Reviewer in PFL

Chapter 3  Only after complying with the requirements may either of the spouses be
allowed to remarry
VOID AND VOIDABLE MARRIAGES
Q: Void and Voidable Marriages
A: Article 35, FC
ART. 35
BASIS VOID VOIDABLE
 Marriage contracted by any party below 18 years of age As to nature Inexistent from the time of performance Valid until annulled
 Absence of legal capacity
As to prescriptibility Does not prescribe (Art.39) Prescriptive period depends on the
ground/s invoked.
 Solemnized by any person not authorized to perform marriages
 Rule is not absolute As to how marriage may be May be attacked directly or collaterally but a. Cannot be attacked
 Even if solemnizing officer has no legal authority as long as either or both impugned for the purpose of remarriage, there must be collaterally, only directly (i.e.
a judicial declaration of nullity there must be a decree of
contracting parties believed in good faith that he had the legal authority to do annulment)
so, marriage is still valid, not only with respect to the parties to such Direct: Only the spouses
marriage but also with respect to third persons and the State b. Can no longer be impugned after
 If contracting parties will go before a person not specifically mentioned by death of one of the parties
Collateral: Any interested party in any
law as having authority to solemnize marriages, the exception does not apply proceeding where the determination of the
validity of the marriage is necessary to give
 If they go before a person enumerated in Art. 7 but who is not authorized to rise to or negate certain rights
perform marriages for failing to comply with the requirements laid down by
law, marriage will still be valid if either or both parties relied in good faith in Venue for action Family Court of the province or city where the petitioner or the respondent has been
residing for at least 6 months prior to the date of filing (if the respondent is a non-
his apparent authority resident: where he may be found in the Philippines) at the election of the petitioner.
(A.M. No. 02-11-10-SC)
 Lack of marriage license
As to susceptibility to Cannot be ratified Can be ratified either by free
 Marriage license obtained after the celebration of marriage does not cure its ratification cohabitation or
invalidity prescription
As to effect on property No community property, only co-ownership Absolute community exists unless they
 Bigamous and Polygamous Marriages (Art. 147/148) agreed upon another
 A second or subsequent marriage is void ab initio for being bigamous, even system in their marriage
settlement
if the other party had acted in good faith and was not aware of the existence
of the previous marriage at the time of the celebration of the subsequent As to effect on children Children are illegitimate Children are legitimate if conceived
marriage Except those falling under the following: before decree of annulment
 Not absolute because a subsequent bigamous marriage may be considered
valid if all the requisites under Art. 41 are present a. In case of psychological
incapacity
(Art. 36)
 Mistake in Identity b. Children born of subsequent
marriage (Art.53)
 Mistake in identity must be with reference to the actual physical identity of
the other party, not merely a mistake in the name, personal qualifications,
character, social standing, etc. - There is absence of real consent Marriages Void from the Beginning (Void Ab Initio):
 Non-compliance with procedure under Art. 52 A. Void under Article 35:
 Whether or not psychological incapacity exists depends crucially on the facts of the
a) Contracted by any party below 18 years old; case
b) Solemnized by an unauthorized solemnizing officer  Psychological incapacity should refer to no less than mental (not physical) incapacity
Exception: If either or both parties believed in good faith that the officer had authority that causes a party to be truly in-cognitive of the basic marital covenants that
c) Solemnized without a valid marriage license concomitantly must be assumed and discharged by the parties to the marriage which
Exception: When license not required include their mutual obligations to live together, observe love, respect and fidelity
d) Bigamous or polygamous marriages and render help and support
Exception: Art. 41 – Marriage contracted by a person whose spouse has been absent for 4
 Psychologic condition must EXIST at the time the marriage is celebrated
years (ordinary absence) or 2 years (extraordinary absence),
where such person has a well-founded belief that his/her absent spouse is already dead, and
had obtained a declaration of presumptive death, and at the time of marriage ceremony is in
good faith together with the subsequent spouse
e) Those contracted through mistake of one contracting party as to the identity of the
Comparative Analysis of Santos, Molina, and Tan-Andal
other; and
f) Those subsequent marriages that are void under Article 53. SANTOS MOLINA ANDAL TAN
B. Psychological Incapacity (Art. 36) Article 36 of the Family FIRST MOLINA GUIDELINE:

 Modified.
Code cannot be taken and
(1) The burden of proof to show the nullity of
construed independently
the marriage belongs to the plaintiff.  Plaintiff- spouse must prove his or her case
C. Incestuous Marriage (Art. 37) of, but must stand in
with clear and convincing evidence.
conjunction with, existing
precepts in our law on  One who asserts a claim must prove it.
D. By Reason of Public Policy (Art. 38) Specifically, in psychological  Molina, however, is silent on what quantum
marriage. Thus correlated,
incapacity cases, it is the plaintiff- of proof is required in nullity cases
"psychological incapacity"
spouse who proves the existence of
should refer to no less than
Good faith marriage (Art. 35[2]) a mental (not physical) psychological incapacity.  This is a quantum of proof that requires more
incapacity that causes a than preponderant evidence but less than
 There is opinion that a nullity case proof beyond reasonable doubt.
Good faith means an honest and reasonable belief that the marriage was valid at its inception, party to be truly in-

cognitive of the basic under Article 36 is like any civil case
and that no legal impediment exists to impair its validity (52 Am. Jur. 2d 96) marital covenants that that requires preponderance of  The reason is that this jurisdiction follows the
concomitantly must be evidence, presumption of validity of marriages.
Valid Bigamous Marriages assumed and discharged by
the parties to the marriage As with any presumption — such as the presumption
which, as so expressed by of regularity in the issuance of public documents,
General Rule: Marriage contracted by any person during the subsistence of a previous Article 68 of the Family regularity in the performance of duty, of good faith,
Code, include their mutual or of sufficient consideration — it can only be
marriage is void (Art. 35) obligations to live together, rebutted with clear and convincing evidence.
Exception: If subsequent marriage was contracted with a valid declaration of presumptive observe love, respect and
death. fidelity and render help and
support. There is hardly
any doubt that the
ART. 36 intendment of the law has
been to confine the
meaning of "psychological
incapacity" to the most
serious cases of personality
 No precise definition of Psychological Incapacity as to allow some resiliency in its disorders clearly
application demonstrative of an utter
2|Lapaan, Lomas-e, Nardo, Marzo (Persons and Family Law Reviewer)

insensitivity or inability to expert opinion.
give meaning and  There must be proof, however, of:
significance to the 1. the durable or enduring aspects
marriage. This of a person's personality, called
psychological condition "personality structure;
must exist at the time the 2. the personality structure
marriage is celebrated. manifests itself through clear
acts of dysfunctionality that
Definition of Psychological SECOND MOLINA DOCTRINE  By equating psychological incapacity to a undermines the family.
Incapacity: "mental incapacity" and to "personality 3. The spouse's personality
(2) The root cause of the psychological disorders," this Court went against the structure must make it
as a "mental (not physical) incapacity must be (a) medically or intent behind Article 36. impossible for him or her to
incapacity” to comply with clinically identified, (b) alleged in the understand and, more
the essential marital complaint, (c) sufficiently proven by important, to comply with his
obligations. experts and (d) clearly explained in the  The Code Committee was clear that
psychological incapacity is not a mental or her essential marital
decision. Article 36 of the Family Code obligations.
The term was confined to requires that the incapacity must be incapacity.

"the most serious cases of psychological — not physical. although
personality disorders its manifestations and/or symptoms may  Among the earlier wordings of the  Proof of these aspects of personality need
clearly demonstrative of an be physical. provision on psychological incapacity not be given by an expert.
utter insensitivity or included "mentally incapacitated,” and  Ordinary witnesses who have been present
inability to give meaning Although no example of such incapacity "mentally" is obviously absent in the in the life of the spouses before the latter
and significance to the need be given here so as not to limit the present Article 36. contracted marriage may testify on
marriage. application of the provision under the behaviors that they have consistently
principle of ejusdem generis, nevertheless  This means that for the Code Committee, observed from the supposedly
such root cause must be identified as a "mental" is not synonymous with incapacitated spouse.
psychological illness and its "psychological."  From there, the judge will decide if these
incapacitating nature explained. behaviors are indicative of a true and
serious incapacity to assume the essential
Expert evidence may be given qualified  Psychological incapacity is also not a
personality disorder. marital obligations.
psychiatrist and clinical psychologists.
 There will be no need to label a person as
 Psychological incapacity cannot be found having a mental disorder just to obtain a
 In particular, this root cause must be decree of nullity.
medically or clinically identified and in the American Psychiatric Association's
sufficiently proven by experts. Diagnostic and Statistical Manual of  A psychologically incapacitated person
Mental Disorders (DSM-V), the need not be shamed and pathologized
authoritative listing of various mental,  A person's psychological incapacity to
including personality, disorders recognized fulfill his or her marital obligations should
by the scientific community not be at the expense of one's dignity,
because it could very well be that he or she
SECOND MOLINA DOCTRINE:  Reiterated the 2000 ruling in Marcos v. did not know that the incapacity existed in
Marcos, where SC declared that "a medical the first place.
On the necessity of expert witnesses examination of the person concerned need
Psychologists and psychiatrists, when not be resorted to."
serving as expert witnesses, have been THIRD MOLINA DOCTRINE
forced to assign a personality disorder and  Instead, as this Court said, "the totality of  Still a requirement
evidence presented is enough to sustain a Necessity to prove juridical antecedence
pathologize the supposedly  Article 36 is clear that the psychological
psychologically incapacitated spouse. finding of psychological incapacity incapacity must be existing "at the time of
 The SC now categorically abandons the The incapacity must be proven to be the celebration" of the marriage, "even if
second Molina guideline. existing at "the time of the celebration" of such incapacity becomes manifest only
 Psychological incapacity is neither a the marriage. The evidence must show after its solemnization."
mental incapacity nor a personality that the illness was existing when the  This distinguishes psychological
disorder that must be proven through parties exchanged their "I do's." The incapacity from divorce. Divorce severs a

manifestation of the illness need not be marital tie for causes, psychological or the marriage.
perceivable at such time, but the illness otherwise, that may have developed after 3. an undeniable pattern of such persisting
itself must have attached at such moment, the marriage celebration. failure [to be a present, loving, faithful,
or prior thereto.  Proof of juridically antecedent respectful, and supportive spouse] must be
psychological incapacity may consist of established so as to demonstrate that there
testimonies describing the environment is indeed a psychological anomaly or
where the supposedly incapacitated spouse incongruity in the spouse relative to the
lived that may have led to a particular other.
behavior.
FIFTH MOLINA DOCTRINE  The requirement is retained, not in the
Ex: Need to prove gravity sense that the psychological incapacity
must be shown to be a serious or
1. For instance, violence against one's spouse Such illness must be grave enough to dangerous illness.
and children can be a manifestation of bring about the disability of the party to
juridically antecedent psychological assume the essential obligations of
marriage. Thus, "mild characterological  "Mild characterological peculiarities,
incapacity when it is shown that the mood changes, occasional emotional
violent spouse grew up with domestic peculiarities, mood changes, occasional
emotional outbursts" cannot be accepted outbursts" are excluded.
violence or had a history of abusive
romantic relationships before the as root causes. The illness must be shown
marriage. as downright incapacity or inability, nor a  The psychological incapacity cannot be
refusal, neglect or difficulty, much less ill mere "refusal, neglect, or difficulty, much
will. In other words, there is a natal or less ill will."
1. The same can be said for child abuse. supervening disabling factor in the person,
Trauma research shows that our past, if not an adverse integral element in the  In other words, it must be shown that the
properly healed, heavily affects our personality structure that effectively incapacity is caused by a genuinely serious
present. As such, evidence of the incapacitates the person from really psychic cause.
juridically antecedent psychological accepting and thereby complying with the
incapacity may consist of testimony on the obligations essential to marriage.
spouse's past experiences that may have
led him or her to become a child abuser. SIXTH MOLINA DOCTRINE  Retained.
The essential marital obligations must be those  Marriage is a contract primarily between
FOURTH MOLINA DOCTRINE  Not being an illness in a medical sense, the spouses; but its cause remains to be the
Necessity to prove incurability embraced by Articles 68 up to 71 of the Family
psychological incapacity is not something Code as regards the husband and wife as well establishment of not just conjugal but also
to be cured. as Articles 220, 221 and 225 of the same Code family life.
Such incapacity must also be shown to be
medically or clinically permanent or  And even if it were a mental disorder, it in regard to parents and their children. Such  The Constitution treats marriage as the
incurable. Such incurability may be cannot be described in terms of being non-complied marital obligation(s) must also foundation of the family.
absolute or even relative only in regard to curable or incurable. be stated in the petition, proven by evidence  Article 70 of the Family Code provides
the other spouse, not necessarily  we hold that the psychological incapacity and included in the text of the decision. that the spouses are jointly responsible for
absolutely against every one of the same- contemplated in Article 36 of the Family the support of the family. As such, once
sex. Furthermore, such incapacity must be Code is incurable, not in the medical, but the parties decide and do have children,
relevant to the assumption of marriage in the legal sense; hence, the third Molina their obligations to their children become
obligations guideline is amended accordingly. part of their obligations to each other as
spouses.
The incapacity must:  Not all kinds of failure to meet their
obligations to their children will nullify
1. enduring and persistent with respect to a the vinculum between the spouses.
specific partner
2. contemplates a situation where the  it must be clearly shown that it is of such
couple's respective personality structures grievous nature that it reflects on the
are so incompatible and antagonistic that capacity of one of the spouses for
the only result of the union would be the marriage.
inevitable and irreparable breakdown of
Ex: when one of the spouses sexually abuses one

