PERSONS AND FAMILY RELATIONSCOMPLETE REVIEWER

Background on the Philosophy of the Civil Code:

“The Philosophy of the Civil Code” Tasks of the investigator of the Philosophy of Law:

1. Trace the origin of law to its sources in human nature;

2. Connect the law with the society that evolved and the circumstances of the time in which it originated;

3. Relate the importance of the law under the influence of economic, social and other conditions;

4. Point out the basic elements of the law;5. Distinguish law from ethics.

Our Civil Code was founded on the laws of Spain which was based largely on Roman Law (Institutes of Justinian).

Corpus Juris Civilis- accumulation of old Roman Laws as modified by early Christians.

Ancient Roman Law was the combination of tribal customs, royal edicts, and priestly commands.

Ancient Romans fashioned their laws according to their lifestyle, which at that time was greatly influenced by religion.

Lex Jus- Command and Justice

Relationship was not only between men but between God and men. Crimes, at that time, were considered a disturbance of this relation.

Laws were designed to maintain and restore the peace of the gods (pax decorum), peace between men and peace between god and men.

Theory of Injury and Liability- Injuring one’s neighbor was discouraged because such act would prompt gods to strike back at the ‘evil doer thereby causing the imperil of the entire community.

It is only when law becomes distinguishable from religion that its philosophy becomes discernible.

Philosophy of Private Roman Law

Bonus Pater Familias- Literally meaning “good father of the family,” this was considered a standard by which one should pattern his conduct.

- Roman law was typically, a law without ethics.

Law of Contracts and Bailments- Someone who broke his oath is considered a danger to society and is in danger of mortal peril.

-Roman laws of property were extremely individualistic.-Romans only recognized two forms of association—societas and corporation.

Two Principles to Moderate the Extreme Individualism of Roman Law

Humanitas- Considers kindness, goodness, sympathy, consideration for others.

In contrast to pater familias where heads of the family are allowed to kill his children and wife.

Spanish Precedents of Philippine Law

Visigoths- Early settlers in Spain that were overrun by Moors who converted the former into Christianity.Moors- Promulgated non-barbaric laws

Alaric, Leader of the Goths- Promulgated Code of Alaric which introduced barbaric tribal customs to Roman Law. Fuerzo Juzgo- First great code of Spain combining Roman, Germanic and Religious edicts.

Siete Partidas- Written by Fernando III and Alfonso X, it contained laws based on Spanish Visigoths but patterned after Institutes of Justinian.

Contained 7 codes pertaining to different aspects of law.

First book contained natural laws, usages and custom and administrative laws.

Second book contained administrative laws. Third book contained court rules, land ownership and

possession laws and servitude laws. Fourth book contained laws on persons and family

relations. Fifth book contained laws on obligations and

contracts. Sixth book contains laws on succession, intestacy,

heirship and guardianship. Seventh book contained penal laws.

Medieval Philosophy and its InfluenceSt. Augustine- The state is a kingdom of the Impious

St. Thomas Aquinas- Wrote the Summa Theologica Lex Externa- laws based on divine reason which

governs the world. Lex Naturalis- Natural laws which are made known

through reason. Lex Humana- Positive laws which are man-made

applications of natural laws.

Penal Principles Justicia Generalis- obligation of restitution Justicia Particularis

o Justicia commutative- obligation of restitution

o Justicia distribution- distributive justice applying justice in geometric proportions.

Ordenamiento Alcala- spiritual aspects of contractsLeyes de Toro- Written by the Spanish Cortes in 1502Nueva Recopilacion- compilation of all Spanish Laws made in 1567Novisisima Recopilacion- another compilation of Spanish Laws.

1805- Civil Code became a model-Four-book compilation of the Civil Code was promulgated.

Book One: Persons and Family Relations Book Two: Property, Ownership and Modification Book Three: Modes of Acquiring Ownership Book Four: Obligations and Contracts

American Influence on the Civil Code INDIVIDUALISM became a pervading theme during

the forging of the new Civil Code. - Bill of Rights- Seeking redress for grievances

Intersection of Modern Constitutional Developments and Traditional Family Law

Constitutional Provisions

Article II, Section 12: The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive support of the government.

1

Article II, Section 14: The State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men.

Article III, Section 1: No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

Article XV, Section 1: The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

Article XV, Section 2: Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the state.

Griswold vs. ConnecticutFacts: Griswold was executive director of the Planned Parenthood League while Buxton, his co-plaintiff was a licensed physician who served as director of the said league. Both were convicted as accessories by virtue of a Connecticut birth control law which bars them from giving information, instruction and medical advice for contraception, to married persons. A married woman was examined in the league’s headquarters along with her husband and was given a prescription for contraception. Held: The Connecticut Statute which forbids contraceptives abridges the right to marital privacy without due process of the law. The state interest protected by the statute, which is to prevent extra-marital relations is carried out is a manner so sweeping as to penalize the inherent intimacies of couples who have the right to plan their family.

Eisenstadt vs. BairdFacts: William Baird was tried for exhibiting contraceptives while delivering a lecture and for giving a young woman contraceptives. A Massachusetts law only allows the sale of contraceptives with prescription from a physician or a pharmacist for married couples. Held: The statute violates the equal protection clause of the 14th amendment in that it discriminates between married and unmarried couples. The means by which the State Interest is protected is not rationally adequate whether the interest be prevention of pre-marital sex or health protection. For one thing, the measure does not prevent extra-marital relations for another, not all contraceptives are considered dangerous. Lastly, the discrimination makes it seem as though pre-marital conception and sexually transmitted disease is punishment for pre-marital sex. This punishment is then handed out without due process of the law.

Civil Personality

Concepts and Classes of Persons

Person- any being that can be subject of legal relations.

Classes of Persons: Natural Persons- Human beings Juridical Persons- entities formed by the association

of men.

Personality- aptitude of becoming subject of, active or passive, juridical relations

Status of Persons- Legal condition or class which one belongs in society

- It is the legal or the juridical position of the individual in society, or with regard to the rest of the community

- It is determined by a series of personal qualities, which respectively carry with them certain rights and obligations.

- A person’s status serves to determine the nature and number of rights and obligations.

Kinds of Status- Political or Civil, depending on whether he is

considered in the light of public law or private law.- Rights and obligations in connection with suffrage

refer to Political status while those arising from family relations refer to Civil status.

Civil Status- Status as a member of society (i.e. resident or non-

resident)- Status as a member of a family- Status with respect to the person himself (i.e. age,

mental condition, sex)- Profession cannot be considered status because the

qualities which create a status should be inherent in the person himself.

Characteristics of Status- the status of a person is outside the commerce of man hence:

- It is inalienable in that it cannot be transferred to another;

- It is imprescriptible in that it cannot be imposed on a person;

- It cannot be the subject of compromise;- It cannot be renounced;- It cannot be exercised by creditors

CC Article 37: Juridical Capacity is the fitness to be the subject of legal relations. It is inherent in every natural person and is lost only through death. Capacity to act which is the power to do acts that have legal effect, is acquired and may be lost.

Juridical Capacity- legal capacityCapacity to Act- aptitude for the exercise of rights which is conditional and variable, requiring intelligence and will.

CC Article 40: Birth determines personality.The conceived shall be considered born for all purposes that are favorable to it provided that it be born later.

Birth- removal of the fetus from the mother’s wombConceived Child- can be given inheritance by will or donations

CC Article 41: The fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. For premature birth of less than seven months, it is considered born if it survives for at least 24 hours after its delivery.

Separation- cutting of the umbilical cord

2

Test of life- complete respiration or in the case of a deceased child, the lungs should float in water. Viability- the child’s ability to live which is presumed if it survives separation from the mother

Geluz vs. Court of AppealsFacts: Nita Villanueva has gone through abortion thrice. Oscar Lazo sued Geluz the abortionist for pecuniary damages which was granted by the Court of Appeals and then appealed by Geluz in the Supreme Court.

Held: An unborn child has no juridical capacity and as such, the parents cannot sue for pecuniary damages on its behalf. The child not having been born, the parent’s are not in the position to sue on its behalf because they cannot be considered parents if there is no child to speak of. Moral damages cannot be granted because of the indifference of the father.

CC: Article 42: Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased shall be determined by law, by contract or by will. -For certain purposes, the personality is deemed to continue in the estate of the deceased which has a legal personality independent of the heirs.

People vs. TirolFacts: Ciriaco Baldesco and Bonifacio Tirol were among the fourteen who murdered 7 members of the family of Manibpol Kosain. They were convicted of 7 murders and 2 frustrated murders as Manibpol, the father and his daughter, Undang, survived. In the course of the appeal, while awaiting the final sentence, Baldesco died in prison.Held: Baldesco’s civil and criminal liabilities are extinguished by his death however, indemnities shall be paid for through his estate.

CC Article 43: If there is doubt between two or more persons called to succeed each other, as to which of them died first, the one who alleges the death of one prior to another shall have the burden of proof.If no proof is available then it shall be presumed that they died at the same time. Note: There is an issue of succession and not just survivorship.

-Rule 123, section 69, paragraph ii:If two or more persons die in a calamity and it cannot

be shown who died first and there are no circumstances by which it can be inferred, survivorship is presumed from the probabilities resulting from the strength and age of sexes.

1. <15 years, the older is presumed to have survived2. > 60 years, the younger is presumed to have

survived3. <15 and >60, the younger is presumed to have

survived4. >15, <60 for both; male is presumed to have

survived if sexes are the same, then the older one.5. <15 or > 60 and >15 ,<60, the younger is presumed

to have survived

Joaquin vs. Navarro

Facts: During the Liberation of Manila, Joaquin Navarro Sr., his wife Angela Joaquin, his three daughters, Pilar, Conception and Natividad and Joaquin Navarro Jr together with his wife Adela Conde and friend Francisco Lopez, sought refuge inside German Club. The three daughters were instantly killed. Joaquin Sr., Joaquin Jr., with his wife and friend, fled the place leaving Angela Joaquin in the German Club. Immediately after leaving the place, as attested by Francisco Lopez, Joaquin Jr. was shot in the head. Minutes later, German Club collapsed presumably killing Angela Joaquin inside. Days later, Joaquin Sr. died in a confrontation. The victims were survived by Ramon Joaquin, natural child of Angela Joaquin by her first marriage and Antonio C. Navarro, and son of Joaquin Navarro by his first marriage. The Court of Appeals invoked the statutory provision on the presumption of survivorship.Held: The statutory provision cannot be invoked because there are evidences as attested to by Francisco Lopez, from which it can be inferred that Angela Joaquin survived Joaquin Navarro Jr. before having died herself.

CC Article 44: The following are juridical persons:1. The State and its Political Subdivisions2. Public corporations, institutions and entities which

are created by law3. Private corporations, partnerships and associations to

which the law grants juridicalpersonality.

-Corporation is an artificial being created by law and as such, enjoys certain rights and privileges that can be afforded to it.

CC Article 45: Juridical Persons such as the state and public corporations are governed by laws recognizing them. Private corporations are governed by laws of general application on the subject.

-Corporations are governed by its charter and the Corporation Law -Private Partnerships are governed by its articles of association and their contract.

CC Article 46: Juridical Persons may acquire and possess property, incur obligations and liability or criminal actions in conformity with laws and regulations of the organization.

- Juridical capacity is extinguished upon dissolution of the corporation, association or partnership.

CC Article 47: Properties and assets of dissolved corporations or other entities shall be disposed of in pursuance to the law or the charter creating them. If nothing is specifically written, then it shall be applied for the benefit of the region, province or municipality which it derived principal benefits from.

Capacity to Act and Restrictions Thereon

Presumption of Capacity

Standard Oil Co. vs. ArenasFacts: Juan Codina Arenas, Francisco Lara del Pino (principals) and Alipio Lacso, Vincente Sixto and Siy Ho (sureties) assumed obligations to pay jointly and severally to Standard Oil Co.

