouse is under guardianship shall be governed by the regime of separation of property,
- Owner spouse is judicially declared an absentee the provisions of this Chapter shall be suppletory. (212a)
- Owner spouse is sentenced to a penalty which
carries with it civil interdiction Art. 144. Separation of property may refer to present or
- Owner spouse becomes a fugitive from justice or future property or both. It may be total or partial. In the
is in hiding as an accused in a criminal case. latter case, the property not agreed upon as separate shall
- It shall be transferred to the other spouse unless pertain to the absolute community. (213a)
they are not qualified due to incompetence,
conflict of interest or any other just cause. In such Art. 145. Each spouse shall own, dispose of, possess,
case, the court shall appoint a suitable person as administer and enjoy his or her own separate estate,
administrator. without need of the consent of the other. To each spouse
shall belong all earnings from his or her profession,
Article 147 business or industry and all fruits, natural, industrial or civil,
It shall only apply in the following conditions: due or received during the marriage from his or her
- both capacitated (refers to legal capacity to marry) separate property. (214a)
to marry each other
- they live exclusively with each other as husband
and wife
- they are living without the benefit of marriage or
under a void marriage

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