of their children; or, when unknown to the other Republic vs. CA and
Guidelines Tan-Andal vs. Andal
spouse, a child is subjected to domestic violence; Molina
or when due to the spouse's refusal to go through
counseling or rehabilitation, his or her substance Nature of Psychological Mental incapacity or Durable or enduring aspects
abuse puts a child through a situation of neglect or Incapacity Personality disorder of a person's personality,
outright danger. called “personality
SEVENTH MOLINA DOCTRINE structure”
 Retained.
Interpretations given by the National Necessity of an expert Not required; An ordinary
Appellate Matrimonial Tribunal of the  Note, however, a review of the Required
deliberations of the Code Committee, opinion witness may testify
Catholic Church in the Philippines, while
not controlling or decisive, should be however, reveals that lack of due Incurability Incurable in medical sense Incurable in legal sense
given great respect by our courts. It is discretion under the second paragraph of
clear that Article 36 was taken by the Canon 1095 is actually a part of the
Family Code Revision Committee from concept of psychological incapacity as Rule on Declaration of Absolute Nullity of Marriages and
Canon 1095 of the New Code of Canon envisioned by the Joint Committee. (Note Annulment of Voidable Marriages - AM No 02-11-10-SC which took effect on March 15, 2003
Law, which became effective in 1983 and effect on the Malilim vs Jamesolamin
which provides: case)
 While Article 36 of the Family Code is
1) Burden of proof to show the nullity of the marriage belongs to the plaintiff
The following are incapable of contracting similarly worded to the third paragraph of - Any doubt should be resolved in favor of the existence and
marriage: Those who are unable to Canon 1095, canonical decisions based on continuation of the marriage and against its dissolution and nullity
assume the essential obligations of the second paragraph (those who suffer
from a grave defect of discretion of
2) A petition under Art. 36 shall specifically allege the complete facts showing
marriage due to causes of psychological
nature judgment) should likewise have a that either or both parties were PI from complying with the essential marital
persuasive effect in secular decisions on obligations of marriages at the time of the celebration of marriage even if
psychological incapacity, if we are to
avoid anomalous situations where incapacity becomes manifest only after its celebration
canonically void marriages remain valid - Expert opinion need not be alleged
under civil law. 3) Incapacity must be proven to be existing at the time of the marriage
 Canonical decisions are, to reiterate,
4) Incapacity must be shown to be medically or clinically permanent or
merely persuasive and not binding on
secular courts. incurable
- Declaration by a physician or psychologist is not a requirement - If
the totality of the evidence presented is enough to sustain a finding
of psychological incapacity, then actual medical examination of the
Q: Is an expert opinion required in an action for nullity of marriage on the ground of
person concerned need not be resorted to
psychological incapacity under Art. 36 of the Family Code, as amended?
5) Illness must be grave enough to bring about the disability of the party to
A: No. Psychological incapacity is neither a mental incapacity nor a personality disorder that
assume essential obligations of marriage
must be proven through expert opinion. There must be proof, however, of the durable or
6) Essential marital obligations must be those embraced by Arts. 68-71 as
enduring aspects of a person's personality, called "personality structure," which manifests
regards husband and wife as well as Arts. 220, 221 and 225 in regard to
itself through clear acts of dysfunctionality that undermines the family. The spouse's
parents and their children
personality structure must make it impossible for him or her to understand and, more
7) Interpretations given by the National Appellate Matrimonial Tribunal of the
important, to comply with his or her essential marital obligations. (Rosanna L. Tan-Andal v. Mario
Victor M. Andal, G.R. No. 196359, May 11, 2021) Catholic Church in the Ph, while not controlling or decisive, should be given
respect in our courts
Q: What are the changes on the Molina guidelines (Republic vs. CA and Molina, G.R.
No. 108763, February 13, 1997) in the interpretation and application of Art. 36 after the • In proving PI, there is no distinction between an alien spouse and a
ruling in Tan-Andal v. Andal (G.R. No. 196359, May 11, 2021)? Filipino spouse to that of Filipino spouses
A:
 CHI MING TSOI v. CA 1. Adopted child
- Love is useless unless it is shared with another 2. Surviving spouse of the adopted child
 No award of Moral Damages in PI  Intentional Killing of Spouse

- A prior criminal conviction is not necessary to render the marriage
 Legal Separation void
- Marriage is valid and the grounds for LS occur only after the - The killing, whether perpetrated by the spouse or by another person,
celebration of marriage must be animated primarily by the intention or desire to do away
- Marital bond is not broken with the victim, who is an obstacle to a contemplated marriage, for
ART. 37 the purpose of marrying the surviving spouse
- So long as killing is for the purpose of contracting a marriage with
Incestuous Marriages the surviving spouse, the marriage will be void ab initio even if the
surviving spouse was not aware of such plan
 Even if solemnized abroad in accordance with the laws in force in the country where
they are solemnized, and valid there as such, such incestuous marriage is not ART. 39
recognized as valid in the Philippines
 An action or defense based on the absolute nullity of marriage is
Whether the relationship is legitimate or illegitimate: IMPRESCRIPTIBLE
A. Between ascendants and descendants of any degree - Void marriages can be questioned even after death of either party
B. Between brothers and sisters, whether full or half blood
 AM No. 02-11-10-SC
ART. 38 - Provides that a petition for declaration of absolute nullity of a void
marriage may be filed solely by the husband or wife and, if filed, the
Void by reason of Public Policy case shall be closed and terminated upon the death of either party at
any stage of the proceeding prior to entry of judgment, it now
 The intention of the law is to prohibit marriages between persons who were once appears that a direct proceeding for the purpose of obtaining a
related to each other by affinity as parents-in-law and children-in-law, even if judicial declaration of nullity of a void marriage may no longer be
marriage, which serves as the source of relationship of affinity, is already dissolved filed after the death of either party to such void marriage
or terminated by reason of death or final judgment of annulment or of absolute nullity - It may still be subject to a collateral attack
 The adopted child is prohibited from marrying only the “legitimate child” of the
adopting parent ART. 40
- Prohibition does not extend to adopter’s illegitimate child
 An adopted child is prohibited from marrying the following:  Need for judicial declaration of nullity of a void marriage
1. Adopter - The absolute nullity of a previous marriage may be invoked for
2. Surviving spouse of the adopter purposes of remarriage on the basis solely of a final judgment
3. Legitimate children of the adopter declaring such previous marriage void
4. Other adopted children of the same adopter - However, other than for purposes of remarriage, no judicial action is
necessary to declare a marriage an absolute nullity
 The adopter is prohibited form marrying the following:

Example: For purposes of determination of heirship, settlement of estate, etc., the court may purpose is NOT TO REMARRY, other evidence can be presented to prove the
pass upon the validity of the marriage even in a suit not directly instituted to question the nullity of the previous marriage. (Art.40)
same so long as it is essential to the determination of the case Even if a marriage is void, it must be declared void first by final judgment before the
parties to such void marriage can remarry. The parties cannot decide for themselves
 Subsequent marriage without judicial declaration of nullity of previous marriage is the invalidity of their marriage.
Void ab initio
- The intention of the FC is to declare a marriage void ab initio by MERCADO v. TAN
reason of non-compliance with the provisions of Art. 40 - A judicial declaration of nullity of a previous marriage is necessary
- A subsequent marriage entered into in violation of Art. 40 is a void before a subsequent one can be legally contracted
marriage under Art. 35(4) - One who enters into a subsequent marriage without first obtaining
- The applicable property regime is that provided for Art. 148 such judicial declaration is guilty of bigamy
 Void marriages under Art. 40, in relation to Art. 50, 35(4), 35(6), in relation to Arts. - This principle applies even if the earlier union is characterized by
53 and 52 statutes as “void”
 Property Relations  Without a judicial declaration of its nullity, the first marriage is presumed to be
 In a void marriage, regardless of cause thereof, the property relations subsisting
shall be governed by the provisions of Art. 147 or 148, as the case
may be; it is neither ACP or CPG Q: Distinguish bigamous marriage under Article 40 of the Family Code from bigamous
marriage under Article 35 (4) of the Family Code.
 In bigamous marriage which is void under Art. 35(4), the property
regime is governed by Art. 148
 Art. 147 governs the property regime of void marriages under Art. A:
35(6), in relation to Arts. 53 and 52, since it applies to unions of ARTICLE 40 ARTICLE 35 (4)
parties who are legally capacitated and not barred by any Void but a party thereto did not secure a Valid, or at least voidable, and a party
impediments to contract marriage, but whose marriage is nonetheless judicial declaration of nullity of the prior thereto contracts another marriage prior to
void for other reasons marriage before contracting a subsequent its termination
 Par. 2 of Art. 43 is made applicable to void marriages under Art. 40 marriage
 Filiation Property regime following a void marriage Property regime is governed by Art. 148
 Children conceived or born before the judgment of absolute nullity Void for failure to comply with the Void for being bigamous
of marriage under Art. 53 are considered legitimate requisites
 Children born or conceived of void marriages under Arts. 35(4) and
Art. 40, in relation to Art. 50 are illegitimates Q: In June 1985, Jervi married Jennilyn. In September 1988, he also married Julie Ann
 Art. 40 is applicable to remarriages entered into after the effectivity of the FC on with whom he begot two (2) children, Aris and Jai. In July 1989, Jennilyn died. In July
August 3, 1988 regardless of the date of the first marriage 1990, he married Kathrine and abandoned Julie Ann. During their union, Jervi and
Julie Ann acquired a residential lot worth P300,000.00.
Subsequent Marriage Without Judicial Declaration of Nullity of Previous Void
Marriage Julie Ann sues Jervi for bigamy and prays that his marriage with Kathrine be declared
null and void. Jervi, on the other hand, claims that since his marriage to Julie Ann was
 For purposes of remarriage, the only acceptable evidence that the previous marriage contracted during the existence of his marriage with Jennilyn, the former is not binding
has been voided is a final judgment declaring such marriage null and void; if the upon him, the same being void ab initio; he further claims that his marriage to Kathrine