3

the sum of P3,305.76 three months from the execution of the bond, with 1% interest per month. Arenas and Lara del Pino failed to pay the bond and, as sureties, Vincente Sixto along with Siy Ho and Alipio Lacso are compelled to pay the said amount. The court declared Vincente Sixto in default for having failed to show up at the trial concerning the said bond and was ordered to pay the defendants the amoun. Elisa Torres de Villanueva appeared in court alleging that her husband, Sixto Villanueva, had been declared permanentlyinsane by the Court of First Instance of Manila and wishes for the exemption of the husband from paying the said bond as he is said to be suffering from monomania of wealth. Held: Burden of proof for insanity lies on the person who alleges it. There were no evidence to prove insanity, save from the declaration of the Court of First Instance. There were, in fact, a preponderance of evidence stating otherwise, among these are the lack of restriction on the husband (the husband is not habitually insane), the apparent sound mind of Villanueva during the execution of the contract (he understood the nature of the bond), and he has made contracts prior to that (the husband had not been insane prior to the execution of the bond).

Restrictions

CC Article 6: Rights may be waived unless it is contrary to law, public order, public policy, morals or good customs or prejudicial to a third person’s rights.

-Kinds of Rights:1. Rights of Personality-rights which protect the human personality.2. Family Rights-rights of a person as a member of a family.3. Patrimonial Rights- Rights referring to ownership, etc.

CC Article 38: Minority, imbecility, the state of being deaf mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations.

Minority- by virtue of RA 6809, the age of majority has been lowered to 18 from 21. Insanity or Imbecility- includes various forms of mental diseases. Some may sometimes only be mentally deficient. Deaf-mute- No longer to be presumed an idiot and is now considered capable of entering into contracts if is shown to have sufficient mental capacity.Prodigality- characterized by excessive drinking, gambling, idleness or debauchery

CC Article 39: The following circumstances limit a persons capacity to act: Insanity, imbecility, being deaf-mute, civil interdiction, prodigality, family relations, alienage, absence, insolvency and trusteeship. Capacity to act is not limited on account of religious belief or political opinion.A married woman, eighteen years of age are qualified for all aspects of civil life except if specified otherwise.

Note: We always presume what is normal. Otherwise, our daily lives will be greatly affected.

A. Minority

CC Article 1327: Unemancipated minors, insane or demented persons and deaf-mutes incapable of writing, cannot give consent to a contract.

CC Article 1390 (1): In cases where one of the parties is incapable of giving consent to a contract, the contract becomes voidable* or annullable even though there was no damage to the contracting party.

CC Article 1403 (3): A contract where both parties are incapable of giving consent is unenforceable** unless ratified.

*A voidable contract is one whose validity can be disputed in court as opposed to **an unenforceable contract which is valid or binding only between the two parties but is likewise unenforceable in court.

CC Article 1397: Persons who are capable cannot allege the incapacity of those with whom they contracted.

CC Article 1399: An incapacitated is not obliged to make restitution except in so far as he has benefited from the contract. CC Article 1426: There is no right to demand a thing or price from a minor who, because of lack of consent from the parent or guardian, upon the annulment of the contract, returns the thing or price he received.

CC Article 1427: When a minor pays according to a contract, without the consent of his parent or guardian, the sum of money delivered cannot be returned to the minor because the other party is expected to have spent it in good faith.

Effect on Contracts

Mercado vs. Espiritu- Facts: The annulment of a deed of sale was sought on the ground that two of the four parties in the deed were minors when the deed was executed. In the deed of sale the minors stated they were of legal age when they made the manifestation in front of the notary public and then signed it. Held: Contracts signed by minors who allege they are of legal age and in fact, appear to be so, is valid and binding. They are therefore estopped* from alleging otherwise.

*barred from disputing the genuineness of the deed of sale, as in the case of Mercado vs. Espiritu.

Bambalan vs. Maramba and MuerongFacts: Isidro Bambalan was the heir of a piece of land owned by Vicente Lagera, deceased. Bambalan was forced by Maramba and Muerong to whom the mother owed P150, to sign a deed of sale as his mother will otherwise be put in prison. Bambalan signed the contract and both Muerong and Maramba knew of his age as they were the ones who procured the cedula necessary to certify the contract.

4

Held: Plaintiff’s age was known to the contracting parties as such, the contract is not valid and the right of Bambalan as a minor can be enforced.

CC Article 1489: All persons authorized by the Code can enter into a contract of sale. When necessaries* are sold and delivered to a minor or a person without capacity, he must pay a reasonable price therefore.

*Those which are indispensable for sustenance.

Braganza vs. Villa AbrilleFacts: Rosario Braganza and her sons, Guillermo and Rodolfo, signed a promissory note indicating that they will pay a loan given by a certain Fernando Villa Abrille. The loan amounted to P70,000 in Japanese currencies and, according to the promissory note, Braganza will pay P10,000 in legal currencies. The two sons were minors at the time the contract was signed. Held: The contract, insofar as the minors were concerned was not valid. However, they must make restitution insofar as they benefit. As such, they not pay 2/3 of the amount stipulated in the contract but merely the amount that was loaned to them which was P1,166.00 in legal currencies.

Shields vs. GrossFacts: In 1975, when Brooke Shields was 10, a consent was given by her mother on her behalf, indicating that the pictures taken by Gary Gross may be used for whatever purposes. Plaintiff requested the court to prevent defendant from using her pictures. Non-jury court prevented the defendant from using the pictures for advertising or trade on the grounds that court approval for a minor was necessary to validate the consent, as stated in Section 3-105 of the General Obligations Law. Held: By virtue of Section 50 and 51 of the Civil Rights Law, a person’s pictures, name, etc., can be used if written consent is given. If the person is a minor, his or her parents can give the consent. As such, the consent was valid. Section 3-105 cannot be invoked as Shields did not fall under the categories stipulated under the said statutory provision.

Effect on Marriage of Minors

FC Article 5: Any male or female aged 18 and above, may contract marriage.

FC Article 35: The following are void marriages from the beginning:

1. Those contracted by any party below 18 years, even with the consent of a parent or guardian

2. Those solemnized by a person not legally authorized to perform a marriage unless the married couple believed in good faith that the person was authorized

3. Those solemnized without a license4. Those bigamous or polygamous5. Those contracted through a mistaken identity

Moe vs. DinkinsFacts: Maria Moe and Raul Roe alleged that the New York Domestic law 15.2 which states that males between 16-18 and females between 14-18 must obtain parental consent to be granted marriage, is unconstitutional. They stated that they have a child born out of wedlock and they do not wish for their child to grow up with the stigma of illegitimacy. Cristina Coe and Pedro Doe filed a motion to interfere as they had a stake at the outcome of the trial. Cristina Coe’s mother, like Maria’s also refused to give her consent to the wedding but unlike Maria, Cristina’s child was yet to come.Held: The State’s interest as parens patriae (guardians of the country) in protecting minor from making immature decisions is legitimate and the manner by which this interest is protected is proportionate to the interest.

Effects on Crime

RPC Article 12: The circumstances which exempt from criminal liability are:

1. An imbecile or insane person (unless he acted during a lucid interval),

2. A person under 9 years of age*,3. A person over 9 years of age but under 15, unless it

can be proven that he acted in discernment, in which case, he will be sent to an institution servicing such children with criminal liabilities.

4. Any person who causes an injury while performing a lawful act,

5. Any person who acts under a compulsion of irresistible force.

RPC Article 18: Accomplices are those who cooperate in the execution of an offense by previous or simultaneous acts.

RPC Article 68: When the offender is a minor under 18 years of age, if he is—

1. Over 9 years and under 15 and it has been proven that he acted with discernment then a discretionary penalty shall be imposed which must always be lower by two degrees than that which the law prescribes for such crime.

2. Over 15 years and under 18 years of age, the penalty being the next lower penalty prescribed by law for that crime but always in the proper period.

B. INSANITY

Effects on Contracts

CC Article 1327: (Page 5)

CC Article 1399: (Page 6)CC Article 1328: Contracts entered into during a lucid interval are valid while those entered into in a state of drunkenness is voidable.

5

Carillo vs. Jaojoco and JaojocoFacts: Adriana Carillo executed a deed of sale to Justiniano Jaojoco. Nine days later, Carillo was declared to be mentally incapacitated and then died still later. Miguela Carillo appealed for the annulment of the said contract stating that Adriana Carillo could not have executed the deed in a lucid state owing to the fact that the land of over 300,000 hectares was sold for only P4,000.Held: The contract is valid. Burden of proof of mental incapacity lies on the person who alleges it. No such proof exists and prior to the confinement of the deceased in Hospicio de San Lorenzo, she was able to manage her estate, which had been left to her by her husband. Her doctor and the one who executed the notarial instrument also noted that the deceased was responsive at the time they had been with her.

Effect on Crimes

RPC Article 12

US vs. VaquilarFacts: Evaristo Vaquilar killed his wife and daughter and as such, he was convicted of parricide for which he appealed. Witnesses do not know of any prior disagreement between the deceased and the defendant which may have caused a sudden outrage. They witnessed however, that the defendant looked like a madman, going after everyone in sight. His eyes were red and penetrating and he had complained of stomach and head ache before the event occurred. Held: An extremely angry man often acts like a madman. Although no prior disagreement was witnessed, that is not sufficient as to say that the defendant was in sane. Any person who allows his or her anger to go so far as to make them reckless does not excuse him from criminal liability.

Dumaguin vs. AI Reynolds, EJ Harrison and Big Wedge CompanyFacts: Paulo Dumaguin was admitted to Hospicio de San Felipe as he was suffering from paranoia. His wife had filed for guardianship which was granted. Dumaguin later acquired a job as a prospector who relocates mining claims to ANACONDA group owned by AI Reynolds and EJ Harrison. Ten mining claims were located and as prospector, the claims were filed under Dumaguin’s name in the Office of the Mining Recorder, until a deed of transfer was executed. Dumaguin then asked the court that the deed of transfer executed by him be considered null and void because he did not possess the mental capacity to execute such transfers. Held: A person under guardianship could still enter into a contract provided that he or she was

not in mental defect during the execution of the contract. Also, having been employees of ANACONDA group, it was within the confines of their job to execute such transfers. Nevertheless, if he did own the mining claims, it would have been aptly named “deed of transfer.”

Effect on Marriage

FC Article 45: A marriage may be annulled for any of these causes:

1. If the party was over 18 and under 21 and the marriage was solemnized without the consent of parents or guardian, unless after reaching the age of 21 the couple has continued to cohabit,

2. Either party was of unsound mind unless the party has come to reason and freely cohabit,

3. Consent by either party was obtained by fraud or force,

4. Either party was physically incapable of consummating the marriage and the incapacity is incurable,

5. Either party was afflicted with STD which is incurable.

FC Article 47: The persons who can file for an action for annulment are:

1. By the party whose parent or guardian did not give consent, within 5 years after attaining the age of 21, or by the parent or guardian before the minor reaches 21,

2. By the sane spouse who did not know of the other person’s insanity or by the guardian of the insane or by the insane spouse during a lucid interval.

3. By the injured party, within years of the discovery of fraud or force,

4. For the injured party, in relation to STD and Impotence, after 5 years of marriage.

C. State of Being Deaf-Mute

CC Article 1327: (Page 5)

CC Article 807: If the testator* is deaf or a deaf-mute, he must be able to personally read the will or designate two persons to read it and communicate with him in a practicable manner.*A person whose property is transmitted through a will.

CC Article 820: Any person of sound mind and legal age, not blind, deaf or dumb and able to read and write, may be a witness to the execution of a will.

People vs. SasotaFacts: Fidel Sasota was found guilty of raping Rufina Barbuco, a deaf and dumb girl. The crime was witnessed by Severa Barbuco, a seven-year old girl who testified along with Rufina. The defendant alleged that neither Rufina nor Severa can testify as one was deaf and dumb and the other too young.Held: The theory that deaf and dumb persons cannot testify as a competent witness has been dispelled (People vs. de Leon) because it is not sufficient. For as long as the requisite intelligence required to understand the nature of the oath can be proven then a deaf-mute can testify. In relation to the seven year old, the court has held that a child can testify as long as he or she can understand the nature of the oath.

6

Director of Lands vs. AbelardoFacts: Director of land claims that the failure of Fulgencia and Jose Dino to register any claim to lots nos. 773 and 810 which was previously owned by their grandmother, is due to their being deaf and dumb. As such, they were unable to act within the prescriptive period within which they can register their claim. Held: The state of being a deaf-mute is not considered an incapacity that will prevent a person from running of a prescriptive period.

D. Prodigality

RC Article 92 (2): Persons suffering the penalty of civil interdiction, hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those of unsound mind and other similar cases, cannot, without aid, take care of themselves and manage their property.