is valid and binding as he was already legally capacitated at the time, he married her. Is 3. If the husband discovers after the marriage that his wife was a prostitute before they
the contention of Jervi, correct? 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
A: No. The contention of James is not correct. annulment of marriage (Art. 46, FC).
4. The wife may file an action for legal separation. The husband’s sexual infidelity is a
Art. 40, Family Code, provides that the “absolute nullity of a previous marriage may be ground for legal separation (Art. 55, FC). She may also file an action for judicial
invoked for purposes of remarriage on the basis solely of a final judgment declaring such separation of property for failure of her husband to comply with his marital duty of
previous marriage void.” It can be said, therefore, that the marriage of Jervi to Kathrine is fidelity (Art. 135 (4), 101, FC).
void since his previous marriage to Julie Ann, although itself void, had not yet been judicially 5. The wife may file an action for legal separation on the ground of repeated physical
declared void. violence on her person (Art. 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
Q: Which of the following remedies, i.e., (a) declaration of nullity of marriage, (b) mutual respect [Art. 135 (4), 101, FC]. She may also file an action for declaration of
annulment of marriage, (c) legal separation, and/or (d) separation of property, can an nullity of the marriage if the husband’s behavior constitutes psychological incapacity
aggrieved spouse avail himself/herself of: existing at the time of the celebration of marriage.
1. If the wife discovers after the marriage that her husband has AIDS.
2. If the wife goes (to) abroad to work as a nurse and refuses to come home after
the expiration of her three-year contract there. ART. 41 - ART. 42
3. If the husband discovers after the marriage that his wife has been a prostitute
before they got married. General Rule: Any marriage contracted by any person during the subsistence
4. If the husband has a serious affair with his secretary and refuses to stop of a previous marriage be null and void and may be found guilty of bigamy
notwithstanding advice from relatives and friends. If the husband beats up his
wife every time, he comes home drunk. Exception: Subsequent bigamous marriage may be exceptionally considered valid if the
following conditions concur:
A: 1. Prior spouse of the contracting party must have been absent for 4 consecutive years,
or 2 years where there is danger of death;
1. Since AIDS is a serious and incurable sexually-transmissible disease, the wife may 2. Spouse present has a well-founded belief that the absent spouse is already dead
file an action for annulment of the marriage on this ground whether such fact was 3. A judicial declaration of presumptive death of the absentee for which purpose the
concealed or not from the wife, provided that the disease was present at the time of spouse present can institute a summary proceeding in court
the marriage. The marriage is voidable even though the husband was not aware that  There must be a judicial declaration of presumptive death; otherwise, the subsequent
he had the disease at the time of marriage. marriage is void ab initio
2. If the wife refuses to come home for three (3) months from the expiration of her  Requisites for Declaration of Presumptive Death
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 RP v. NOLASCO
from the expiration of her contract, the husband may file an action for legal 1. Absent spouse has been missing for 4 consecutive years, or 2 consecutive years if
separation under Article 55(10) of the FC on the ground of abandonment of petitioner disappearance occurred where there is danger of death;
by respondent without justifiable cause for more than one year. The wife is deemed 2. Present spouse wishes to remarry
to have abandoned the husband when she leaves the conjugal dwelling without any 3. Present spouse has a well-founded belief that the absentee spouse is dead
intention of returning (Art. 101, FC). The intention not to return cannot be presumed 4. Present spouse files a summary proceeding for the declaration of presumptive death
during the three-year period of her contract. of absentee

 Effects of judicial declaration of presumptive death  Upon termination of subsequent marriage, the AC or CG shall be dissolved and
- Absentee shall be presumed dead, but only for the purpose of liquidated
allowing the present spouse to contract a subsequent marriage
- Present spouse will then be capacitated to contract a subsequent  Donation Propter Nuptias
marriage - Donations by reason of marriage are those which are made before its
- It is without prejudice to the effect of his reappearance - Once celebration, in consideration of the same, and in favor of one or both
reappearance is established, the presumption of death is rendered of the future spouses
ineffective - As a rule, it shall remain valid
- FC is not clear on the effects of the declaration upon the property - If the donee contracted the marriage in bad faith, such donations are
regime of the previous marriage revoked by operation of law
 Effects of recording of affidavit of reappearance - If both spouses are in bad faith, in which case the subsequent
- The mere reappearance of the absentee spouse DOES NOT terminate marriage is void, all donations by reason of marriage are likewise
the subsequent marriage revoked by operation of law
- It is the RECORDING of the affidavit of reappearance of the  In the subsequent marriage referred to in Art. 41, if one of the spouses acted in bad
absentee spouse which results in the automatic termination of the faith in contracting the marriage and he/she had been designated as the beneficiary in
subsequent marriage any insurance policy of the innocent spouse, the latter has the right to revoke such
- Since the termination of the subsequent marriage is “automatic” and designation even if the designation is irrevocable
without need of judicial intervention, the second spouse, barring the  If the subsequent marriage is contracted in the absence of a judicial declaration of
existence of other impediments, may immediately contract another presumptive death of the absentee spouse, subsequent marriage is void for being a
marriage sine the requirements in Art. 52 do not apply in case of bigamous marriage
extrajudicial termination of the subsequent marriage under Art. 41  The law requires that the good faith should last up to the time of the celebration of
 The affidavit or reappearance may be executed and filed by “any interested person” the subsequent marriage
and not only by the reappearing spouse.  If both parties in subsequent marriage have acted in bad faith, their marriage is
considered bigamous and they shall be liable for the crime of bigamy
Q: Does mere appearance of a partly previously declared presumptively dead automatically notwithstanding the existence of the judicial declaration of presumptive death
terminate subsequent marriage contracted after securing a judicial declaration of presumptive  The existence of such declaration does not immunize the parties from liability for
death of the absent spouse? bigamy
A: NO, mere re-appearance does not terminate the subsequent marriage contracted after EFFECTS OF TERMINATION OF BIGAMOUS MARRIAGE (FC ART 43):
securing a judicial declaration of presumptive death of the absent spouse the subsequent
marriage referred hereto shall be automatically terminated by the recording OF the affidavit 1. Children – considered legitimate
of re-appearance the absent spouse (Article 42, FC) 2. Property Regime – dissolved and liquidated (Party in bad faith shall forfeit his/ her
share in favor of the com m on children or children by a previous marriage, and in
ART. 43 - ART. 44 case there are none, to the innocent spouse)
3. Donation propter nuptias – remains valid, (but if the donee contracted marriage in
The custody and support of the children may be the subject of an agreement between
 bad faith, donations will be revoked)
the spouses to the subsequent marriage 4. Insurance benefits – innocent spouse may revoke designation of guilty party as
- In case of dispute, the matter shall be decided by the court in a beneficiary, even if such designation is irrevocable
proper proceeding
5. Succession Rights – Party in bad faith disqualified to inherit from innocent spouse, - The law authorizes ONLY the INSANE person, after gaining sanity,
whether testate or intestate to ratify the marriage
6. Donations - If both parties of subsequent marriage acted in bad faith, any donations  The sane spouse is not entitled to ratify the marriage even if
and testam entary dispositions made by one party to the other by reason of marriage he/she had no knowledge of the other’s insanity at the time
will be revoked (Art. 44) of the marriage
 The provision authorizing the sane spouse who had no
ART. 45 - ART. 47 knowledge of the other’s insanity at the time of the marriage
to file an action must be interpreted as exercisable only prior
 A marriage that is annulled presupposes that it subsists but later ceases to have legal to the ratification of marriage by the insane spouse after
effects when it is terminated through a court action coming to reason
 Because after ratification, the contract is cleansed of
 Characteristics of Voidable marriage: its defect and the action for annulment is extinguished
 Fraud as a ground for annulment of marriage refers to non-disclosure or concealment
1. Valid until otherwise declared by the court of some facts deemed material to the marital relations
2. Defect must exist at the time of the celebration of marriage - Marriage is subject to ratification by the injured party by
3. Cannot be assailed collaterally except in a direct proceeding freely cohabiting with the guilty spouse as husband and wife after
4. Can be assailed only during the lifetime of the parties and not after death of either gaining full knowledge of the facts constituting fraud
5. Only parties to a voidable marriage can assail it - Pregnancy by another man at the time of marriage is not by itself a
6. Action for annulment is subject to prescription ground for annulment
7. Defect is generally subject to ratification except for grounds mentioned in Art. 45 (5) and  It is the CONCEALMENT of such fact at the time of the
(6) marriage that may constitute a ground
- Affliction with STD, at the time of the marriage, by itself and even
 The law deems to be insufficient the consent given by a party who is at least 18 years without concealment, is a ground for annulment so long as the
old but below 21 disease is serious and appears to be incurable (Art. 45(6))
- Consent is defective  If it is not serious and appears to be curable, it is not
 Ratification cleanses the contract from all its defects from the moment it was a ground for annulment UNLESS the existence of the STD is
constituted CONCEALED by the party afflicted from the other party at
 To successfully invoke the ground of unsound mind to annul a marriage, it is the time of marriage
essential that the mental incapacity of one of the parties must relate specifically to the  If the ground is CONCEALMENT of STD, the law does
contract of marriage NOT distinguish between serious or non-serious and curable
- Test: Whether the party at the time of the marriage was capable of or incurable disease
understanding the nature and consequences of the marriage - Burden  If the party afflicted was not aware of its existence at the
of proof rests upon him who alleges insanity - If the sane spouse had time of the marriage, there is no fraud that will constitute as
knowledge of the other’s insanity at the time of marriage, the action ground for annulment, although it may be a ground if it is
may be filed by: serious and incurable
1. Any relative or guardian or person having legal charge of the - If the fact of addiction, alcoholism, homosexuality or
insane; or lesbianism existing at the time of marriage is not concealed and is
2. The insane spouse during a lucid interval or after regaining known to the other party, it is NOT a ground for annulment
sanity  Impotency caused by a supervening infirmity does not invalidate the marriage
10 | L a p a a n , L o m a s - e , N a r d o , M a r z o ( P e r s o n s a n d F a m i l y L a w R e v i e w e r )
 Physical incapacity for marriage imports a total want of power of copulation, and 3. ACP or CPP is terminated or dissolved and the same shall be
only as necessary incident thereto the inability for procreation; hence, barrenness or liquidated in accordance with Art. 102 and 129, respectively
sterility of itself or mere sexual weakness or frigidity are not grounds for annulment 4. Final judgment must also provide for the custody
- Impotency is the physical ability to have sexual intercourse and support of the common children and the delivery of
- Sterility is the inability to procreate the common children’s presumptive legitimes, unless
- Presumption is in favor of potency adjudicated in the previous judicial proceedings
- DOCTRINE OF TRIENNIAL COHABITATION 5. Donations by reason of marriage shall remain valid except
 If the wife remains a virgin after three years of cohabitation, the husband will be if the donee contracted the marriage in bad faith
presumed impotent, and the burden to overcome such presumption will be 6. Innocent spouse may revoke the designation of the
shifted upon him other spouse who acted in bad faith as beneficiary in any
insurance policy, even if designation is irrevocable
- Requisites: 7. The spouse who contracted marriage in bad faith shall
1. Incapacity must be existing at the time of the celebration of be disqualified to inherit from the innocent spouse by testate
marriage or intestate succession
2. Continues up to the filing of the action for annulment 8. If the wife is the guilty party, she shall resume her
3. Appears to be incurable maiden name and surname; if she is the innocent spouse, she
4. Must be unknown to the other contracting party may resume her maiden name and surname; she may choose
- Action must be filed within 5 days after the celebration of to continue using her former husband’s surname, unless
the marriage and not after discovery of such incapacity the court decides otherwise or she or the former husband
- Not subject to ratification is married again to another person
9. Parties again are free to remarry but they must comply
ARTICLE 45 STD ARTICLE 46 STD with the requirements of Art 52; otherwise, the same shall
Ground for annulment Type of fraud which is a not affect third persons and the subsequent marriage shall
ground for annulment be null and void
Does not have to be concealed Must be concealed
Must be serious and appears to be Need not be serious and
incurable appear to be incurable Q: If the wife remained a virgin after 3 years of marriage, under the law the husband is
STD itself is a ground for It is the concealment which considered?
annulment constitutes the ground for annulment A: Art 45 Par 5 - Impotent (Doctrine of Triennal Cohabitation)
Effects of final judgment of Annulment Q: Dave was forced by Jen B's father to marry her by pointing a shotgun at his face
- Dissolves the special contract of marriage as if it had never because he got her pregnant, is the marriage valid and unvoidable?
been entered into nut the effects of marriage are not totally wiped A: Art 45 Par 4
out
Q: Jervi and his Drunk fiancée got married in Las Vegas, is the marriage valid?
1. Termination of marital bond
A: Art 45 Par 2 Unsoundness of Mind
2. Children conceived or born before the judgment
of annulment are considered legitimate Q: Dave is mentally ill in that he could not stop himself from eating, can his wife attack the
validity of their marriage?
Insanity 1. Sane Any time before the death of Free
spouse with no insane cohabitation
Q: Jervi is physically weak, a little dull in the brain, eccentric in that he is weird and he suffers
knowledge of Party of insane party after
from partial dementia, can his wife attack their marriage for these reasons?
the other’s insanity coming to
2. Legal During lucid interval or after reason
guardian of regaining
Q: Shaira knew that her husband Gester is a drug addict and that he has an STD, yet she insane party sanity, and before death
married him anyway, later on Shaira found newfound love in the arms of Jan Aris, can she
annul her marriage with Gester?
A: Art 46, FC Fraud Injured part y Five years after discovery of Free
(Defrauded party) fraud cohabitation
Q: True or False. The day after John Paul and Jennilyn got married, John Paul told her after having
that he was impotent. Jennilyn continued to live with John Paul for 2 years. Jennilyn is full knowledge of
now estopped from filing an annulment case against John Paul. fraud
A: Jennilyn is not estopped from filing an annulment case against John Paul on the ground of
Force, Injured party Five years after Free
his impotence, because she learned of his impotence after the celebration of the marriage and intimidation, disappearance of force or cohabitation
not before. Physical incapacity to consummate is a valid ground for the annulment of undue influence intimidation after the force has ceased
marriage if such incapacity was existing at the time of the marriage, continues and appears to or
be incurable. The marriage may be annulled on this ground within five years disappeared
from its celebration (Art. 45 [5], Family Code).
Impotence Healthy party Five years after marriage Deemed ratified when
action prescribes
Summary for Voidable Marriages STD Healthy party Five years after marriage Deemed ratified when
action prescribes
Grounds For Who May File? Prescriptive Period, Art. 47 Ratification, Art. 45
Annulment, Art. 47 Q: Dave and Scarlet contracted married in 2004. Prior to their marriage, Scarlet got
Art. 45 pregnant in 2001. Few months into the marriage, Dave found out that he was not the
real father of his supposed three-year-old child. May a petition for annulment be filed
Lack of parental Underage party 5 years after attaining 21. Free on the ground of fraud?
consent cohabitation A: No. In order to annul a marriage on the ground of fraud under Art. 46(2) of the Family
Parent or guardian Before child reaches 21. after attaining age of 21 Code, the following requisites must concur: 1) the wife must have been pregnant by a man
other than her husband at the time of the marriage; and 2) the wife must have fraudulently
concealed the same. Republic vs. Villacorta, G.R. No. 249953, June 23, 2021, J. Caguioa)
((
ART. 48 - ART. 49
 Procedure now governed by AM No. 02-11-10-SC and AM No. 02-11-12-SC
 Family Courts shall have exclusive jurisdiction; petition shall be filed in the Family ART. 52 - ART. 54
Court of the province or city where the petitioner or respondent has been residing for
at least 6 months prior to the date of the filing, or in case of a non-resident, where he
may be found in the Philippines, at the election of the petitioner TITLE II.
 If the court renders a decision granting the petition, it shall declare therein that the LEGAL SEPARATION
decree sha be issued by the court only after compliance with Arts. 50 and 51 ART. 55
 In case a party dies at any stage of the proceedings before the entry of judgment, the
court shall order the case closed and terminated without prejudice to the settlement of Legal separation is a legal remedy available to parties in a VALID BUT FAILED
the estate in proper proceedings in regular courts MARRIAGE for the purpose of obtaining a decree from the court entitling him/her to certain
 Grant of provisional remedies or protection orders: reliefs such as right to live separately (without affecting the marital bonds that exists
between them), dissolution and liquidation of property regime and child custody
1. Spousal support
2. Child support - Legal separation does not dissolve the marriage tie, much
less authorize the parties to remarry
3. Child custody
- Cause giving rise to LS exists only after the celebration of marriage
4. Visitation rights
- Involves nothing more than the bed-and-board separation
5. Hold departure order
- The death of one party to the action of LS causes the death of the
6. Order of protection action itself
7. Administration of common property
Grounds for Legal Separation
DURING PENDENCY OF ACTION:
1. Infliction of Physical Violence
1) The court shall provide for the support of the spouses,
2) The custody of the com m on children, giving paramount consideration to - Repeatedly resorted to by the respondent
their moral and material welfare, their choice of parent with whom they wish - If form of violence is against the life of a partner, the same is a
to remain. ground under par. 9 and it need not be repeated for it to be a ground
3) The court shall also provide for visitation rights of another parent. (Art. 49) -
Psychological and sexual violence and repeated verbal abuse may
qualify as grounds for LS
To prevent collusion between the parties, fabrication or suppression of evidence, the - Grossly abusive conduct
prosecuting attorney or fiscal shall appear on behalf of the State. (Art. 48) 2. Moral Pressure
- If resorted to in order to compel the petitioner to change his/her
ART. 50 - ART. 51 religious or political affiliation
3. Promotion of Prostitution
 Marriage that is void ab initio is considered as having never to have taken place - Under VAWC, it is also punished as a crime if the same is directed
- Judicial declaration of nullity retroacts to the date of the celebration against the wife or a child of the wife
of the marriage insofar as the vinculum between spouses is 4. Final judgment of more than 6 years imprisonment
concerned - Ground for LS even if respondent is pardoned and regardless of the
 All children conceived and born outside a valid marriage are illegitimate, unless the nature of the crime for which the respondent is convicted
law itself gives them legitimate status
- If convicted prior to marriage, it is a ground for annulment if the - Conditional forgiveness or remission, by husband or wife, of
crime involves moral turpitude and it is not disclosed to the other a matrimonial offense which the other had committed
party - It blots out the imputed offense so as to restore the offending party to
- For LS, the conviction occurs only AFTER the celebration of the same position he/she occupied before the offense was committed
marriage - It is presumed that any cohabitation with the guilty party and with
5. Drug addiction, habitual alcoholism knowledge or belief on the part of the injured party of
6. Lesbianism or homosexuality its commission is condonation
- If present at the time of marriage but concealed from the other party, B. Consent
there is fraud which constitutes a ground for annulment - It is given in advance or prior to the commission of the act which
- If there is no concealment and it is known to the other party at the would be a ground for LS, whereas in condonation, the forgiveness
time of marriage, there is no ground to annul the marriage of the matrimonial offense is given after commission
- Must exist only AFTER the celebration of marriage C. Connivance
7. Contracting of subsequent bigamous marriage - Implies an agreement, express or implied, by BOTH spouses, unlike
- Contracting a subsequent bigamous marriage is a ground to declare in consent, it is unilateral
subsequent marriage void but it does not affect the validity of the - It involves criminality on the part of the individual who connives,
prior marriage while condonation may take place without imputing the slightest
- Remedy of the aggrieved party in the prior marriage is LS blame to the party who forgives the injury
8. Sexual Infidelity - It is an act of the mind before the offense has been committed
- It is no longer required that the sexual infidelity be in the form of D. Collusion
adultery or concubinage before it may constitute as ground for LS -
Agreement between husband and wife for one of them to commit, or
- Any sexual act short of the actual sexual intercourse may fall under to appear to commit, or to be represented in court as having
“sexual infidelity” committed, a matrimonial offense, or to suppress evidence of a valid
9. Attempt on the life of the Spouse defense, for the purpose of enabling the other to obtain divorce or LS
- There must be intent to kill - It may not be inferred from the mere fact that the guilty