Martinez vs. MartinezFacts: Pedro Martinez appealed to the Supreme Court to declare his father, Francisco Martinez, a prodigal. Pedro Martinez alleged that since his father’s marriage to Anastacia Ilustre, his father’s second wife, the wide and her parents have been given properties amounting to $200,000. He added that the administration has also been turned over to his father’s wife. Defendant stated that the son had, prior to the marriage, managed the estate by power of attorney but it was revoked because the son has mismanaged and misappropriated the property. The estate was said to have flourished since it was managed by Francisco Martinez’ wife and one half has also been in the ownership of Pedro Martinez, him being the sole heir of the first wife. Held: Acts of prodigality must show a morbid state of mind and a disposition to spend, waste and lessen the estate to such an extent as to expose the family to poverty.

E. Civil Interdiction

RPC Article 34: Civil interdiction shall deprive the offender of the rights of parental authority or guardianship, either as to person or property.

RPC Article 11.2: Relatives that can be defended (without criminal liability): spouses, ascendants, descendants, legitimate, natural or adopted brothers and sisters, relatives by affinity in the same degree or relatives by consanguinity of the 4th civil degree.

RPC Article 13.5: Acts which are committed in immediate vindication of a grave offense to the one committing the felony (are mitigating circumstances).

CC Article 54: Males 16 years upwards may contract marriage while females 14 years upwards may contract marriage.

CC Article 123: A person under civil interdiction may contract marriage provided that there is a court designated guardian available to witness the said marriage.

F. Family Relations

FC Article 37: Marriages between ascendants and descendants of any degree or between brothers or sisters full or half-blood, are considered incestuous and void.

FC Article 87: Donations or grants given directly or indirectly between spouses during marriage are void with the exception of moderate gifts. The same is true for persons living together as husband and wife.

- This is dictated by the principle of unity of personality of spouses.

- Any person prejudiced by the donation or grant may question its validity.

CC Article 1109: Prescription* does not run between husband and wife even though there is a separation of property agreed upon in the marriage settlements. The same is true between parents and children that are still minors or those considered insane and between guardian and ward.

CC Article 1490: Husband and wife cannot sell property to one another when separation of property has been agreed upon and there has been judicial separation.

G. Alienage

PC Article 12-Section 2: All natural resources, with the exception of agricultural lands, are owned by the state. As such, exploration, development and utilization are under its full control and supervision. The State may undertake such activities directly, in co-production, joint venture or production sharing with Filipino citizens or corporations or associations where 60% of the capital is owned by Filipinos. The same is true for agreements with foreign-owned corporations. Only small-scale utilization of marine life is allowed. Section 7: No private lands shall be transferred to individuals, corporations or associations qualified to acquire land, except in cases of hereditary succession.Section 8: Natural-born citizens of the Philippines who has lost citizenship maybe a transferee of private lands subject to limitations provided by law. Section 11: Franchise, certificate or any form of authorization for operation of public utility may be granted to citizens of the Philippines or corporations, associations or organizations where at least 60% of the capital is owned by Filipinos. All executive and managing officers of public utilities must be citizens of the Philippines.

PC Article XIV-Section 4: Educational institutions, apart from those owned by religious groups or mission boards must be owned solely by citizens of the Philippines or corporations or associations at wherein 60% of the capital is owned by citizens. Congress may legislate to increase Filipino equity participation. No educational institution shall be established exclusively for aliens. No group of aliens shall comprise more than one third. These provisions do not apply to schools established for foreign diplomatic personnel and their dependents. Revenues, grants and endowments shall be exempt from taxes.

PC Article XVI-Section 11: Ownership and management of mass media shall be limited to citizens of the Philippines or corporations, cooperatives, associations wholly owned and managed by such citizens.Congress shall prohibit monopolies in commercial mass media for the sake of public interest. Filipino citizens or corporations and or associations wherein seventy percent of capital is owned by citizens of the Philippines shall be allowed to engage in the advertising

7

industry. All executive and managing officers must be citizens of the Philippines.

H. Absence

CC Article 390: An absentee shall be presumed dead for all purposes, after an absence of seven years. For purposes of succession, absentee shall be presumed dead after 10 years or 5 years for those 75 and above.

CC Article 391: The following are presumed dead for all purposes:

1. Person on board a lost sea vessel or aeroplane,2. Person missing for 4 years after taking part in a war,3. Person who after being in danger of death has not

been heard from for four years.

FC Article 124: Conjugal partnership property belongs to spouses, jointly. In case of disagreement, the decision of the husband shall prevail and the wife may appeal for remedy in court within 5 years since the implementation of the contract. Spouse may assume sole powers in case the other is incapacitated.Encumbrance or disposal of property shall be with the authority of the court or with the written consent of the spouse.A contract with the authorization of the spouse is binding.

I. Marriage CC Article 2259: The capacity of a woman to enter into contract is governed by the civil code even if the marriage occurred prior to the enactment of the said code.

RC Rule 3, Section 4: A married woman cannot be sued alone without joining her husband except:

1. When they are judicially separated,2. If they have been separated for at least 1 year,3. When there is a separation of property agreed upon

in marriage settlements,4. If the administration of all the property has been

transferred to her,5. When the litigation is between husband and wife,6. When the suit involves her paraphernal property,7. When the action is a civil liability arising from a

criminal liability,8. If the litigation is based on the profession, occupation

or a business in which she is engaged,

MarriageNature of Marriage

-Procedure by which a man and a woman become husband in wife, uniting for life.

-A status involving duties or responsibilities which are no longer matter for private regulations but the concern of the state.

-Civil or social institution which is the foundation of a family and origin of domestic relations.

Purposes of Marriage1. Reproduction2. Education of the offspring3. Mutual help

Immediate purpose: constitute a complete and perfect community between two individuals of different sexes.Remote purpose: preservation of human race.

FC Article 1: Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature consequences and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this code.

Ordinary Contracts vs. Marriage Contracts:- Ordinary contracts may be entered into by any

number of persons of whatever sex while marriage can be entered into only by one man and one woman.

- In ordinary contracts the agreement of the parties have the force of law between them while in marriage, the law fixes the duties and rights of the parties.

- Ordinary contracts can be terminated by mutual agreement of the parties while marriage cannot be so terminated. Neither can it be terminated even though one of the parties subsequently becomes incapable of performing his part.

- Breach of ordinary contracts gives rise to an action for damages while breach of the obligations of a husband or a wife does not give rise to such an action..

- The State’s role is to protect the family as the foundation of the nation.

PC Article XV- *The states role is to protect the family as the foundation of society.Section 1: State recognizes the Filipino family as the foundation of the nation.Section 2: Marriage is an inviolable social institution.Section 3: State shall defend-

1. The right of spouses to found a family in accordance with their religion and the demands of responsible parenthood.

2. The right of children to assistance, and special protection.

3. The right of family to a family living wage income.4. The right of families to participate in the planning

and implementation of policies and programs that affect them.

Section 4: The family has the duty to care for its elderly members.

Breach of Promise

CC Article 19: Everyone must act with justice, give everyone his due and observe honesty and good faith.

-The exercise of a right ends where the right disappears and it disappears when it is abused, to the prejudice of others. Good Faith- abstaining from taking advantage of others.

-A bride or groom who breaks an engagement without reason causing moral and material injury to the other party is liable for damages especially if the decision is made just before the wedding and after a long engagement.

8

CC Article 20: Every person who willfully or negligently causes damage to another shall be liable for indemnity.

-A person is required to act with prudence and diligence.

CC Article 21: Any person who willfully causes loss or injury to another in a manner contrary to morals, good customs or public policy is liable for damages.

-Acts which are not unlawful but are likewise contrary to morals or good customs, public order or policy shall fall under this provision. This article was created to provide adequate legal remedy.

Willful Act- an act done with knowledge of the effect- Seduction, wherein a woman who was promised with

marriage gives herself to a man but was later left by the man qualifies as deceit and may be used as basis for indemnity.

- So long as there is a wrongful act and a resulting injury, there should be civil liability.

-The injury must be the proximate cause of an act. -No person shall unjustly enrich himself at the expense of another.

CC Article 2176- Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence is considered a quasi-delict and is governed by law.

Wassamer vs. VelezFrancisco Velez and Beatrice Wassmer decided to get married on Septemeber4, 1954. On Sept. 2, Velez left a note saying that the said marriage has to be postponed. The following day, another note arrived saying the marriage was still going to push through. After that, plaintiff has never heard from him. When plaintiff filed for evidence before the clerk of court, the defendant was held in default and as such, plaintiff was awarded P2,000 actual damages, P25,000 moral damages and P2,500 for attorney’s fees. Defendant filed a motion for relief and court gave both parties enough time to settle outside of court. No such settlement happened and several times, the defendant asked for extension. Held: The manner by which the defendant left the plaintiff, only a few days before the wedding, was contrary to good customs. At that time, the wedding has been aptly prepared and the visitors had been notified and so, that the plaintiff was affected is no longer in question. Civil indemnity is due in this case.

Tanjanco vs. CAFacts: Apolinario Tanjanco and Arceli Santos are both of adult age. Santos consented to have sexual intercourse with Tanjanco with the promise of marriage. After almost a year of such relationship, Santos conceived of a child and due to humiliation she left her job at IBM Philippines where she received P230/ month. Tanjanco, then refused to marry Santos who was no longer able to support herself and the child. She was then

prompted to sue for moral damages and to compel the defendant to support herself and the child. Held: Article 21 cannot be invoked in this case as it was already evident to the woman that Tanjanco no longer had any intention of marrying her even before she conceived of a child. Seduction, an example given by the code commission under Article 21 connotes deceit, enticement, and abuse of confidence. Such features are not present in the case wherein there where several instances of sexual intercourse for a period of almost one year.

De Jesus vs. SyquiaCesar Syquia had sexual relations with Antonia Loanco. Through a letter to a priest, he had made it apparent that he wanted the child carried by Antonia to be recognized as his. In several other letters, he referred to the child as “junior.” For a while the two partners lived under one roof with Antonia’s mother, after the birth of the child. Another child was conceived, upon which, Syquia left, never to be heard from again. At the christening of the child, Antonia named the child Ismael Loanco. Antonia then filed a suit against Syquia, to recover P30,000 for damages for breach of promise to marry and to pay for her maintenance along with the two children. Trial court ordered that the first child be recognized and for Syquia to pay a monthly maintenance of P50. Held: Supreme Court affirmed the judgment on the grounds that the breach of promise was not satisfactorily proven, owing to the fact that the sexual relations continued even after the birth of the first child and even though there was still no marriage. In relation to the second child being recognized, there was no proof to compel such action.

Marriage Models

“Economics and the Public Purpose”By John Kenneth Galbraith-Industrialization eliminated the need for women to work.-Rising standards of popular consumptions saw the need for household managers—married women.-The lady of the house is the chief menial to the household.-Diversity and consumption increase made household management complex thereby requiring management skills.-Women were converted into “crypto servants” contributing ¼ of the Gross National Product by way of efficient consumerism.Household- the disguise for the exercise of male authorityNeoclassical Consumer Equilibrium- the distribution of income to various uses so that satisfactions are roughly equal to the margin-Decisions depend on who earns a living.-Women had only the power to implement decisions and not make them. -“The service of women to the economy is based on her sense of duty and capacity to affection.”

Graham vs. Graham

9

Facts: On September 17, 1940, Sydney Graham contracted with Margarethe Graham to the effect that Margarethe shall pay Sydney the amount of $300 per month until such time that the parties no longer desire to continue with such an arrangement. On July 11, 1933, the married couple divorced. The plaintiff then filed a suit against his former wife in order to claim the remaining amount of money that he should be accorded by virtue of the contract. Plaintiff alleged the contract was done so that he can accompany his wife on her travels. The total amount claimed until November 7, 1939 was $25,000 with 3% interest per annum. The defendant on the other hand alleged that the contract was not within the powers of a married woman under a Michigan law and that the divorce should have effected the termination of the said contract. Held: Under the Michigan law invoked by the defendant, women have no general power to enter into a contract except in separation of properties. Also, private contracts between married individuals which are contrary to public policy are unenforceable by virtue of Sec. 587 entitled “Bargain to Change Essential Obligations of Marriage.” The court held that if contracts which are contrary to the essential obligations of marriage wee permitted, it would invite an endless field of controversy and litigation and would destroy the element of flexibility needed in making adjustments to the new conditions of marital life.

Challenges to the Traditional Marriage Models

“Looking Backward in Order to Look Forward”By William H. Chafe-In the 1970’s, the status of women had already transformed because of social and economic forces. -After the “baby boom” of the 1950’s, there was a downturn in the birthrate such that by 1970’s, the birthrate had reached a level of zero population growth.-There was a trend in later marriages and of young women of child bearing age joining the labor force.-Women also begun entering professions that have almost exclusively been for men. -By 1970’s, the traditional norm of stay-at-home-mothers had already changed.Multiplier Effect- shifting values interacted with changing economic conditions to create a new pattern of family and work life.

The Changing Status of Women

Dunn vs. PalermoFacts: Rosary Palermo who is married to Denty Cheatham has continued to use her maiden name since her marriage. Because of a state-wide compulsory registration law, Palermo lodged information of her change of address listing her name as Palermo. The registrar was prompted to purge the name of Palermo from the registration list because Palermo refused to change her name, citing Sec. 2-206 which states that

registration of a person shall be purged 90 days after he changes his name or otherwise. Palermo went to court seeking that the interpretation of the said rule be declared erroneous or the statute be declared unconstitutional, it being in violation of the 14th

amendment due process and equal protection clause. Held: The use of a husband’s name is customary and as such, the common law does not compel women to use their husband’s name. In the past, the husband’s name was used to indicate the marital status of a woman. A person has a common right to adopt any name he or she wants to be known with. The use of husband’s name was mainly for indicating marital status. It was more by practice rather than by law.

Private Contracts: When Valid, When Void?

In Re: SantiagoFacts: This is an administrative case concerning Atty. Roque Santiago who executed a document wherein it was stipulated that Ernesto Baniquit and his wife Soledad Colores were from then on, separated, allowing either parties to marry again without danger of becoming subject to any legal action from either of the two parties. With this, Baniquit got married to Trinidad Aurelio. Santiago’s mistake, according to him, was due mainly to his idea that a seven-year separation will allow for such action. In finding out his mistake, he called on Baniquit who at that time, was already married to someone else. Held: The advice given and the document tended to subvert the vital foundation of the family. Marriage, as stated in Article 1 of the Family Code, is not subject to the stipulation.

Selanova vs. MendozaFacts: Judge Alejandro Mendoza prepared and ratified a document extrajudicially liquidating the conjugal partnership of Saturnino Selanova and Avelina Ceriza. It was stipulated in the document that the spouses should withdraw the adultery and concubinage cases each had filed against another. The defendant ratified the document with the assurance that the spouses would ask the Court of First Instance to approve the agreement. According to the respondent, the basis of the decision was Part 4 of Article 191 of the Civil Code which stated that husband and wife may agree upon the dissolution of marriage subject to judicial approval. Held: Respondent’s action was void as it violated Article 221 of the Civil Code which states that contracts and any extrajudicial agreements are void. Judicial sanction for annulment of marriage should have been secured before hand.

10

Requisites of Marriage

Essential Requisites of Marriage

FC Article 2: Essential Requisites of marriage are—1. Legal capacity of contracting parties who must be

male or female. 2. Consent that is freely given in the presence of a

solemnizing officer authorized by the state to conduct such marriage.

Legal Capacity of Male and Female

Jones vs. HallahanFacts: Two women appealed the decision of the Circuit Court which held that both of them cannot marry one another. Plaintiffs claim that the decision abridges the Equal Protection clause and Due Process clause of the fourteenth amendment. Held: Marriage, in many widely circulated dictionaries, are defined as a “union between man and woman,” and there is no authority to the contrary. The plaintiffs were not being prevented by the statutory provision to marry. Rather, they were being prevented by themselves.

Goodridge vs. Department of Public healthFacts: In March and April of 2001, each of the plaintiff couples attempted to obtain the marriage license from their respective city or town clerk’s office. After their requirements had been completed, the clerk in each case refused to accept the notice of intention to marry or denied a marriage license on the ground that Massachusetts does not recognize same-sex marriages. Plaintiffs filed a suit alleging that exclusion of same-sex couples from access to marriage license and civil marriage and its benefits is in violation of Massachusetts law. Held: Without the right to marry or the right to choose to marry, one is excluded from the full range of human experience and denied full protection of the laws for one’s commitment to lasting human relationships. Held: Defense of procreation is not sufficient because same-sex couples are still capable of procreation although their methods may not be traditional. Likewise, these couples are capable of rearing children in such a setting, affirmed by the Massachusetts law which allows adoption for same-sex couples. Same-sex couples should be afforded the same benefits as opposite-sex couples by virtue of the Equal Protection and Due Process clause of the 14th amendment.

Baker vs. StateFacts: Same-sex couples brought action against the State, city and town seeking declaratory judgment that the refusal to issue them marriage licenses violated the common benefits clause of the Vermont constitution. Plaintiffs claim that

denial of marriage license was tantamount to denial of legal benefits and protections of marital relations. Held: Government is established for the common benefit of the people and community as a whole. The state interests in preventing the marriage of same-sex couples which are: Procreation and uniformity with other states, while valid, should not be employed through a means that would prevent same-sex couples from acquiring the benefits inherent to married life.

Defense of Marriage Act- Defense of marriage as an institution, as upheld by 37 states in the United States

- 4 States have explicitly banned same-sex marriages.- Vermont and Massachusetts have come up with

legislation that would allow same-sex couples to enjoy the benefits that opposite-sex married couples enjoy. In Vermont, it is done through a civil union, in Massachusetts, same-sex marriage is now allowed.

Consent Freely Given

FC Article 4: Marriage is rendered void in the absence of any of the essential requisites (stated in Article 2 of FC). If there is any irregularity in the formal requisites, the validity shall not be affect validity but either or both parties are civilly, criminally and administratively liable.

FC Article 45: (page 8)

People vs. Felipe SantiagoFacts: Felipe Santiago raped Felicita Masilang, 18 years old, a few paces from Manila North Road. After the deed was done, defendant brought the girl to the house of Agaton Santiago, the defendant’s uncle, who later found a protestant minister who administered the marriage of Santiago to Masilang. After the marriage, the victim was given a few pesos and was told to leave. Held: The marriage is void first, because the victim did not have his father’s consent to marry and second, because the victim was under duress and was thereby incapable of giving her consent freely. Also, Felipe Santiago did not really intend to marry Felicita Masilang. He only did so to escape criminal liability. As such, the marriage is void because the consent of Santiago is not freely given. The consent referred to here is not the consent of Felicita but that of Felipe who had no intention of marrying Felicita.

Buccat vs. Mangonon de Buccat

Eigenmann vs. GuerraFacts: Petition was instituted by Eduardo Eigenmann to annul his marriage to Maryden Guerra on the grounds that he was a minor who needed consent from his parents when he married (16-20 years old) and such consent was not given. He alleged that he was threatened and coerced into the marriage and that the solemnizing officer who administered the

11

marriage license was not authorized thereby rendering the said license void ab initio. Held: The marriage license confirmed that plaintiff misrepresented himself to be of legal age there for he is subject to an estoppel preventing himself to invoke minority. (this is as to the needed consent and not the lack of minimum age) The said threat was not sufficient to hold that he was coerced into consenting to the marriage because it was not really threatening. Lastly, marriages solemnized by a license obtained wrongfully, merely renders the marriage to be irregular and is not null, void or voidable.

Formal Requisites- External to the partiesFormal Requisites of Marriage

FC Article 3: Formal Requisites of Marriage—1. Authority of the solemnizing officer,2. Valid marriage license except in cases provided,3. Marriage ceremony with the appearance of

contracting parties before a solemnizing officer,4. Two witnesses that are of legal age,5. Declaration that they take each other as husband

and wife.

Authority of the Solemnizing Officer

FC Article 7: Marriage may be solemnized by:1. Any incumbent member of the judiciary within the

court’s jurisdiction;2. Any priest, rabbi, imam or minister of any church or

religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect;

3. Any ship captain or airplane chief only in the cases mentioned in Article 31;

4. Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in cases mentioned in Article 32;

5. Any consul-general, consul or vice-consul in the case provided in Article 10.

- Without registration of the solemnizing officer with the office of the Civil Registrar the marriage is void. The same is true if the solemnizing priest s not authorized by his church.

- A resulting irregularity that will not affect the validity of the marriage is one where there is mistake of fact and not mistake of law.

- Ignorantia legis non excusatFC Article 10: Marriages between Filipino citizens abroad may be solemnized by a consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by the consular official.

FC Article 31: A marriage in articulo mortis* between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight but also during stopovers at ports of call.*At the point of death

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

FC Article 4: The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in article 35 a.

A defect in any of the essential requisites shall render the marriage voidable as provided in article 45.

An irregularity in the formal requisites shall not affect the validity of the marriage but the party or the parties responsible for the irregularity shall be civilly, criminally or administratively liable.

FC Article 35 (2): The following marriages shall be void from the beginning:(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in god faith that the solemnizing officer had legal authority to do so.

CC Article 3: Ignorance of the law excuses no one from compliance therewith.

Navarro vs. DomagtoyFacts: This is an administrative case filed by Rodolfo G. Navarro against Hernando C. Domagtoy who allegedly solemnized the marriage between Gaspar A. Tagadan and Arlyn Borja despite knowledge that the groom was only separated with his former wife who was already absent for seven years. Also, the respondent judge also solemnized the marriage of Floriano Sumaylo and Gemma del Rosario outside the jurisdiction of the respondent. Held: On the second marriage, there is a resulting irregularity because marriage may only be conducted elsewhere only if there is a written request coming from both parties. In the case at hand, the request only came from one party. Judges may only officiate weddings within their jurisdiction otherwise there will be an irregularity with the formal requisites. Article 8 states that marriages may be conducted elsewhere provided that there is written request coming from both parties to the marriage.

Aranes vs. OccianoMercidita Aranes charged presiding judge Salvador Occiano of gross ignorance of the law for solemnizing her marriage with her husband without a license and outside his jurisdiction. Respondent judge claims that he agreed to solemnizing the marriage provided that the license will be delivered to him on the same day however, no such license ever came. No record of the application for a marriage license because it was denied when the husband failed to present the death certificate of his first wife. Held: Respondent judge is liable for failure to ascertain the existence of a marriage license. Presenting a marriage license after the solemnization of the wedding does not, in any

12

way validate the marriage. Also, under BP 129, the authority of the judges of inferior courts to solemnize marriage is confined to their territorial jurisdiction. The authority of the judge to solemnize a marriage is derived from the marriage license.

Marriage License

FC Article 9: A marriage license shall be issued by the local registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with chapter 2 of this Title.

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

PD965: A decree requiring applicants for marriage licenses to receive instructions on family planning and responsible parenthood.

Republic of the Philippines vs. CA and CastroFacts: Angelina M. Castro filed a petition for a judicial declaration of nullity of her marriage to Edwin F. Cardinas which was granted by the Court of Appeals. Then petitioner Castro was separated after four months of marriage with Cardinas. As such, Castro sought for the nullity of her marriage before she left for the US. Plaintiff Republic of the Philippines challenged the decision of the appellate court because Castro’s claim that there was no marriage license was only supported by a “due search and inability to find” certification issued by the local civil registrar of Pasig and Caustro’s own testimony. Held: No marriage shall be solemnized without a marriage license otherwise it will be rendered void ab initio. The certification of “due search and inability to find” is sufficient to hold that no proof of license exists and the testimony is sufficient because the marriage was a secret marriage and under the circumstances it is understandable that there can be no other witness.

Moreno vs. BernabeFacts: Marilou Nama Moreno filed the complaint against Judge Jose C. Bernabe for grave misconduct and gross ignorance of the law. According to the complainant, respondent judge solemnized her marriage with Marcelo Moreno, assured that the contract will be released after 10 days. Respondent judge claims that the failure to produce the contract was due to the failure of the Local Registrar of Pasig to release the marriage license. He was assured, when he solemnized the marriage, that the license was forthcoming as such, he agreed to conduct the ceremony but

reminded the plaintiff and her husband of the consequences of conducting the ceremony without a marriage license.Held: Marriage ceremonies, absent of a marriage license, are void ab initio.