- If the act of attempting to kill the spouse is wholly justified or party confesses to the offense and thus enables the other party
excused, as in the case of legitimate self-defense, the same is not to procure evidence necessary to prove it
ground for legal justification E. Recrimination (mutual guilt)
- For LS to prosper, it must be claimed only by the innocent spouse
10. Abandonment
- Where both spouses are offenders, LS cannot be claimed by either of
- A spouse is deemed to have abandoned the other when he/she has them
left the conjugal dwelling without intention of returning
F. Prescription
- of action for legal separation
- 5 years from the time of occurrence of the cause
Q: Jennilyn and Dave were married in a Catholic Church of Tarlac, Tarlac on August
ART. 56 - ART. 57
31, 2014. In 2017, Dave went to Saudi Arabia to work. There, after being converted to
Islam, Dave married Jefte. Jennilyn learned of the second marriage of Dave on January
Grounds for Denying Legal Separation:
1, 2018 when Dave returned to the Philippines with Jefte. Jennilyn filed an action for
A. Condonation legal separation on February 5, 2019.
A.) Does Jennilyn have the legal grounds to ask foe legal separation? for Legal Separation and there is a no need for criminal conviction for the
B.) Has the action prescribed? ground to be invoked (Article 55, (9), FC).
B) If I were the lawyer of Elijah, I will interpose the defense that the attempt on
A: his life was without criminal intent but was impelled solely by passion and
A.) Yes, the abandonment of Jennilyn by Dave for more than one (1) year is a ground for obsfuscation. This is why under the Revised Penal Code, even killing him
legal separation (Article 55 (10), FC) unless upon returning to the Philippines, when caught in the act would be justified. To be a ground of legal separation,
Jennilyn agrees to cohabit with Dave which allowed by the Muslim Code. In this the attempt must be intentional and wrongful.
case, there is condonation. Yes. The contracting of a subsequent bigamous marriage C) If I were the judge, I will deny the petition. Petition for legal separation may
whether in the Philippines or abroad is a ground for legal separation (Arcticle 55 (7), be filed by the aggrieved spouse. Since Jervi was unfaithful and was in fact
FC). Whether the second marriage is valid or not, Dave having converted to Islam is caught in in flagrante by his wife, he is not an "aggrieved" spouse entitled to
immaterial. the relief. He who comes to court must come with clean hands. And even
B.) NO. Under Article 57 (1), FC, the aggrieved spouse must file the action within five assuming that the attempt on his life by his wife is a ground for legal
(5) years from the occurrence of the case. The subsequent marriage of Dave could not separation, he is still not entitled to the relief because of his infidelity. The
have occurred earlier than 2017, the time he went to Saudi Arabia. Hence, Jennilyn law does not allow legal separation if both parties have given ground for
has until 2021 to bring the action to under Family Court. legal separation. (Article 56 (4), FC)
Q: After they got married, John Paul discovered that Jennilyn was having an affair Q: Lyka left the conjugal dwelling and filed a petition for legal separation due to
with Dave, his college friend. But John Paul decided to give it a try and lived with her physical violence, threats, intimidation and grossly abusive conduct she had suffered at
for two (2) years. After two (2) years, John Paul filed an action for legal separation on the hands of Dave, her husband. Dave denied such and claimed that it was Lyka who
the ground of Jennilyn's sexual infidelity. Will the action prosper? Explain. had left the conjugal abode, then the decree of legal separation should not be granted,
following Article 56, par. 4 of the FC, which provides that legal separation shall be
A: John Paul's action will not prosper on account at Condonation (Article 56 (1), FC). denied when both parties have given ground for legal separation. Should legal
Although the action for legal separation has not yet prescribed, the prescriptive period being separation be denied on the basis of Dave's claim of mutual guilt?
five years, the decision of John Paul to live with Jennilyn after discovering her affair to Dave
amounts to condonation of such act. However, if such affair is still continuing, John Paul's A: NO. Art. 56, par. 4, FC does not apply since the abandonment that is the ground for legal
action would prosper because the action will surely be within 5 years from the commission of separation is abandonment without justifiable cause for more than one year. In this case, Lyka
the latest act of sexual infidelity. Every sexual liaison is a ground for legal separation. left Dave due to his abusive conduct. Such act does not constitute the abandonment
contemplated in the said provision. Therefore, there is no mutual guilt between them as there
Q: Jervi, a married man, had an adulterous relation with Catherine. In one of the is only one erring spouse (Ong Eng Kiam v CA, GR No. 153206)
trysts, Jervi's wife, Elijah, caught them in flagrante. Armed with gun, Elijah shot Jervi
in a fit of extreme jealousy, nearly killing him. Four (4) years after the incident, Jervi Q: True or False. If John Paul commits several acts of sexual infidelity, particularly in
filed an action for legal separation against Elijah on the ground of that she attempted to 2002, 2003, 2004, 2005, the prescriptive period to file for legal separation runs from
kill him. 2002.
1.) If you were Jervi's counsel, how will you argue his case?
2) If you were the lawyer of Elijah, what will be your defense? A: FALSE. The five-year prescriptive period (Article 57, FC) for filing for legal separation
3) If you were the judge, how will you decide on the case? runs from the occurence of sexual infidelity committed in 2002 runs from 2002, for the
sexual infidelity committed in 2003 runs from 2003 and so on. The action for legal separation
A: for the last act of sexual infidelity in 2005 will prescribe in 2010.
A) As the counsel of Jervi, I will argue that an attempt by his wife against the
life of the husband is one of the grounds of enumerated by the Family Code Q: What are the grounds for Legal Separation?
A: Article 55, FC  Actions cannot be tried unless the court has attempted to reconcile the spouses, and
determined that despite such efforts, reconciliation is highly improbable [Art. 59]
ART. 58 - ART. 59
Q: Irene filed a case of legal separation against her Chester, her husband on the ground
 To provide the parties a “cooling off” period of sexual infidelity without previously exerting earnest efforts to come to a compromise
 The prohibition of hearing during the cooling off period is not an absolute bar to the with him. The judge dismissed the case for having been filed without complying with a
hearing of a motion for preliminary injunction condition precedent. Is the dismissal proper?
- The requirement of 6 month cooling off period shall not apply in A: No, since legal separation like validity of marriage is not subject to compromise
agreement for purposes of filing.
cases of LS where violence is alleged
-
Q: No decree of legal separation can be issued in?
STEPS TOWARDS RECONCILIATION (Article 58, FC):
A: without prior efforts at reconciliation shown to be futile.
A. During the pendency of the case. If the reconciliation occurred while the
proceeding for legal separation is pending, the court shall immediately issue an order ART. 60
terminating the proceeding.
B. After issuance of court decision. If the reconciliation occurred after the rendition of  The prohibition is predicated on the fact that the institutions of marriage and family
the judgment granting the petition for legal separation but before the issuance of the are sacred and therefore are as much the concern of the State as the spouses
Decree, the spouses shall express in their manifestation whether or not they agree to  SAFEGUARDS AGAINST COLLUSION
revive the former regime of their property relations or choose a new regime. The - Art. 60, par. 1, applies only if the judgment was based solely on
court shall immediately issue a Decree of Reconciliation declaring that the legal the confession of judgment. Thus, if other grounds were used,
separation proceeding is set aside and specifying the regime of property relations Art. 60, par. 1 is not applicable.
under which the spouses shall be covered. - The prohibition on confession of judgment will not grant petition
C. After issuance of Decree of Legal Separation. If the spouses reconciled after the if one party admits to being guilty of the charges of adultery. The
issuance of the Decree of Legal Separation, the court, upon proper motion, shall issue point of this provision is that the Court should still admit
a decree of reconciliation declaring therein that the Decree is set aside but the evidence, not decide based on an admission of guilt. Because
separation of property and any forfeiture of the share of the guilty spouse already what is prohibited is handing down a decree of legal separation
effected subsists, unless the spouses have agreed to revive their former regime of based solely on confession of judgment.
property relations or adopt a new regime.
In all these instances, if the reconciled spouses choose to adopt a regime of property ART. 61 - ART. 62
relations different from that which they had prior to the filing of the petition for legal
separation, the spouses shall comply with the procedure for revival or property  During the pendency of the action for LS, the court, motu propio or upon application
regime or adoption of a different property regime. under oath of any of the parties, guardian or designated custodian, may issue
The decree of reconciliation shall be recorded in the Civil Registries where the provisional orders and protection orders with or without hearing
marriage and the Decree had been registered.  CONSEQUENCE OF FILING OF PETITION FOR LEGAL SEPARATION
- Entitlement to live separately.
 An action for legal separation shall in no case be tried before six months shall have - Administration of Absolute Community/Conjugal Partnership
elapsed since the filing of the petition. [Art. 58, FC]. Property
 ARTICLE 62, FC: During the pendency of the action for legal separation, 6) Innocent spouse may also revoke designation of guilty spouse as beneficiary
the provision of Article 49 shall likewise apply to the support of the spouses in an insurance policy, even if such stipulations are irrevocable. [Art. 64. FC;
and the custody and support of the common children. cf. Sec. 11, P.D. 612]
- Custody 7) Obligation for mutual support ceases, but the court may order the guilty
- Support spouse to support the innocent spouse. [Art. 198]
- Appropriate Visitation Rights 8) The wife shall continue to use the surname of the husband even after the
decree for legal separation. [Laperal v. Republic, G.R. No. L-18008(1992)]
Q: In an action for legal separation, is the grant of a preliminary injunction against the
guilty spouse in administering the conjugal properties in violation of the Family Code?
A: No. Article 124 of the Family Code expressly provides the spouses joint administration
over the conjugal properties. However, Article 61 states that after a petition for legal
separation has been filed, the trial court shall, in the absence of a written agreement between
the couple, appoint either one of the spouses or a third person to act as the administrator. ART. 65 - ART. 67
(Sabalones vs. CA, G.R. No. 106169, February 14, 1994)
 If, after the issuance of the decree of LS, the parties simply reconcile and resume
their marital relations previous to the decree but without obtaining a decree of
reconciliation from the same court which issued the decree of LS, their de facto
ART. 63 - ART. 64 reconciliation does not have the effect of setting aside the decree of LS
 The FC speaks only of “revival” of the former property regime of the spouses in case
of reconciliation and not an adoption of an altogether different property regime
 The wife, even after the legal separation has been decreed, shall continue using her
name and surname employed before the legal separation - At any rate, they may not adopt either ACP or CPG as their new
property regime since these property regimes can only commence at
- Her married status is unaffected by the separation, there being no
the precise moment that the marriage is celebrated and any
severance of the vinculum
stipulation, express or implied, for the commencement of these
 Effects of Decree of Legal Separation
regimes at any other time shall be void
1) The spouses can live separately [Art. 63, FC] but the marriage bonds are not
Reconciliation, Article 65
severed.
 Should the spouses reconcile, they should file a corresponding joint manifestation
2) The ACP or CPG shall be dissolved and liquidated, and the share of the
under oath of such reconciliation, duly signed by them and filed with the court in the
guilty spouse shall be forfeited in favor the common children, previous
same proceeding for legal separation
children, or innocent spouse, in that order [Art. 63, FC; cf. Art. 43(2), FC]
 Effects of Reconciliation
3) Custody of the minor children shall be awarded to the innocent spouse [Art.
1) Proceedings for legal separation shall be terminated at whatever stage. [Art.
63, FC; cf. Art 213, FC]
66]
4) Guilty spouse shall be disqualified from inheriting from innocent spouse by
2) If there is a final decree of legal separation, it shall be set aside. [Art. 66]
intestate succession. The provisions in favor of the guilty party in the will of
3) The separation of property and forfeiture of share of guilty spouse shall
the innocent spouse shall also be revoked by operation of law. [Art. 63, FC]
subsist, unless the spouses agree to revive their former property regime or to
5) Donations in favor of the guilty spouse may be revoked [Art. 64, FC] but this
institute another property regime. [Art. 66 cf. Art. 67]
action prescribes after 5 years from the decree of legal separation.
4) Joint custody of children is restored.
5) The right to intestate succession by guilty spouse from innocent spouse is
restored. If the wife abandons the family domicile (vs obligation of cohabitation) with justifiable cause
6) The right to testamentary succession depends on the will of the innocent i.e. being forced to perform lewd sexual acts, the husband’s obligation to support her is not
spouse. terminated. The law will not permit the husband to terminate the obligation to support his
wife by his own wrongful
acts in driving the wife to seek protection in her parents’ home. [Goitia v. Campos Rueda, G.R.
TITLE III No.11263 (1916)]
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
A court cannot compel a married woman to go back to her husband, but the court may decree
ART. 68 that support be terminated. [Arroyo v. Vasquez de Arroyo, G.R. No.L-17014 (1921)]
 Cohabitation is public assumption by a man and a woman of the marital relation, and ART. 69
dwelling together as man and wife, thereby holding themselves out to the public as
such  In the event that one spouse refuses to live with the other in the family dwelling, as
 The courts cannot force one of the spouses to cohabit with the other, the law, fixed either by the spouses or by the court, the court is powerless to enforce the
however, provides for other remedies and sanctions provisions of Art. 69, even if such refusal is not justifiable
 One of the essential marital obligations is to procreate children based on the universal  The spouse who refuses to live with the other without just cause is not entitled to a
principle that procreation of children through sexual cooperation is the basic end of separate maintenance or support
marriage
 Such obligation to support one’s spouse attaches at the inception of the marriage and Q: The husband and wife are obliged to?
ordinarily continues as long as the relationship of husband and wife exists A: Article 69, FC
 Of the mutual obligations between the spouses, it is only the obligation of MUTUAL
SUPPORT between the spouses which can be enforced through legal action Family Domicile
The husband and wife shall fix the family domicile. [Art. 69, FC]
Live Together In case of disagreement, the court shall decide. [Art.69 (1), FC]
The right to live together refers to the right of consortium which is “not susceptible of precise ART. 70 - ART. 71
or complete definition but, broadly speaking, companionship, love, affection, comfort, mutual
services, sexual intercourse—all belonging to the marriage state—taken together make up  For an article to constitute a family expense, it is essential that it be not only
what we refer to as consortium. purchased for, but also that it be used, or kept for use, in or by the family, or be
benefited thereto
General Rule: It is their obligation to cohabit. It is also their obligation to observe mutual
- An expense for the family is one which is incurred for an item
love, respect and fidelity and render mutual help and support. (Art. 68)
Support
Exception: One spouse living abroad or there are valid and compelling reasons [Art. 69 (2),
The spouses are jointly responsible for the support of the family. The expenses for such
FC] – at the discretion of the court.
support and other conjugal properties shall be paid:
a. From the conjugal property;
Exception to the Exception: Incompatibility with the solidarity of the family [Art. 69 (2).
b. If none, income or the fruits of their separate properties;
FC]
c. If none, from their separate properties, wherein they shall be liable in proportion to Use of Surname
their properties [Art. 70, FC]
Although marriage is one of the events required to be recorded in the civil register, a woman
In the case of a separation de facto, if it is proved that the husband and wife were still living does not register her married name. Neither does a married woman file a petition for change
together at the time of his death, it would be safe to presume that she was dependent on the of use her husband’s surname.
husband for support, unless it is shown that she is capable of providing for herself. [SSS v. Aguas,
G.R. No. 165546 (2006)] Q: The husband’s acts of forcibly ejecting his wife without just cause from the conjugal
dwelling and refusing to take her back constitutes:
Management of Family Life A: constructive abandonment
This is the right and duty of both spouses. The expenses for such management shall be paid in
accordance with the provisions of Article 70 [Art. 71, FC]. Title IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
ART. 76 - ART. 79
ART. 74 - ART. 75
Effect of Neglect of Duty
 Law allows spouses to fix their property relations during marriage through a marriage
In case the other spouse neglects his or her duties or commits acts which tend to bring danger, settlement subject only to the condition that whatever settlement they may have must
dishonor or injury to the family, the aggrieved party may apply to the court for relief. [Art. be within the limits provided by FC
72. FC]  For spouses who got married on August 3, 1988 or thereafter without any marriage
settlement: property relations shall be governed by ACP
Note: Injury contemplated is physical, moral, emotional or psychological, not financial.  For spouses who got married without marriage settlement prior to August 3, 1988 but
after August 30, 1950: property relations shall be governed by CPG
Exercise of Profession
 The possibility that local customs will govern the property relations of spouses
Either spouse may exercise any legitimate profession, without need for consent of the other. during marriage will only arise if the future spouses execute a marriage settlement
[Art. 73, FC] and stipulate therein that AC shall not exist between them but without providing for
rules or regime that will
The other spouse may only object on valid, serious, and moral grounds. govern their property relations
In case of disagreement, the Court shall decide whether: Marriage Settlements

a) The objection is proper, and
b) Benefit has accrued to the family According to Art. 74, FC, property relations between husband and wife are governed:
a) By marriage settlements executed before the marriage;
 if accrued before the objection: enforce against b) By the provisions of this Code;
community property
c) By the local custom.
 if accrued after the objection: enforce against
separate property of spouse who has not obtained ART. 76 - ART. 79
consent. [Art. 73, FC]
MARRIAGE SETTLEMENT or ante nuptial contract is a contract which is entered into - However, with respect to mandatory provisions of FC, the latter shall
before, but in contemplation and in consideration of marriage, whereby the property relations still govern since the freedom of the parties to stipulate in their MS
of the spouses during marriage are fixed and determined must be done within the limits provided for the under the Code
 It is not possible for the parties to execute a marriage settlement during the marriage  Issues relating to property, whether real or personal, are to be governed by the law of
if there is not at the start at the start of the marriage the country where the property is situated
 Marriage settlement is an agreement made in consideration of marriage; hence, it is  While the present article seems to limit the inapplicability of Ph laws only to
governed by the Statute of Frauds extrinsic validity of contracts affecting property not situated in the Ph, the rule must
- A contract which infringes the SF is not a void contract but cannot be likewise be extended to any issues relating to such properties, including the intrinsic
enforced unless ratified validity of contracts affecting the same
- An oral MS is merely unenforceable under SF Q: What is the law governing property relations of Filipino spouses?
Marriage Settlement Rules A: General Rule: Philippine laws shall govern their property relations, regardless of place of
celebration of marriage and their residence. (Art. 80, Family Code)
Exception: For properties located outside of the Philippines, what shall govern is the law of
When modifications can be made
the country where the property is situated, whether the issue is the extrinsic or intrinsic
General rule: Determined before the celebration of marriage [Art. 76, FC}
validity of contracts affecting said property. (Art. 80[2], Family Code in relation to Art. 16,
Property regime is dissolved and liquidated upon finality of legal separation, subject to
New Civil Code)
forfeiture for the guilty spouse [Art. 63 (2). FC]
In case of reconciliation, the separation of property subsists unless the parties agree to
revive their former property regime [Arts. 66 and 67, FC] ART. 81
Abandoned spouse may petition the court for judicial separation of property [Art. 128, FC]
 If marriage does not take place, everything stipulated in the Marriage
Sufficient cause for judicial separation of property [Art. 135, FC]
Settlement, including donations between prospective spouses made therein, shall be
Voluntary dissolution of ACP or CPG by the spouses [Art. 136, FC]
rendered void
- Celebration of marriage is a condition sine qua non for the validity of
ART. 77
MS
 The rule that the non-happening of marriage shall render any stipulation in the MS
Requirements of marriage settlements and any modification thereof
void does not apply to any provision therein that does not depend upon the
Made in writing
celebration of marriage for its validity
Signed by the parties
Executed before the marriage celebration ART. 82
Not to prejudice third persons unless registered in the local civil registry where the
marriage is recorded and in registries of property Donations by Reason of Marriage (Donations Propter Nuptias)
If executed by a person below 21 years, valid only when persons required to give consent
to the marriage (father, mother, or guardian, respectively)  It is essential that donee/s be either of the future spouses or both of them, although
are made parties to the agreement [Art. 78, FC] the donor may either be one of the future spouses or a third person
 Donations propter nuptias are made in consideration of marriage. There can be a
ART. 80 valid donation even if the marriage never took place, but the absence of marriage is a
 Future spouses are free to stipulate in their MS what laws shall govern their property ground for the revocation of the donation. [Solis v. Barroso , G.R. No. 27939
relations, especially, if they are residents in a foreign country (1928)]
 The donation must be in a public document and not merely privately stipulated.  If regime agreed upon in MS is ACP — law does not impose any limitations as to the
[Solis v. Barroso, G.R. No. 27939 (1928)] extent of what may be donated by one of the future spouses in favor of the other
 Donations propter nuptias are without onerous consideration, marriage being merely - Because in ACP, spouses are considered co-owners of all the
the occasion ormotive for the donation, not its cause. Being liberalities, they remain property owned by them at the time of the celebration of marriage or
subject to reduction for inofficiousness upon the donor’s death, if they should acquired thereafter, unless otherwise provided in FC or in MS
infringe the legitime of a forced heir. [Mateo v. Lagua,G.R. No. L-26270 (1969)]  Rule is based on policy that no spouse should be allowed to take advantage of the
love or tender feelings of the other to acquire property from the latter
Requisites of donations propter nuptias  The rule is also to apply to donations between spouses even outside of the MS, so
a. Made before the celebration of marriage long as the property regime agreed upon is other than AC
b. Made in consideration of marriage  If future spouses did not execute MS, any DPN between them is not subject to 1/5
c. In favor of one or both of the future spouses limitation since they will be governed by a regime of AC by default
Donations excluded  DPN of future property between future spouses are not prohibited and shall be
a. Ordinary wedding gifts given after the celebration of the marriage governed by provisions on testamentary succession and the formalities of wills
b. Donations in favor of future spouses made before marriage but not in consideration - In the nature of donations mortis causa
thereof or revoked, and is not a condition necessary for the birth of the obligation - Arts. 804 to 819 NCC applies
c. Donations made in favor of persons other than the spouses even if founded on the  If donation of future property is to be made by third person, Art. 751 NCC applies
intended marriage and such donation is prohibited
Who may donate
a. Spouses to each other ART. 85
b. Parents of one or both spouses
c. Third persons to either or both spouses
 Mere encumbrance does not divest the donor of ownership of property donated
 If donee has constructive notice of encumbrance, such is binding upon the donee and
Q: What are the requisites of Donations Propter Nuptias?
attaches to the property donated
A: The following are the requisites of donations propter nuptias:
(a) Must be made before the celebration of the marriage;
Donations of property subject to encumbrances
(b) Must be made in consideration of the marriage;
a. Are considered valid.
(c) Must be in favor of one of both of the future spouses. (Art. 82, Family Code)
b. In case of foreclosure:
 if property value < obligation, donee shall not be liable for the deficiency
ART. 83
 if property value > obligation, donee shall be entitled to the excess
[Art. 85, FC]
 DPN must follow the formal requirements of Arts. 748 and 749 NCC
 Implied acceptance is sufficient for validity of DPN ART. 86
ART. 84  If marriage is not celebrated, the DPN is not rendered ineffective or void, except a
donation made in the MS itself
 If property regime agreed upon in MS is other than ACP - donation must not exceed  DPNs in MS are void if marriage does not take place
1/5 of the present property of the donor  If marriage is judicially declared void ab initio — DPN remains valid but such fact
- If donation exceeds limitations, only the excess is considered void but remainder gives rise to a ground for the revocation of said donation
thereof remains valid
 If marriage is judicially declared void ab initio under Art. 40 — DPN is REVOKED favor of the subsequent
BY OPERATION OF LAW “if the done contracted the marriage in bad faith” or “if marriage
both spouses of the subsequent marriage contracted the marriage in bad faith” revoked by operation of law.
- Art. 50 makes applicable Art. 43(3) and 44 to marriages which are 3. All other void marriages Donor’s choice,
declared void ab initio under Art. 40
regardless of good/bad faith
 Art. 86 is incompatible and inconsistent with Art. 50, in relation to Art. 43(3) and 44
of the donee.
 To give rise to a ground for revocation, the rule is that a voidable marriage must first
be annulled
- EXEPTION: If marriage is voidable by reason of absence of parental c. No consent of parents or guardian GR: does not require final decree of
consent, there is no more need for a judgment annulling the marriage annulment
for the donation to be revocable because such fact already gives rise Donor’s choice- within 5 years from
to a cause for revocation of donation discovery that consent was not obtained
 Since FC does not expressly provide for prescriptive period of actions to revoke
DPN, rules on ordinary donations shall apply. d. Other causes of annulment Revoked by operation of law if donee is
the guilty spouse who acted in bad faith
Grounds for Revocation of Donation Propter Nuptias [Art. 86, FC]
Donor’s choice- within 5 years from finality of
Donation contained in Revoked by operation of law- does decree of legal separation
a. Marriage e. Legal Separation
Marriage settlement not prescribe Exception: if cause is adultery or concubinage,
not
Donation contained in a Donor’s choice- within 5 years from revoked by operation of law
celebrated
Separate instrument supposed date of marriage Donor’s choice- within 5 years from happening
b. Void marriage GR: there must be a judicial declaration of nullity f. Resolutory condition of resolutory condition
for the void marriage complied with Exception: if the other spouse is the donor, action
does not prescribe
1. Art 40, in rel. to Art 52 If donee- Spouse contracted If both parties acted Donor’s choice- within 1 year from knowledge of
and 53(Subsequent marriage the second in good faith- g. Acts of ingratitude
fact of ingratitude with donor being capable of
before securing judicial marriage in bad faith donor’s choice; (Art 765, CC)
bringing suit
Declaration of nullity) (Knowing that it was void)- within 5 years from
donations in date of finality ART. 87
favor of the second of the judicial
marriage revoked by declaration of  Any donation between the spouses DURING marriage, direct or indirect, is
operation of law. nullity. considered VOID
o Art 44 (bad faith in If either or both spouses in the - But the article recognizes the validity of moderate gifts which the
Securing declaration of Subsequent marriage acted in spouses may give each other on the occasion of any family rejoicing
presumptive death) bad faith
(knowing that the person was  H and W are prohibited from selling property to each other and any such sale is void
still alive)- donations in ab initio
- EXCEPTION: If present property is donated and property No limit to donation of present property
1) When separation of property was agreed upon in MS; or regime is not absolute provided legitimes are
2) When there has been a judicial separation of property - community, limited to 1/5 [Art. 84, FC] not impaired
Exceptions do not apply in prohibition between spouses Grounds for revocation found in Art. 86, FC Grounds for revocation found in donation
from donating to each other laws CC provisions
 Spouses are prohibited from donating to each other during marriage whether their
property regime is complete separation of property or otherwise Chapter 3
System of Absolute Community
Rules for Donations DURING Marriage
ART. 88 - ART. 90
General Rule: Spouses cannot donate to each other, directly or indirectly; donations made by
spouses to each other during the marriage are void. [Art. 87, FC] These donations refer to  In ACP, spouses are considered co-owners of all property brought into and acquired
donations inter vivos. [Tolentino] during marriage which are not excluded from the community
Exception: Moderate gifts on the occasion of any family rejoicing.  There is only one instance when waiver during the marriage may be considered valid,
and that is, it the waiver is made in case of judicial separation of property
The prohibition on donations can only be assailed by persons who bear such relation to the  Valid waiver may take place after the marriage has been dissolved or annulled
parties or the property itself, that their rights are being interfered with. Here, the insurance
company of the donated car cannot assail the validity of the donation. In addition, the codal Absolute Community of Property
exception of “moderate gifts “depends on the income class of the spouses and a car The community property consists of all the property owned by the spouses at the time of the
could be considered a “moderate gift” that does not infringe the prohibition of donation celebration of the marriage and those either one or both of them acquired during the marriage.
between spouses. [Harding v. Commercial Union, G.R. No. L-12707 (1918)] There is a presumption in law that properties acquired during the marriage belong to the
community, unless it is proved that it is one of those excluded therefrom.
A spouse cannot donate to persons which the other spouse may inherit from as it constitutes
an indirect donation. [Nazareno v. Birog, 45 O.G. No. 5 (1947)] Conjugal Partnership of Gains
This property regime was formerly the default regime under the CC. In this regime, the
Rules for Donations Between Common-Law Spouses spouses retain ownership of their separate property. However, the spouses also place in a
common fund the proceeds, products, fruits and income of their separate property and those
The donation between common-law spouses falls within the provision prohibiting donations acquired by either or both spouses through their efforts or by chance.
between spouses during marriage.
[Matabuena v. Cervantes, G.R. No. L-2877 (1971)]
The presumption applies that all properties acquired during the marriage belong to the CPG.
In order to fall under the prohibition, it must be proved that they were living in a common-
There are 3 distinct patrimonies in this system, the husband’s capital property, the wife’s
law relationship at the time of the donation. [Sumbad v. CA, G.R.
No. 106060 (1999)]
paraphernal property and the conjugal property.
Distinguished from Ordinary Donations Separation of Property