People vs. BorromeoFacts: Defendant Elias Borromeo appealed his conviction of parricide and his sentence of reclusion perpetua. On July 3, 1981, defendant killed his wife, Susana Borromeo. He claimed that Susana Borromeo was not his wife because no marriage contract was executed during their marriage. Held: Defendant testified that he was indeed, married to Susana Borromeo. Nevertheless, had there been an actual absence of a marriage contract, persons living together in apparent matrimony are presumed to be married unless evidence is presented to show otherwise. “Such is the common order of society. If parties were not what they hold themselves to be, they will be living in constant violation of the law.”

Seguisabal vs. CabreraFacts: Andon Seguisabal charged Judge Jose Cabrera of gross misconduct and grave ignorance of the law for solemnizing the marriage of Jaime Sayson and Marlyn Jagonoy without the requisite marriage license. The respondent was also said to have failed to transmit a copy of the marriage contract he signed to the Office of the Civil Registrar of Toledo City within the required 15 days. The Respondent judge contended that he agreed to solemnize the marriage of the two parties with the agreement that the marriage license will be given in the afternoon, which the couple failed to do. Years later when Marlyn Jagonoy returned asking for the marriage contract so that she can claim the pension of her deceased husband, respondent judge issued a marriage contract despite of the knowledge that there is still no marriage license as the deceased and his widow failed to attend a family planning session. Held: Cabrera was expected to follow the dictates of his profession. His decision to commit an act outside the boundaries of the law cannot be justified by good faith. Marriages solemnized without a marriage license is void ab initio.

Ceremony

FC Article 6: No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer.

13

In case of marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fat shall be attested by the solemnizing officer.

Requisites of Marriage Ceremony:- For both parties to appear personally before the

solemnizing officer;- That there is presence of not less than two witnesses

of legal age;- That both party take each other as husband and wife

FC Article 8: The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case, the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. - Whatever venue is chosen, it must be within the jurisdiction of the solemnizing officer.

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

- Applicable when one of the parties is handicapped

FC Article 29: The solemnizing officer shall state in an affidavit the executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to marriage.

FC Article22: The marriage certificate shall state:1. Full name, sec and age;2. Citizenship, religion and habitual residence;3. the date and precise time of the celebration;4. That the proper marriage license has been issued

according to law;5. That either or both of the contracting parties have

secured the parental consent (if it applies);6. That either or both of the contracting parties have

complied with the legal requirement regarding parental advice (where it applies);

7. That the parties have entered into a marriage settlement, if any, attaching a copy thereof.

FC Article 23: It is the duty of the solemnizing officer to furnish either of the contracting parties the original of the marriage certificate and to send the duplicate and triplicate copies not later that fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting the copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license, and the affidavit of the contracting party regarding the solemnization of the marriage in another place.

FC Article 24: It shall be the duty of the local civil registrar to prepare the documents required and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications

for marriage licenses shall be exempt from documentary stamp tax.

Requisites of a Marriage Ceremony

Martinez vs. TanFacts: Rosalia Martinez and Angel Tan signed a petition directed to the Justice of Peace stating therein their agreement to contract marriage. The document was signed by the defendant and plaintiff and the Justice of Peace and two witnesses namely Zacharias Esmero and Pacita Ballori. A certificate of marriage was likewise signed by the Justice and the witnesses attesting that a marriage did ensue. Plaintiff alleged that she did not attend the ceremony and that she only signed it. Rosario Bayot attested that on the day of the marriage, the plaintiff never left her company. Pacita Ballori attested otherwise. Apart from that, several letters from the plaintiff for the defendant prove that plaintiff indeed intended to marry the defendant. Held: The documents signed were sufficient to prove that what took place before the Justice of Peace was legal and the ceremony amounted to a wedding.

Melecio Madridejo vs. Gonzalo de LeonFacts: Eulogio de Leon and Flaviana Perez had one child—Domingo de Leon. In the year 1915, Eulogio died leaving Flaviana with Domingo. Flaviana later lived with Pedro Madridejo and bore a child—Melecio. On June 8, 1920, Flaviana, knowing that she will die soon, married Pedro. She died the following day. Melecio Madridejo claimed that he is the next of kin of Domingo de Leon who died as well. Defendant claimed that the wedding of Pedro and Flaviana was not valid because the solemnizing officer failed to send a copy of the marriage certificate to the Municipal Secretary. Also, Melecio Madridejo was allegedly not a legitimate child. Held: Forwarding of the marriage certificate is not an essential requisite of the marriage. Failure to do so does not invalidate the marriage. For a subsequent marriage to effectively legitimate a child born out of wedlock, the child must be acknowledged by the parents in some public document or be in the uninterrupted possession of the status of a natural child. In the case at hand, Melecio Madridejo was not legitimated. No public document to that effect exists and he was not able to prove that he has been in an uninterrupted status of the natural child.

Presumption of Marriage

CC Article 220: In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their

14

children, and the validity of defense for any member of the family in case of unlawful aggression.RC Section 3 Rule 131: That persons acting as copartners have entered into a contract of copartneship;

1. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

2. That property acquired by a man and a woman who is capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry.

3. That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.

Trinidad vs. CA, Trinidad and TrinidadFacts: Arturio Trinidad, was the son of Inocentes Trinidad and nephew of Lourdes and Felix Trinidad. The three siblings, Inocentes, Lourdes and Felix, inherited a piece of land from their father, Patricio Trinidad. Defendants claimed that the land in question has been in their possession since the death of their father and that Inocentes died in 1941 and not in 1944 as alleged by Arturio. They also contend that Inocentes never fathered a child nor was he ever married. Arturio on the other hand alleged that his father was married to Felicidad Molato, his mother. Several witnesses living within the neighborhood testified to the marriage and the birth of Arturio and that Arturio contrary to the claims of Lourdes and Felix had lived in their house for some time. Relevant public documents valuable as evidence were destroyed during the war. Held: Marriage may be proven by relevant evidences such as: testimony of a witness to the matrimony, public and open cohabitation, birth and baptismal certificate signed by the couple or a mention of the marriage in other public documents. Two witnesses attested that the couple cohabited and that Arturio was their son. As proof of filiation with Felix and Lourdes, two family pictures were shown where Arturio was in the company of Lourdes and Felix and the witnesses likewise attested that Arturio had lived with his aunt and uncle. The preponderance of evidence supported the claims of Arturio.

Vda. De Jacob vs. CA and PilapilFacts: Plaintiff claimed to be the surviving spouse of Dr. Alfredo E. Jacob and appointed special administratix for his estates by virtue of a reconstructed marriage contract recognized by their solemnizing officer who admitted that he lost the marriage contract earlier on. The court of appeals ruled against the plaintiff on the grounds that no copy of the contract was sent and no record of the marriage existed and that Dr.

Alfredo signed the contract with his thumbmark and not with his own name. Lastly, court of appeals stated that the reconstructed marriage contract was signed by Benjamin Molina and not by Jose Centera who the plaintiff said allegedly lost the marriage contract. Held: Dr. Alfredo and Plaintiff Tomasa had lived together for over five years and the deceased signed an affidavit to that effect. According to Article 76 of the Civil Code, no marriage license shall be necessary when a man and a woman who have reached the age of majority have lived together as husband and wife for at least five years. Also, failure to send a copy of the marriage certificate for record purposes does not invalidate the marriage. It was not the petitioner’s duty to ensure that the copy reached the civil registrar’s office. Secondary evidence proved that there was a ceremony. The solemnizing officer and Adela Pilapil attested to that effect. Also the name of the couple was recorded in the Book of marriages.

- In the absence of a marriage contract, there should be proof of due execution which can be given by witnesses and proof of loss of marriage certificate before the reconstructed certificate may be admitted

15

Void MarriagesFC Article 4: The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35. A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites of shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.

FC Article 35: The following marriages shall be void from the beginning:

1. Those contracted by any party below eighteen years of age, even with the consent of parents or guardians;

2. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

3. Those solemnized without a license, except those covered by the preceding chapter;

4. Those bigamous or polygamous marriages not falling under Article 41;

5. Those contracted through mistake of one contracting party as to the identity of the other;

6. Those subsequent marriages that are void under Article 53.

- In ordinary contracts (1) the child will not be emancipated from parental authority. In marriage, the child will be emancipated.

- If it is a mistake of fact, the marriage is valid. If it is a mistake of law, the marriage is void.

- Paragraph 5 refers to physical mistake in identity. Other fraudulent misrepresentation would not apply.

FC Article 36: A marriage contracted by any party who, at the time of the celebration was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after solemnization. -Psychological incapacity to comply is different from inability to understand because the latter is a vice of consent, without which, an essential requisite of marriage is lacking.

Reasons for adopting psychological incapacity as a ground for declaration of nullity:

- Substitute for divorce- Solution of church-annulled marriages- To give remedy to the parties imprisoned by

marriage.

Psychological incapacity vs. Vice of consent- a person may fully agree but may not understand the

obligations of marriage.- Psychological incapacity is not a vice of consent but

there is a lack of legal capacity, an essential requisite of marriage.

Psychological Incapacity vs. Insanity- Insanity has varying degree;- Insanity is curable- There are lucid intervals in insanity- Insanity is a ground for annulment in other countries

Note: Psychological incapacity was not defined using examples to avoid ejusdem generis (exclusive enumeration) which might limit the applicability of the provision. It is therefore judged according to the facts of the case.

- Psychological incapacity should exist at the time of the marriage.

- Psychological incapacity is restricted to disorders demonstrative of the utter sensitivity or inability to give meaning and significance to the marriage.

Examples of psychological incapacity:1. Homosexuality;2. Satryiasis or Nymphomania;3. Epilepsy with permanently recurring maladaptive

manifestationsl4. Extremely low intelligencel5. Habitual Alcoholism;6. Criminality

Manifestations of psychological incapacity:- Refusal of wife to dwell with the husband after

marriage;- Affliction which makes common life unbearable;- Sociopathic anomalies on husband’s part

Santos vs. Bedia-SantosFacts: Louel Santos who was married to Julia Bedia-Santos wishes to annul his marriage based on Article 36 of the Family Code. Respondent has, for the last seven years since filing for the annulment, resided in the United States and has contacted the petitioner only twice. Held: Psychological incapacity refers to the mental, not physical incapacity. It must be characterized by gravity, juridical antecedence and incurability for it to be considered a psychological incapacity. Psychological incapacity is not a vice of consent. A person may have given his or her consent freely without understanding the obligations of the contract. Without consent, a marriage is void ab initio. Without the ability to understand the nature of the contract, the marriage is merely voidable.

Republic of the Philippines vs. MolinaFacts: Respondent alleged that her husband Reynaldo Molina was psychologically incapacitated because he showed signs of immaturity, irresponsibility and dependence. She also averred that her husband was never honest.

16

The Court of Appeals and Regional Trial Court upheld that the marriage was indeed, void. Held: Psychological incapacity should refer to a mental and not physical incapacity. It is confined to the most serious personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. It is not enough that the parties failed to meet their responsibilities. It is essential that they must be shown as incapable of doing so.

Molina Guidelines in Applying Article 361. The burden of proof to show the nullity of the

marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.

2. The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts and (d) clearly explained in the decision. The person alleged to be incapacitated must be psychologically ill to the extent that the person could not have known the obligations he was assuming or knowing them could not have given a valid assumption thereof.

3. The incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show that the illness was existing when the parties exchanged vows.

4. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or relative only in regard to the other spouse. Such incapacity must also be relevant to the assumption of marriage obligations.

5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. The illness must be shown as downright inability or incapacity.

6. The essential marital obligations are:a. The husband and wife are obligated to live

together, observe mutual love, respect and fidelity, and render mutual help and support (FC Article 68).

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

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

d. The management of the household shall be the right and duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70 (FC Article 71).

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

Apiag vs. CanteroFacts: Maria Apiag filed an administrative case against her husband, respondent judge, Esmeraldo G. Cantero. The Court of Appeals decided that the respondent acted in grave misconduct. The plaintiff and respondent were married and petitioner bore 2 children by that marriage. After the second child was born, respondent judge left for no reason. Plaintiffs, through their counsel asked respondent for support and for the children to be declared legal heirs. Complainants subsequently learned that respondent has contracted another marriage with whom he had 5 children. Respondent misrepresented himself in his declaration of assets and liabilities by putting the name of the second wife on the said statement. He contended that the first marriage was void ab initio because he and his first wife never cohabited and he was forced into the marriage. He added that he and the petitioners have settled amicably and he has agreed to give the children ¼ of his retirement benefits.Held: While he did not act in grave misconduct, he acted in impropriety when he failed and refused to attend to the needs of his children. Although it is undisputed that the judge did not obtain a judicial declaration of nullity of his first marriage, pursuant to the jurisprudence prevailing at the time of the second marriage, it has been established that no such declaration was necessary.