Each spouse has complete control and ownership of his or her own properties which will
Donations propter nuptias Ordinary Donations
include “all earnings from his or her profession, business or industry and all fruits, natural,
Does not require express acceptance Express acceptance required
industrial or civil, due or received during the marriage form his or her separate property.”
May include future property (subject to Cannot include future property
Expenses of the family shall be
formalities of wills)
shouldered by the spouses in proportion to their income, or, in case of insufficiency or default Property purchased by installment, paid
thereof, to the current market value of their separate partly with conjugal funds and partly with
exclusive funds, if full ownership was
properties. vested during the
Comparison of ACP and CPG marriage; the CPG shall reimburse the
owner-spouse [Art. 118, FC]
Absolute Community of Property Conjugal Partnership of Gains If a winning ticket is bought by conjugal
Default property regime for marriages funds, the prize is conjugal (otherwise,
celebrated before the Family Code took the prize is
effect exclusive property of the spouse who
When it At the precise moment of the celebration of owns the ticket)
commences the marriage [Art. 88, FC] Improvement on exclusive property: if
For marriages after the Family Code, if
original value < new value (where new
agreed to by the parties through a
value = value of
marriage settlement.
land + value of improvements + net
What it Proceeds, products, fruits, and income of
All the property owned by the spouses at change in value), then land becomes
consists of their separate properties
the time of the celebration of the marriage conjugal property, subject to the
Everything acquired by them during reimbursement of the value of the
or acquired thereafter [Art. 91, FC]
marriage through their own efforts property of the owner spouse at the
Under the ACP, spouses cannot exclude dissolution of the CPG
Everything acquired through their efforts
specific properties from the regime unless Property belonging to one spouse
or by chance.
done in settlement. converted into another kind totally
Winnings from gambling shall accrue to Specific properties (Art. 117, FC) different in nature from its original form
the community property but obligations 1. Acquired by onerous title during the during marriage becomes
from gambling shall not. [Art. 95, FC] marriage at the expense of the common conjugal in the absence of proof that the
fund; expenses of the conversion were
Property acquired during is presumed to 2. Acquired through the labor, industry, exclusively for the account of the original
have been obtained through joint efforts of work, or profession of either or both owner-spouse, subject to reimbursement
parties, even though one did not actually spouses of the value of the original property from
participate in the acquisition. This is true 3. Fruits from common property and net the conjugal partnership
for a party whose efforts consisted in the fruits of the exclusive property of each Properties acquired before the marriage,
care and maintenance of the family spouse for those with legitimate descendants by a Property brought into the marriage by
4. Share of either spouse in hidden What remains
household. Such is regarded as exclusive former marriage (to protect rights of each spouse as his/her own
contributions to the acquisition of common treasure, whether as finder or owner of children by a former marriage)
property where treasure was found property
property by one who has no salary, Properties acquired during the marriage
income, work or industry. [Ocampo v. 5. Acquired through occupation such as
Properties acquired during the marriage by by a
Ocampo, G.R. No. 198908 fishing or hunting
a gratuitous title, i.e. donation, inheritance gratuitous title, i.e. donation, inheritance
(2015)] 6. Livestock existing at dissolution of
by testate and intestate succession, by
partnership in excess of what is brought
including the testate and intestate succession (but the
by either spouse to the marriage
fruits of such properties fruits of
7. Acquired by chance, such as winnings
such properties form part of the CPG)
from gambling or betting
Except: When expressly provided by the
Moral damages arising from a contract Except: When expressly provided by the donor
paid fromthe CPG [Zulueta v. Pan American World donor or testator that the property shall or testator that the property shall form
Airways, G.R. No. L-28589 (1973)] form part of the ACP
Loans contracted during the marriage are part of
conjugal, and so is any property acquired the CPG
therefrom [Mendoza v. Reyes, G.R. No. L 31625 Properties for personal use Property acquired by right of redemption,
(1983)] by barter, or by exchange with property
belonging o Value donated or promised by both spouses in favor of common legitimate children
to either spouse Plata v. Yatco, G.R. No. for the exclusive purpose of commencing/ completing a professional/ vocational
L-20825 (1964): Plata purchased property course or activity for self-improvement
when she was single. When married, she
and her husband Bergosa co-signed a 4. Generally: all expenses incurred with the consent of the spouses or for the benefit of
mortgage on the property. Upon the family.
foreclosure, Bergosa was sued for illegal If conjugal partnership property is
Except: Jewelry (partakes of the nature of
detainer. A writ of execution on the insufficient, the spouses are solidarily
an
property was carried out but liable for the unpaid
investment)
Plata refused to leave the premises. SC balance from their separate properties.
ruled that Plata cannot be held in
contempt. Property is not conjugal. Her
husband signing as co- mortgagor does
not convert it to CPG. She could ignore Gambling losses of any kind (i.e. legal or
execution because the decision was for illegal) shall be borne by the losing
her husband alone. spouse’s separate
Property purchased with exclusive money If community property is insufficient, the property (Art. 123, FC)
of either spouse spouses are solidarily liable for the unpaid
balance from their separate properties
Property purchased by installment, paid
except for: DBP v. Adil, G.R. No. L-4085 (1988):
partly with conjugal funds and partly with
exclusive funds, if full ownership was Loan contracts signed by both spouses are
vested before the conjugal, and they are jointly liable for
marriage (Art. 118, FC)Even if the 1. Debts contracted by either spouse before payment, even if
installment is completed after the marriage which have not redounded to only one spouse signs a subsequent
marriage, the property is exclusive if the benefit of the family; promissory note.
ownership was vested in one spouse 2. Support of illegitimate children; and
before the marriage [Lorenzo v. Nicolas, 3. Liabilities incurred by either spouse
G.R. No. L-4085 (1952)] arising from crime or quasi-delict. Ayala Investment v. Ching, G.R. No.
All property acquired during the
118305 (1998): The Supreme Court ruled
All properties acquired during the marriage marriage, whether made, contracted, or
that the indirect benefits that might accrue
form part of the ACP, unless it be proven registered in the
Presumption to a husband
that they are name of one spouse, are presumed
in signing as a surety or guarantee in an
excluded. (Art. 93, FC) conjugal unless the contrary is proven.
agreement not in favor of the family but in
(Art. 116, FC) Gambling losses of any kind (i.e. legal or
favor of his employer corporation are not
Charges and Art. 94, 121-123 FC illegal) shall be borne by the losing
benefits that
Obligations spouse’s separate
can be considered as giving a direct
1. Support of the following: property (Art. 95, FC)
advantage accruing to the family. Hence,
a. Spouses; the creditors cannot go against the
b. Common children; conjugal partnership
c. Legitimate children of previous marriage; property in satisfying the obligation
d. Illegitimate children – follow the provisions on Support; common property liable in subject of the surety agreement. A
case of absence or insufficiency of the exclusive property of the debtor-spouse, but the contrary view would put in peril the
payment shall be considered as an advance to the share of the debtor-spouse. conjugal partnership by allowing it to
be given gratuitously as in cases of
2. Expenses to enable either spouse to commence/complete a professional/vocational donation of conjugal partnership property,
course or activity for self-improvement; which is prohibited.
The administration and enjoyment of the community/conjugal property shall belong to
both
spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to 3. Support for family will be taken from the ACP/CPG
recourse to the court by the wife for a proper remedy, within 5 years from the date of 4. If ACP/CPG is insufficient, spouses shall be solidarily liable
contract (Art. 96, 124 FC) If it is necessary to administer or encumber separate property of spouse who left, spouse
De Ansaldo v. Sheriff of Manila, G.R. No. Effect of de present may ask for judicial authority to do this.
L-43257 facto
(1937): Spouses are not co-owners of CPG separation If ACP/CPG is not enough and one spouse has no separate property, spouse who has
during the marriage and cannot alienate property is liable for support, according to provisions on support.
the supposed 1⁄2 interest of each in the Abandonment [Art. 101, 128 FC]
said Present/aggrieved spouse may petition the court for:
properties. The interest of the spouses in 1. Receivership
the CPG is only inchoate or a mere 2. Judicial separation of property
expectancy and 3. Authority to be the sole administrator of the absolute community, subject to
does not ripen into title until it appears precautionary
after the dissolution and liquidation of the conditions that the court may impose
partnership
that there are net assets.
A spouse is deemed to have abandoned the other when he or she has left the conjugal
Ownership, Disposition or encumbrance of conjugal
Either spouse may, through a will, dispose property requires the following: Authority dwelling without any intention of returning.
administration, of his or her interest in the community of the court or written consent of the other
enjoyment, property. (Art. Spouse is prima facie considered to have abandoned the other spouse and the family if
spouse.
and 97, FC) However, the will should refer he or she has:
disposition only to his or her share in the community 1. Left for a period of 3 months
property. The absence of such will render such
2. Failed to inform the other spouse of his or her whereabouts for a period of 3 months
encumbrance void. (Art. 124, par. 2, FC)
Partosa-Jo v. CA, G.R. No. 82606 (1992):
Donation of one spouse without the consent of the other is not allowed. (Art. 98, 125
Physical separation of the spouses,
FC)
coupled with the husband’s refusal to give
support to the wife, sufficed to constitute
Exceptions: Moderate donations to charity or on occasion of family rejoicing or distress abandonment as a ground for an action for
Jader-Manalo v. Camaisa, G.R. No. 147978 (2002): Mere awareness of a transaction is the judicial separation of their conjugal
NOT consent. property.
Procedure [Art. 102, FC] Procedure [Art. 129, FC]
Homeowner’s Savings & Loan Bank v. Dailo, G.R. No. 153802 (2005): In the absence 1. Prepare an inventory of assets of ACP 1 Prepare an inventory of all properties
of (court) authority or written consent of the other spouse, any disposition or and of spouses with market values 2 Amounts advanced by CPG in payment
encumbrance of the conjugal property shall be void.
of personal debts and obligations shall
2. Obligations are paid with community be credited to the CPG
Cheeseman v. IAC, G.R. No. 7483 (1991): If however, one of the spouses is an alien, Liquidation property, and separate obligations not
of assets and 3 Reimburse each spouse for the use of
the Filipino spouse may encumber or dispose of the property w/o the consent of the charged to ACP paid by respective assets
liabilities his/her exclusive funds in the
former. The property is presumed to be owned exclusively by the Filipino spouse. of
acquisition of property or for the value
Terminates upon [Art. 99, 126 FC]: Spouses.
of his or her exclusive property, the
1. Death of either spouse – follow rules in Art. 103 ownership of which has been vested by
Dissolution
2. Legal separation – follow rules in Arts. 63 and 64 If obligations exceed the assets of the law in the conjugal partnership
of the regime
3. Annulment or judicial declaration of nullity – follow rules in Arts. 50 and 52 ACP, nothing is divided. Creditors can go
Judicial separation of property during marriage – follow rules in Arts. 134 to 138 4 Debts and obligations of CPG shall be
after the separate properties of the
Rules on de De facto separation does not affect the ACP/CPG, except that: paid out of the conjugal assets,
spouses, which are solidarily liable for the
otherwise both spouses are solidarily
facto 1. Spouse who leaves the conjugal home without just cause shall not be entitled to deficiency
separation support; however, he/she is still required to support the other spouse and the family liable with their exclusive property
2. If consent is necessary for transaction but is withheld or otherwise unobtainable, 5 Remains of the exclusive properties
3. Delivery of whatever remains in their
authorization may be obtained from the court shall be delivered to respective owner-
exclusive property
spouses.
4. Balance, or net remainder is divided
equally between the spouses, or in Determine the capital, fruits, and income of each community upon such proof as may be
accordance to the considered according to the rules of evidence.
proportion agreed upon in the marriage In case of doubt as to which community the existing properties belong, they shall be
settlement, irrespective of how much each divided between two communities in proportion to the capital and duration of each.
brought into the community 6 Indemnification for loss/deterioration
5. If personal obligations of a spouse of movables belonging to either
exceed his/her separate property, creditor Q: What is this regime governs the property of both spouses?
spouse, even due to fortuitous event,
can go after the share of the spouse on the used for the benefit of the family A: ART 88 FC - ACPR - Absolute Community Property Regime
net
7 Net remainder of CPG shall constitute
remainder of the ACP, without prejudice Q: What is this regime governs the property of both spouses?
the profits which shall be divided
to the provisions of law on forfeitures and
delivery of presumptive legitimes
equally between husband and wife A: ART 88 FC - shall commence at the precise moment that the marriage is celebrated
except when:
6. After covering all community
a. A different proportion or division was
obligations and obligations of spouses,
agreed upon in the marriage settlements
Q: Dave married Jen B., they both stated in their desired date where the ACPR shall
balance of separate properties shall be commence, what is going to be followed?
b. There has been a voluntary waiver or
delivered to
forfeiture of such share as provided in the A: ART 88 FC - express or implied, for the commencement of the community regime at any
respective spouses or their heirs, and they
will also divide into two equal shares
FC other time shall be void.
whatever is left of the community assets,
without prejudice to the provisions of law 8 Presumptive legitimes are delivered to Q: ACPR vs PSPR
on forfeitures and delivery of presumptive common children A: ART 88 FC - Partial separation of property regime (PSPR) – property not agreed upon as
legitimes 9 Conjugal dwelling goes to: separate is part of the ACPR.
7. Presumptive legitimes are delivered to a. Spouse with whom majority of
common children common children choose to remain (below
8. Conjugal dwelling goes to: 7 y.o. = deemed to have chosen the mother Q: What rules over the conjugal partnership?
based on the tender years presumption) A: ART 88 FC - CCP
a. Spouse with whom majority of b. Whoever the court chooses in case of
common children choose to remain lack of majority
Q: ACCPR vs CPG
(below 7 y.o. = deemed to have chosen
the mother based on the tender years A: CPG - Conjugal Partnership Gains; CPG = Maried Before AUG 3 1988, and governed by
presumption) CC - ACPR=Opposite
b. Whoever the court chooses in case of
lack of majority Q: What are the grounds for Judicial separation of property?
Rules in case of termination of marriage by death of one of the spouses [Art. 104, FC]:
A: ART 89 FC -Spouse of the petitioner has been sentenced to a penalty which carries with it
1. The community property shall be liquidated in the same proceeding for the settlement
civil interdiction (Civil prohibition).
of the estate of the deceased spouse.
2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate -Spouse of the petitioner has been judicially declared an absentee.
the community property either judicially of extra-judicially within one year from the -Loss of parental authority of spouse of petitioner has been decreed by the court.
death of the deceased spouse. -Spouse of the petitioner has abandoned the latter or failed to comply with his or her
obligations to the family.
a. If no liquidation is made within the period, any disposition or encumbrance involving
community property of the terminated marriage shall be void. -Spouse granted the power of administration in the marriage settlements has abused that
power.
b. Non-compliance with liquidation procedures would mean that a subsequently -At the time of the petition, the spouses have been separated in fact for at least 1 year and
contracted marriage will follow a regime of complete separation of property. reconciliation is highly improbable.
Procedure for liquidation of properties of two marriages [Art. 104, FC]:
o Spouse-owner retains ownership, possession, administration
Q: When is there co-ownership? and enjoyment of the separate or exclusive properties
A: ART 90 FC - There is Co-ownership whenever the ownership of an undivided thing or  If the property was gratuitously acquired prior to celebration of marriage or if donor,
right belongs to different persons. testator or grantor expressly provided that it shall form part of the community
property — it shall belong to the community
 Acquisition by gratuitous title by BOTH spouses jointly — the FC is silent and Art.
Q: What will the community property consist of? 113 is not made to apply in ACP
A: Art 91 FC - Unless otherwise provided in this Chapter or in the marriage settlements, the - In the absence of any special provision, it is Art. 753 NCC
community property shall consist of all the property owned by the spouses at the time of the which will apply
celebration of the marriage or acquired thereafter. - The share of each spouse in the donation, which is understood to be
equal, shall pertain to his or her exclusive property
 Purpose of excluding properties of spouse who has legitimate descendants by a prior
Q: What are the things that will be excluded in the community property? marriage — to facilitate identification of properties from which the legitimate
A: Art 92 FC descendants in prior marriage may later on lay claim
- Fruits and interest of these properties are also excluded
Q: Shaira and Simon received a gift from Justice Nardo, a ferrari car, Justice Nardo
- Spouses cannot include their properties by agreement in the MS
intended the gift to be given to Simon so he can take his wife anywhere he wants in the
country, who owns the car?  If an excluded property by reason of MS, in the absence of any agreement, the
A: Art 92 FC - The husband in view of the gratuitous title. (Par. 1) alienation of such property converts the proceeds or the property acquired in its place
to the AC, following Arts. 91 and 93
What Constitutes Community Property  If property is excluded by mandatory provisions of law, it is submitted that the policy
ART. 91 - ART. 93 of the law to stamp their properties with separate character should not be easily
defeated by the simple expedient of converting said properties into some new form
 Future spouses may execute a MS prior to marriage and adopt ACP as their property
regime; they may agree to exclude whatever properties they may have at the time of Presumption of Community Property: (Art. 93)
the celebration of marriage and include therein only the properties that they may Property acquired during the marriage is presumed to belong to the community, unless it is
acquire during marriage proved that it is one of those excluded therefrom.
- Exclusion of fruits and income from such properties depends upon
the agreement of spouses in MS
o They may exclude the fruits and income in their MS
o In the absence of such agreement, fruits and income are to
be considered part of the community property Q: What are the properties included and excluded in the Absolute Community of
 In ACP, the presumption in favor of community must relate to all properties of the Property?
spouses and not only to the properties acquired during the marriage A:
- In CPG, the properties of each spouse at the time of celebration of ACQUIRED PRIOR TO THE ACQUIRED DURING THE MARRIAGE
marriage are not included in the conjugal property, unless contrary is MARRIAGE
provided in MS
o The presumption of conjugality attaches only to property GENERAL RULE
acquired DURING marriage
Included in the Absolute Community of Property (“ACP”) h) Losses during marriage in any game of chance, betting, sweepstakes, or any
other kind of gambling, whether permitted or prohibited by law, shall be
EXCLUDED borne by the loser-spouse
a. Those excluded in the marriage a. Those acquired through gratuitous title, including Q: Shaira the Wife of Simon won the lottery while Simon who went to Las Vegas
settlement; b. Those for personal and fruits and income unless expressly provided by the gambled away M30,000,000.PHP - what shall be done to the winnings and loses?
exclusive use; and grantor that they shall form part of the ACP; and
A: Art 95 FC
c. Those acquired by either spouse who has b. Those for personal and exclusive use. Ownership, Administration, Enjoyment and Disposition of the
legitimate descendants by a former Community Property
marriage, including fruits and income.
ART. 96 - ART. 98
(Arts. 91-92, Family Code)
 Alienation of property must have the written consent of the other spouse or the
ART. 94 - ART. 95
authority of the court without which the disposition or encumbrance is void
 When the other spouse or the court eventually gives their consent or authorization,
 If debt contracted during marriage by both spouses or by either spouse with the
the previous transaction is not deemed ratified since a void contract is not subject to
consent of the other, the law conclusively presumes that such debt has redounded to ratification
the benefit of the family
 While AC is a form of co-ownership, neither spouse can dispose of their respective
 If debt is contracted by the designated administrator-spouse or by one spouse without shares in the community property by way of disposition inter vivos
the consent of the other, the AC shall be liable only if it can be proven that the debt - Art. 493 NCC does not find application in this case because prior to
benefited the community or the family liquidation of AC, the interest of each spouse in the community
 Liability of AC extend only to expenses incurred for the preservation of such separate assets is INCHOATE, a mere expectancy, which constitutes neither a
property used by the family and does not extend to expenses incurred for mere legal nor equitable estate, and does not ripen into title until
improvement or embellishment of such separate property, even if used by the family liquidation and settlement
 Obligations Chargeable to Exclusive Property - Any disposition of spouses’ respective shares or interest in AC shall
a) Support of illegitimate children be void since right to 1/2 does not vest until the liquidation of the
b) Debts contracted by administrator-spouse during marriage which did not AC
benefit the community  However, the Code expressly authorizes either spouse to dispose his or her interest in
c) Debts contracted during marriage by either spouse without the consent of the the community property if the disposition is in the nature of disposition mortis causa
other which did not redound to the benefit of the family and made in a will
d) Ante nuptial debt of either spouse which did not redound to the benefit of the
family ADMINISTRATION OF PROPERTY:
e) Taxes and expenses incurred during the marriage for the preservation of Belongs to both spouses jointly. If thedisagree the husband’s decision prevails. Howeverthe
separate property of either spouse which is not being used by the family wife has five years from the date of the decision to go to court for recourse. Otherwise, it is
f) Civil liability of either spouse arising from crime or quasi-delict presum ed that she agreed with the husband’s decision. (Art. 96)
g) Expenses of litigation between spouses, if suit is found to be groundless
EXCEPTION
When the other spouse is incapacitated, or unable to participate in the administration (e.g.
When abroad).
DISPOSITION OF PROPERTY:
Either spouse may, through a will, dispose his/ her interest in the com m unity property. (Art.
97) However, the will should refer only to his/ her own share in the com m unity property.
DONATI ON OF PROPERTY:
Donation of one spouse without the consent of the other is not allowed (Art. 98, following
logic of Art. 96).
EXCEPTIONS
1. Moderate donations to charity due to family rejoicing or distress;
2. Moderate gifts by each spouse to the other due to family rejoicing.
Q: Who holds the administration and enjoyment of the ACP? and in case of
disagreement, who will take control of administration?
A: Art 96 FC - The administration and enjoyment of the community property shall belong to
both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to
recourse to the court by the wife for a proper remedy, which must be availed of within five
years from the date of the contract implementing such decision.
Q: Does the husband and wife have control on when can they spend on using the ACP?
A: Art 97 – FC
Q: What are the limits of donation when it comes to charity?