Choa vs. ChoaFacts: Respondent Alfonso Choa filed a complaint for the annulment of his marriage to petitioner Leni Choa on the grounds of psychological incapacity. Petitioner filed a demurrer of evidence (an objection or exception by one of the parties in an action at law to the effect that the evidence which the adversary produced is insufficient in point of law to make out a case and sustain the issue). The demurrer of evidence was dismissed by the appellate court which upheld that the claims of Alfonso Choa—that her wife had filed several lawsuits against him indicating psychological incapacity and that his wife was immature, carefree and had no intentions of procreative sexuality—as sufficient evidence. Held: Psychological incapacity must be characterized by gravity, juridical antecedence and incurability. The testimony of the expert doctor and the respondent only showed that the two cannot get along with each other.

Tsoi vs. CAFacts: Respondent Gina Lao Tsoi filed for annulment of her marriage to petitioner Chi Ming Tsoi on the ground of psychological incapacity.

17

Respondent alleged that since their marriage in May 22, 1988 until March 15, 1989, the couple has not consummated their marriage. Defendant contended that it was the wife’s fault that their marriage was not consummated. A physician examined both plaintiff and defendant and attested that neither of them had any physical problem. Defendant alleged that the wife was afraid to consummate the marriage and afraid that she would have to return the jewelry given to her. Held: Whether or not it was the husband who refused to consummate the marriage is immaterial. The fact still stands that it has not been consummated. There may be physical and not psychological reasons as to why the marriage should not be annulled but the evidence to that effect was not presented. Catholic marriage tribunals attribute the causes to psychological incapacity than stubborn refusal. The natural order between spouses is sexual intimacy.

Antonio vs. Reyes Facts: Petitioner filed a petition for the declaration of his marriage to respondent as null and void on the grounds of psychological incapacity as manifested by several instances of lying and concealment of an illegitimate child by Respondent Ivonne Reyes. Petitioner alleged that respondent fabricated stories which bordered on the ridiculous. Held: Marriage was void by virtue of the Molina guidelines, fulfilled by the Petitioner.

FC Article 37: Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties is legitimate or illegitimate.

1. Between ascendants and descendants of any degree and

2. Between brothers and sisters, whether of full or half blood.

FC Article 38: The following marriages shall be void from the beginning for reasons of public policy:

1. Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;

2. Between step-parents and step-children;3. Between parents-in-law and children-in-law;4. Between the adopting parent and the adopted child;5. Between the surviving spouse of the adopting parent

and the adopted child;6. Between the surviving spouse of the adopted child

and the adopter;7. Between an adopted child and a legitimate child of

the adopter;8. Between adopted children of the same adopter; and9. Between parties where one, with the intention to

marry the other, killed that other person’s spouse or his or her own spouse.

FC Article 39: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. However, in the case of marriages celebrated before the effectivity of this code and falling under Article 36, such action or defense shall prescribe in ten years after this code shall have taken effect.

FC Article 40: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.- Final judgment is needed to avoid confusion because one of the parties may contract another marriage which would be bigamous and therefore void during the pendency of the trial for the other marriage.

FC Article 41: A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four* consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

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

RA 8533

CC Article 390: After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purposes of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be open.

CC Article 391: The following shall be presumed dead for all purposes, including the division of the estate among the heirs;

1. A person on board a vessel lost during sea voyage, or an airplane which is missing, who has not been heard of for four years since the loss of the vessel or airplane;

2. A person in the armed forces who has taken part in war, and has been missing for four years;

3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.

People vs. MendozaFacts: Appellant was married to Jovita de Asis on August 5, 1936. On May 14, 1941, appellant married Olga Lema. On February 2, 1943, the first wife of appellant died. On August 19, 1949, appellant married one Carmencita Panlilio. Appellant was then charged with bigamy but he contended that his marriage to Olga Lema was void ab initio and therefore non-existent. In that light, he claimed, that his marriage to Carmencita was not bigamous. Held: The marriage law in effect at the time the appellant contracted with his second wife, Olga Lema, states that his marriage to Lema was void ab initio. No judicial decree was necessary to establish its invalidity.

Tolentino vs. Paras

18

Facts: Serafia Tolentino was the wife of the deceased, Amado Tolentino. Petitioner requested the correction of an entry on the death certificate of the deceased which states that the name of his surviving spouse was Maria Clemente. Amado Tolentino married his second wife, Maria Clemente while his first marriage was still in effect. When the deceased was charged with bigamy, he pleaded guilty and served the corresponding sentene. The petition was dismissed by Hon. Edgardo Paras on grounds that the issue was a marital relationship, and that the court has no jurisdiction.Held: The petition was meritorious. The court had jurisdiction because the wife was, initially, seeking a judicial declaration that she was the lawful spouse of the deceased. The plea of guilt of the deceased effectively established that the second marriage was in fact, void ab initio and that the petitioner was the lawful spouse.

Wiegel vs. Sempio-DiyLilia Wiegel appealed for the reversal of the decision of respondent judge, Sempio-Diy because, in the petition for the declaration of nullity of marriage filed by Karl Heinz Wiegel against petitioner, respondent judge ruled against the presentation of evidence. When petitioner was married to the plaintiff, she had a previous existing marriage. Petitioner claimed that the first marriage was void ab initio because she was forced into marrying her first husband. Held: There was no need to present evidence because if there had been, in fact, intimidation during the first marriage, the said marriage would have been rendered voidable and not void. Had the marriage been void, a judicial declaration would still be necessary.

Terre vs. TerreFacts: Petitioner charged Atty Jordan Terre with gross immoral conduct for contracting a second marriage while he has a subsisting marriage. The petitioner alleged that while she was still in her previous marriage with her first cousin, she was courted by defendant and was advised that she was free to contract a second marriage because her first marriage was void. Petitioner took the advise and married herein respondent but, after a few years, the respondent took off. Later the petitioner found out that respondent had contracted another marriage.Held: A judicial declaration is necessary to determine whether a person is legally free to contract a second marriage. Without such declaration, the subsequently existing marriage is sustained.

Atienza vs. Brillantes

Facts: Complainant charged respondent Judge Fransisco Brillantes with gross immoral conduct after having found said respondent sleeping in his own bed, apparently cohabiting with his wife. Complainant left his wife and kids. Complainant alleged that the said judge was, at that time, married to one Zenaida Ongkiko with whom he had 5 children. Respondent denied the allegation saying that his marriage with Ongkiko was void ab initio because it was solemnized without a marriage license. Respondent likewise argued that Article 40 of the family code was not in effect when his first marriage took place. Held: Judicial declaration of nullity of a previous marriage is needed for purposes of remarriage. The Family Code can be applied retroactively so long as vested rights will not be impaired by its application.

Borja-Manzano vs. SanchezFacts: Complainant avers that she is the lawful wife of the late David Manzano. Her husband contracted another marriage while the first one was still in effect, solemnized by herein respondent judge. Respondent contends that he did not know that the two were only legally separated and that all he knew was the two had been cohabiting for seven years. He cited Article 34 which states that no license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least 5 years. Held: The requisite of Article 34 is that there is no legal impediment between the parties. The said article is merely a ground for exemption for marriage license. The judge knew of the subsisting marriage as it was stated in the marriage certificate and in the affidavit signed by the parties.

Domingo vs. Court of AppealsFacts: Delia Soledad Domingo sought the judicial declaration of nullity of marriage and separation of property against petitioner Roberto Domingo on the grounds that the petitioner had a valid and existing marriage with one Emerlinda dela Paz. The first wife sued petitioner for bigamy. Respondent claimed that the petitioner has been dependent on her and since she left to work in Saudi, she has amassed some P350,000 worth of properties which were under the possession and administration of herein petitioner until respondent found out about the first marriage. Petitioner alleged that there was no cause for action because the marriage was void ab initio and judicial declaration of nullity of marriage is only sought for purposes of remarrying and no such intention has been expressed. Held: Although it is stated in the Family Code that judicial declaration is needed for purposes of

19

remarrying, it does not expressly state that it is exclusive for that purpose alone. The Family Code provides that among the effects of the judicial declaration is the immediate separation of property.

Effects of Nullity

FC Article 50: The effects provided for by paragraphs 2, 3, 4, and 5 of Article 43 and Article 44 shall also apply in the proper cases to marriages which are declared void ab initio or annulled by final judgment under Article 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses and the custody and support of the common children, and the delivery of the presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified for the proceedings for liquidation.In the partition, the conjugal dwelling and the log on which it is situated shall be adjudicated in accordance with the provisions of Articles 102 and 129.

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

FC Article 52: The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes shall be recoded in the appropriate civil registry and registries of property; otherwise, the same shall not affect the third persons.

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

FC Article 54: Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be consicered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

Ninal vs. BayadogFacts: Petitioners request the annulment of the marriage of their father to Norma Bayadog. On September 26, 1974, Pepito married Teodulfa. Teodulfa died on April 24, 2985 and, on December 11, 1986, Pepito married Norma Bayadog. The marriage was contracted without a license. Instead, the couple signed an affidavit stating that they had been cohabiting as husband and wife for 5 years. The code in effect during the time of the marriage was the Civil Code.

According to Article 76 of the said code, marriage between a man and a woman who have been living together for more than 5 years no longer requires a marriage license. Pepito died in February of 1997.Held: Marriage of Pepito Ninal Sr. and Norma Bayadog is null and void. It is evident that only 20 months elapsed between the time of the death of the first wife and the marriage with the second wife. Had the two been cohabiting for five years, such cohabitation, and the marriage, was not within the capacity of the deceased. The children do not have standing to cause action but, because the marriage was null and void, it is likewise non-existent.

- For marriages of exceptional character, there should be no legal impediment on the part of either party. The one contracting a marriage should have legal capacity to do so.

20

Voidable Marriages Grounds for AnnulmentFC Article 45: A marriage may be annulled for any of the following causes, existing at the time of the marriage:

1. That the party in whose behalf it is sought to have marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

2. That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

3. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

4. That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

5. That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable;

6. That either party was afflicted with a sexually-transmitted disease found to be serious and appears to be incurable.

Annulment and Legal Separation:- Annulment is caused by some circumstance existing

at the time of the marriage while legal separation arises after the celebration of the marriage;

- Annulment of marriage terminates the marital bond between the parties while legal separation does not;

- Annulment of marriage once final, cannot be set aside so as to restore the marital relation while legal separation may be terminated and marital relations resumed by the reconciliation of the parties.

The presumption of the law is generally in favor of sanity and he who alleges the insanity of another has the burden of proving it. Once general insanity is proved to exist, it is presumed to continue; and if a recovery or a lucid interval is alleged, the burden to prove such is on the person making it.

A marriage may be annulled where one of the parties was so intoxicated he or she had no mental capacity to give valid assent.

For physical incapacity, impotence or sexually transmitted disease to be a ground for annulment the following must concur:1. That it exists at the time of the celebration of the

marriage;2. That it continues to the time when the case for

annulment is being tried;3. That it appears to be incurable,4. That the other contracting party is aware of it.

- In impotence, the person cannot have sex. In sterility, the person cannot procreate.

- Impotence is not a ground for declaration of nullity because the injured spouse may accept the impotence of his or her spouse.FC Article 46: The following shall constitute fraud:

1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

2. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

3. Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage;

4. Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

-A marriage cannot be annulled simply on the ground that the wife concealed the fact that she had been lewd and corrupt and had an illegitimate child prior to the marriage.

FC Article 48: In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecution attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

RPC Article 344: The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders.

Force- Physical injury, violence, irresistible intimidation or threatUndue influence- a person who takes improper use of his power

- The person who can ratify is the injured party;- The injured party can file for annulment within five

years- If the injured party freely cohabited after the

cessation of the ground for annulment (except in impotence and sexually transmitted diseases), he is estopped from annulling the marriage.

RATIFICATION cures the defect of the marriage and it retroacts to the day of the marriage or the day of giving consent.

Katipunan vs. TenorioFacts: Plaintiff Marcos Katipunan brought action against Rita Tenorio seeking the annulment of their marriage. He alleged that the defendant was not of sound mind at the time they contracted marriage. According to the guardian of the defendant, Tenorio only suffered ailment after giving birth to her 4th child. Held: The couple cohabited for seven years and plaintiff admitted that there had been lucid intervals therefore, the marriage cannot be annulled. Insanity has to be a permanent condition. If at the time of the celebration of the marriage there was nothing wrong with the

21

mental health of the other spouse, marriage cannot be annulled.

Aquino vs. DelizoFacts: Petitioner requests the annulment of her marriage on the ground of fraud, claiming that his wife was 4 months pregnant at the time that they were married and the child was that of another man. The appellate court dismissed the petition on the grounds that it was unbelievable that the petitioner was unable to tell if his wife was pregnant. Held: Petition must be granted because pregnancy is hardly noticeable at five months and the wife was plump.

Anaya vs. PalaroanFacts: Defendant Fernando filed an action for annulment on grounds that his consent to the marriage was obtained through force and intimidation. The complaint was dismissed. Herein petitioner then sought the annulment of her marriage to Fernando on the grounds of fraud, saying that her husband concealed the fact that he had marital relations with another woman prior to the marriage. Held: Concealment of premarital relations was not among the kinds of fraud stated in the Civil Code (Family Code). The pertinent provision is not subject to interpretation as it was also expressly stated that “no other misrepresentation or deceit shall constitute fraud.”

Ruiz vs. AtienzsActs: Plaintiff requests the annulment of her marriage on the ground that his consent was given under duress. His wife, whom he had premarital relations, bore a child. When the child was born, the father of his wife allegedly approached him with a knife and in the company of a lawyer. The lawyer threatened his entrance to the bar. Held: Petition cannot be granted because the petitioner had several chances of escape before the marriage and because his wife bore his own child. Where a man marries under threat of or constrain from lawful prosecution for seduction or bastardy, he cannot avoid marriage on the ground of duress. Proof of bodily harm must be sufficiently shown. Threat to obstruct admission to the bar does not constitute duress. Only if the threat is so grave that the person is not acting in his own freewill that a marriage becomes void.

RELUCTANCE vs. VITIATION- In reluctance, the person consents to the marriage

but gives it anyway. - In vitiation, there is an actual, external force

Jimenez vs. Canizares

Facts: Petitioner filed an action to annul his marriage to respondent on the ground that the orifice of the vagina of his wife was too small to allow penetration. For that reason, petitioner has left the conjugal abode. The defendant failed to comply with the order of medical examination and so, the lower court granted the annulment.Held: Presumption will always be in favor of potency. It is understandable that a woman would refuse to subject herself to physical examination. The testimony of one party is not sufficient to annul the marriage because to do so will open the court to cases of collusion between the spouses for the annulment of their marriage.

Sarao vs. GuevaraFacts: On the day of the marriage of the plaintiff and the defendant, the marriage was not consummated because the defendant complained of pains. The defendant was operated on and her uterus and ovaries were surgically removed. The removal rendered the defendant incapable of procreation as such, plaintiff wants his marriage with the respondent annulled. Held: Impotency is not inability to procreate but inability to copulate. Inability to copulate cannot be a ground for annulment and a temporary or occasional incapacity cannot be used as a ground to nullify a marriage.

People vs. Santiago

Suntay vs. Cojuangc-SuntayFacts: Petitioner opposed the petition filed by respondent for the issuance of letters of administration (of the estate of her paternal grandmother) in her favor on the grounds that he was the surviving spouse of the deceased, and that the petitioner and the deceased have been alienated from the family of the respondent. He likewise alleged that respondent was not a legitimate child because the marriage of her parents, Emilio Aguinaldo Suntan (son of petitioner) and Isabenl Cojuangco-Suntay was declared null and void because Emilio was found to be schizophrenic at the time of his marriage. Held: A child born out of a voidable marriage before the decree of annulment is considered a legitimate child.

- Void marriages are deemed never to have taken place at all but the children born of that marriage who are called natural children by legal fiction have the same status, rights and obligations as acknowledged children.

- Voidable marriages are considered valid and produces all it civil effects until it is set aside by final judgment of a competent court in an action for annulment. The annulment fo the marriage dissolves the special contract but the effects of the marriage will not be wiped out completely. Children born of voidable marriages shall be considered legitimate.

22

- To annul means to reduce to nothing. Null and void means something does not exist from the beginning.

Marriage when one spouse is absent

CC Article 83: A marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance unless:

1. The first marriage was annulled or dissolved;2. The first spouse had been absent for seven

consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.

CC Article 85: A marriage may be annulled for any of the following causes, existing at the time of the marriage: (2) In a subsequent marriage under article 83, number 2, that the former husband or wife is believed to be dead was in fact living and the marriage with such former husband or wife was then still in force.

Jones vs. HortiguelaFacts: Petitioner requests that she be declared the sole heir of the intestate estate of Marciana Escano, her mother. Prior to the motion, at the time when petitioner was still a minor, respondent was awarded a fixed rate of P10,000 for the administration of the estate of the deceased. Petitioner alleged that when her mother remarried in May 1927, the judicial declaration of the absence of her father was not yet effective. As such, the marriage of the deceased and the respondent was null and void. Held: Petition denied. Absence of one spouse shall be counted from the last day of communication or from the reception of the last news regarding the absent spouse. In this case, the first spouse was absent for 9 years. Effects of pending action or decree

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

FC Article 50: The effects provided for by paragraphs (2), (3), (4), (5) of the Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of their presumptive legitimes unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance with Articles 102 and 129.

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

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

FC Article 53: Either of the former spouses may marry again after compliance with the requirements. Subsequent marriage shall be null and void.

FC Article 54: Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

CC Article 371: In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may continue employing her former husband’s surname, unless:

1. The court decrees otherwise;2. She or the former husband is married again to

another person.

CC Article 369: Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.

Jurisdiction

Estrellita J. Tamano vs. Hon. Rodolfo OrtizFacts: Petitioner assailed the decision of a lower court which rejected the motion to dismiss she filed against the motion for declaration of nullity filed by private respondent. Private respondent alleged that the marriage of the Petitioner to her husband must be declared null and void on the ground of bigamy. At the time of the marriage of petitioner and her deceased husband, private respondent was still also married with him. Petitioner contended that the Regional Trial Court had no jurisdiction because both the petitioner and the deceased were Muslims. Held: Under the Judiciary Reorganization Act of 1980, Regional Trial Courts have jurisdiction over all actions involving the contract of marriage and

23

marital relations. In this case, both the petitioner and the deceased were married through a civil wedding and whether or not they were likewise married in a Muslim wedding, shari’a courts are still not vested with original and exclusive jurisdiction over marriages married under civil and Muslim laws.

LEGAL SEPARATION Grounds

FC Article 55: A petition for legal separation may be filed on any of the following grounds:

1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

3. Attempt of respondent to corrupt or induce petitioner, a common child, or a child of the petitioner to engage in prostitution, or connivance in such corruption or inducement;

4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

5. Drug addiction or habitual alcoholism of the respondent;

6. Lesbianism or homosexuality of the respondent;7. Contracting of respondent of a subsequent bigamous

marriage, whether in the Philippines or abroad;8. Sexual infidelity or perversion;9. Attempt of the respondent on the life of the

petitioner;10. Abandonment of petitioner by respondent without

justifiable cause for more than one year.For purposes of this Article, the term “child” shall include a child by nature or by adoption.

Violence- must be of a serious degree but does not have to amount to an attempt against the life of the defendant

- The violence must be repeated, to the extent that common life with defendant becomes extremely difficult for the plaintiff.

- Physical violence or moral pressure to compel the plaintiff to change religious or political affiliation need not be repeated. There must be some element of coercion present, whether physical or moral.

- The guilt for the corruption or inducement to prostitution must be on only one spouse.

- The crime for which a spouse may have been convicted may have no bearing at all on the relationship of the husband and wife.

- If drug addiction, habitual alcoholism, lesbianism or homosexuality existed at the time of marriage but were unknown to the other party, they would constitute a ground for annulment of marriage as fraud. If they come to exist after the celebration of the marriage, they become grounds for legal separation.

- Every subsequent marriage, where there is a subsisting prior marriage, should give the other spouse the right to ask for legal separation. This is so because the spouse who has remarried has cohabited with another person.

- Under the Family Code, every act of sexual infidelity by either husband or wife is a ground for legal separation.

- Sexual perversion as a ground for legal separation includes all unusual or abnormal sexual practices which may be offensive to the feelings or sense of decency of either husband or wife. There must also be an element of

24

coercion exercised by the defendant to make the plaintiff submit to the act.

- There is abandonment when one spouse leaves the other without intent to return.

- Attempt on the life must imply that there is intent to kill

- Under Article 101 of the Family Code, “the spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts, shall be prima facie presumed to have no intention of returning to the conjugal dwelling.”

CC Article 97: A petition for legal separation may be filed:1. For adultery on the part of the wife and for

concubinage on the part of the husband as defined in the Penal Code; or

2. An attempt by one spouse against the life of the other.

Adultery- The act of a wife having sexual intercourse with any other man not her husband will constitute adultery.

Concubinage- The act of the husband having sexual intercourse with his wife shall constitute concubinage if:

1. He maintains a mistress in the conjugal dwelling;2. there is sexual intercourse with the other woman

under scandalous circumstances;3. the husband cohabits with another woman other than

his wife in any other place.

Cohabit- to dwell or live together in the same house as husband and wife.

Legal Separation vs. Separation of Property- In legal separation, there is a suspension of

the common marital life, both as to person and property.

- In separation of property, only the property relation is affected and the spouses may continue living together.

- Separation of property can be effected by agreement of the spouses, subject to judicial approval; but a decree of legal separation cannot be rendered upon agreement of the parties.

Legal Separation vs. Separation of Spouses- Legal separation can be effected only by

decree of the court; but the spouses may be separated in fact without any judgment of the court.

People vs. Zapata and BondocFacts: Petitioner husband Andres Bondoc filed a complaint of adultery against his wife, Guadalupe Zapata and her paramour, Dalmacio Bondoc. The two respondents cohabited and had repeated sexual intercourse from 1946 to March 1947. The defendant wife entered a plea of guilty and was sentenced to suffer four months in prison. Respondent Dalmacio Bondoc on the other hand, claimed that he did not know that Guadalupe Zapata was married. On September 1948, petitioner once again filed a complaint of adultery for acts committed from March 1947 to September 1948. Defendant then filed a motion to quash on the ground that they will be twice put

in jeopardy. The motion was granted by the lower court on the ground that adulterous acts must be considered as a continuing offense. Held: The court held that adultery as a crime of result and not of tendency, is consummated at the moment of carnal union. Continuous crimes exist if there is a plurality of acts performed separately during a period of rime, unity of penal provisions violated and unity of criminal intent or purpose. In short, continuous crimes are aimed at committing a single offense. In adultery, each instance of sexual intercourse is a separate crime. Also, the court held that there is no legal provision which bars the filing of as many complaints for adultery as there were adulterous acts committed.

Munoz vs. Del BarrioFacts: Felicidad Munoz and Jose del Barrio quarreled frequently and on those occasions, petitioner complained that the husband maltreated her. In 1947, they separated but on December 1950 and September 1951, the husband once again maltreated petitioner, prompting her to institute an action for legal separation on the ground of attempt to life. Petitioner requested that she be given custody of her children, that whatever will remain of the conjugal property be divided, and the conjugal partnership be dissolved. Held: The Supreme Court affirmed the decision of the lower court. It held that the alleged maltreatment cannot constitute an attempt to life because such has to be characterized by intent to kill which was not sufficiently proven especially since the respondent only used his bare hands. Intent to kill, the court said, must be established with clear and convincing evidence.

Gandionco vs. PenarandaFacts: Respondent judge Hon. Senen C. Penaranda ordered petitioner to pay for the support of private respondent Teresita Gandionco and his child. Private respondent filed a complaint for legal separation against petitioner on the ground of concubinage. Private respondent likewise requested for support and payment of damages. Petitioner Froilan Gandionco claims that the civil action for legal separation and the application for support should be suspended because of the pending criminal case for concubinage filed against him. His contention was based on Article 111 Section 3 of the 1985 Rules on Criminal Procedure which states that a pending civil action instituted for civil liabilities should be suspended until the criminal action arising from the same offense is over.Held: The court held that a civil action for legal separation may proceed ahead of or simultaneously with a criminal action for

25

concubinage because the said civil action is not one to “enforce civil liability” but rather to obtain the right to live separately. Petitioner’s argument that conviction for concubinage must be secured before an action on legal separation can prosper lacks merit because unlike in criminal procedures, proof of concubinage in a civil procedure is based on preponderance of evidence and not proof beyond reasonable doubt.