A: Art 98 FC - Neither spouse may donate any community property without the consent of the other.
However, either spouse may, without the consent of the other, make moderate donations from the
community property for charity or on occasion of family rejoicing or family distress.
Dissolution of Absolute Community Regime
ART. 99 - ART. 101

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Chapter 3  Only after complying with the requirements may either of the spouses be

2|Lapaan, Lomas-e, Nardo, Marzo (Persons and Family Law Reviewer)

3|Lapaan, Lomas-e, Nardo, Marzo (Persons and Family Law Reviewer)

4|Lapaan, Lomas-e, Nardo, Marzo (Persons and Family Law Reviewer)

 No award of Moral Damages in PI  Intentional Killing of Spouse

6|Lapaan, Lomas-e, Nardo, Marzo (Persons and Family Law Reviewer)

7|Lapaan, Lomas-e, Nardo, Marzo (Persons and Family Law Reviewer)

8|Lapaan, Lomas-e, Nardo, Marzo (Persons and Family Law Reviewer)

 Procedure now governed by AM No. 02-11-10-SC and AM No. 02-11-12-SC

In case of disagreement, the Court shall decide whether: Marriage Settlements

Distinguished from Ordinary Donations Separation of Property

Q: What are the limits of donation when it comes to charity?

Dissolution of Absolute Community Regime

ART. 99 - ART. 101

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