US vs. McMannFacts: Defendant Robert McMann and one McKay were employed at the Quartermaster’s Department of the Army. While at the place of a certain Moro, Amay Pindolonan asking for matches to light a cigarette, McMann suddenly fired at McKay. McKay was struck in the back of the head and killed instantly. Amay Pindolonan tried to run but McMann also shot him. Defendant claimed that he had no intention to shoot McKay as they were good friends and that the shooting was merely an accident. The defendant also claimed that he was drunk at the time of the incident. Held: To convict a man of the offense being a common drunkard it is necessary to show that he is a habitual drunkard to the point that he has a fixed habit of drunkenness.

Lapus Sy vs. Sy UyFacts:A case for legal separation was filed by Carmel Lapuz Sy against Eufemio Sy Uy on the ground of abandonment. She prayed for the issuance of a decree of legal separation and that her partner be deprived of their conjugal partnership profits. Petitioner also claimed that respondent was cohabiting with a certain Go Hiok. Respondent then filed a counter-dlaim for the declaration of nullity ab initio of his marriage with petitioner on the ground that he had a subsisting marriage with Go Hiok. During the course of the trial, petitioner died and her father, Macario Lapuz, moved to substitute. Eufemio moved to dismiss the substitution because the death of the petitioner should, as he alleged, abate the action for legal separation. Held: The death of one of the parties to the action abates the action itself because action for legal separation is purely personal hence, when one of the parties is dead, there is no longer a need for the decree. Conjugal property are likewise not assignable or transmissible therefore, it doesn not warrant a continuation of the action through substitution.

Dela Cruz vs. Dela CruzFacts: Estrella dela Cruz filed a complaint against her husband alleging that the latter has abandoned their family and has not slept or visited the conjugal dwelling since 1955; that

defendant was mismanaging their conjugal partnership properties and as such has abused his powers of administration and that defendant had a concubine named Nenita Hernandez. Petitioner then asked for the separation of their property, a monthly support of P2,500 during the pendency of the action and payment of P20,000 in attorney’s fees. Defendant contended that he did not abandon his family and has not failed to give them a monthly allowance of around P1,500. He stated that he is merely separated from his wife because he cannot concentrate on their business but he never failed to visit his family. Petitioner allegedly played mahjong often while respondent consistently applied his industry so that their business will grow. Held: The court held that abandonment must be real abandonment and not mere separation. It must not only be physical estrangement. “Abandon” in ordinary sense means to forsake completely with intent never again to resume or claim one’s rights or interests. There must therefore be absolute cessation of marital relations, duties and rights with the intention of perpetual separation.

Defenses

FC Article 56: The petition for legal separation shall be denied on any of the following grounds:

1. Where the aggrieved party has condoned the offense or act complained of;

2. Where the aggrieved party has consented to the commission of the offense or act complained of;

3. Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

4. Where both parties have given ground for legal separation;

5. Where there is collusion between the parties to obtain the decree of legal separation; or

6. Where the action is barred by prescription.

- Condonation is the forgiveness of a marital offense constituting a ground for legal separation, and bars the right to legal separation. It may be expressed, in the sense that it is in writing or implied as inferred from the action of the injured party.

- Where a party has clear and convincing knowledge of the offense and then deliberately and willfully cohabits or has sexual intercourse with the offender, he or she thereby impliedly pardoned the offender’s act.

- Consent is agreement or conformity in advance of the commission of the act which would be a ground for legal separation.

- Connivance implies agreement, express or implied, by both spouses.

- A husband who actively connives in the adultery of his wife by procuring her to be lured into the commission of the act will very generally be presumed to have consented to the adultery and will be denied legal separation on that ground.

- A husband must not actively participate in preparations for the suspected misconduct by providing opportunity for the wrongdoing.

26

- Collusion is the agreement between husband and wife for one of them to commit or to appear to commit or presented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain legal separation.

People vs. Sensano and RamosFacts: After the birth of the first child of complainant Mariano Ventura and respondent Ursula Sensano, complainant left for Cagayan de Oro. Complainant did not write, call or send anything in form of support for three years. Respondent then cohabited with Marcelo Ramos with the belief that her husband will not return again. Complainant returned and filed a complaint of adultery against respondents. The court held in favor of the plaintiff but opined that the plaintiff treated his family with cruelty in abandoning them. After sentence, accused wife left her paramour and begged for the forgiveness of plaintiff but she was turned away. She then went back to Marcelo Ramos. Plaintiff then left for Hawaii and upon his return after seven years, he once again filed a charge of adultery.Held: The court held that under Article 34 of the RPC, the offended party cannot file a complaint of adultery if he consented to it. The court was of the belief that complainants action of turning away the defendant constituted a consent and as such he estopped from filing a case.

-Constructive Abandonment- The injured party leaves the wife or the spouse refuses the re-entry of the offending spouse.

De Ocampo vs. FlorencianoFacts: Petitioner Jose de Ocampo filed a complaint of adultery against his wife but was denied by the Court of First Instance. Through several testimonies, it was found that in March 1951, defendant maintained illicit relations with one Jose Arcalas. After plaintiff found out, defendant was sent to Manila to study wherein she had several illicit relations with other men. On June 1955, plaintiff found his wife in the act of sexual intercourse with one Nelson Orzame. Plaintiff then and there told his wife of his intention of filing for legal separation. The Court of Appeals held that the time for filing a charge of adultery on the first case had prescribed. Also, on the second case, CA held that they cannot render a decree of separation on the ground of confession of judgment. Held: The court held that the “confession of judgment”--which happens when a defendant confesses in court the right of plaintiff to his demand, did not occur because such confession happened outside of court. Had there been a confession of judgment, the decree should still be granted since there was a preponderance of

evidence as provided by the plaintiff. If the court will not allow separation despite of the evidence, any defendant who opposes separation will merely confess in court.

Sargent vs. SargentFacts: Petitioner Donald Sargent charged his wife, respondent Frances L. Sargent with adultery alleging that defendant wife had illicit relations with Charles Simmons, a black man and the couple’s driver. Petitioner alleged that defendant wife contracted gonorrhea from the illicit relations. Petitioner then hired detectives to prove the said illicit relations, and said detectives testified along with other servants, all of whom were employed by petitioner. The detectives in one instance shut the door of the room of respondent wife while respondent Charles Simmons was inside to make it appear as though they were having illicit relations. Held: The court held in favor of the defendant. The detectives surveilled Mrs. Sargent for over seven weeks but no solid evidence of the alleged adultery was procured. Mr. Sargent also appeared to have connived with the detectives to show that his wife was indeed having sexual relations. Where the husband employs detectives to get evidence of his wife’s adultery, but the adultery is brought about by the detective himself, legal separation can be denied on the ground of connivance.

Brown vs. YambaoFacts: William H. Brown filed an action to obtain legal separation against his wife, Juanita Yambao. He found out that his wife has adulterous relations with one Carlos Feld at the time when petitioner was interred by the Japanese invaders. He discovered the said relation when in 1945, his wife begot a child. A document was executed for the liquidation of their conjugal partnership property and as such, complainant wants confirmation of liquidation, custody of children and the disqualification of defendant from succession. In the cross examination of petitioner it was found that he was also cohabiting with another woman and had a child with that woman. Held: The court held that the misconduct of petitioner barred him from obtaining legal separation and in this case, the misconduct and failure of the wife to institute action against petitioner’s misconduct constituted circumstantial evidence of collusion.

Willan vs. WillanFacts: Husband appeals the decision by court to deny his petition for the dissolution of his marriage on the ground that he condoned the cruelty of his wife. Petitioner alleged that his wife repeatedly assaulted him, was habitually

27

offensive and frequently demanded to have sexual intercourse with him. Respondent allegedly resorted to violence and pestering, forcing complainant to agree to sexual intercourse. Solicitors have allegedly written the wife regarding the matter but to no avail. The night before leaving the conjugal dwelling, petitioner and respondent once again had sexual intercourse. Held: The court held in favor of the defendant as they found it impossible that a man may have sexual relations and not condone the said relations. Unwillingness, the court said, is not the same as involuntariness.

Bugayong vs. GinezFacts: After their marriage, petitioner Benjamin Bugayong and Defendant Leonila Ginez agreed that defendant would stay with petitioner’s sisters while petitioner worked in the United States as a serviceman. For some time, defendant lived with petitioner’s sisters but she eventually left to live with her mother and then moved to Dagupan to study. Petitioner received letters from his sister-in-law that defendant was having adulterous relations and petitioner alleged that defendant herself wrote him that she was kissed by another man. When petitioner returned, they lived together for two nights and one day. On the second day, when petitioner asked the defendant if there was any truth to the allegations of adultery, defendant did not answer but instead, left. The petition was dismissed by the lower court on the ground that petitioner had condoned the said illicit relations of his wife. Held: The petitioner, having slept with the defendant for two nights, has condoned the adulterous relations. Any cohabitation with the guilty party, after the commission of the offense, and with knowledge or belief is considered conclusive evidence of condonation.

Matubis vs. PraxedesFacts: Soccoro Matubis filed a complaint for legal separation alleging that Zoilo Praxedes had abandoned her and was guilty of concubinage. According to her testimony, barely a year after their marriage, plaintiff and defendant agreed to live separately after failing to agree on where they should live as husband and wife. They entered into an agreement which stipulated the conditions and provisions for their de facto separation. In 1955, defendant began cohabiting with another woman and had another child by her. Held: The time for instituting action has prescribed. The stipulations in the agreement which stated that both spouses relinquished their rights as husband and wife, and was free to get

any mate and live with him or her as husband and wife, constituted consent and condonation.

When to File/ Try Actions

FC Article 57: An action for legal separation shall be filed within five years from the time of the occurrence of the cause.

FC Article 58: An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. - If the ground for legal separation is violence against women, there should be no effort to compromise.

FC Article 59: No legal separation may be decreed unless the Court has taken steps towards the reconciliation of the spouses and is fully satisfied, despite such effort, that reconciliation is highly improbable.

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

Contreras vs. MacaraigFacts: Elena Contreras appealed the decision of the Juvenile and Domestic Relations court of Manila which dismissed her complaint of adultery against Cesar J. Macaraig on the ground that the time for filing an action has prescribed. In 1961, defendant met Lily Ann Alacala and had started to come home late and be away often. In September 1962, Avelino Lubos, the family driver, told Elena that her husband was living with Alcala. When defendant came home in October, plaintiff did not verify the report so that defendant will not get angry. In April 1963, plaintiff once again heard rumors of the alleged misconduct of her husband. It was only upon hearing reports that Lily Ann Alcala had given birth did plaintiff sent Mrs. Felicisima Antioquo to investigate. The latter confirmed on October 1963 that a child had been born by Alcala, bearing the surname of defendant. Plaintiff, through her father and sister-in-law, tried to convince the defendant to come back but defendant told her that he can no longer leave Lily Ann. The lower court held that the word “cognizant” does not connote the date when proof was sufficient because the time indicated by the code would have been rendered meaningless as all one would need to do is fix the date. Held: The court held that plaintiff had reason not to file an action because she had hoped that defendant would return. The only time that defendant therefore that plaintiff became cognizant of the alleged infidelity of the defendant was when the husband stated that he was living with, and no longer be leaving, Lily Ann Alcala.

Somosa Ramos vs. Vamenta Jr. and Clemente Ramos

28

Facts: Petitioner Lucy Somosa Ramos filed a civil case for legal separation against Clemente Ramos on the ground of concubinage and attempt to life. She also sought the issuance of a writ of preliminary mandatory injunction for the return of her paraphernal and exclusive property then in the administration of the defendant. An opposition to the hearing of the motion was filed based on Article 103 of the Civil Code which states that an action for legal separation shall not be tried before six months had elapsed since the filing of the petition. Respondent judge held in favor of the defendant who claimed that any prospect for reconciliation will be lost if the motion was tried. Held: The court held that Art. 103 of the Civil Code is not an absolute bar to the hearing of a motion for preliminary injunction prior to the expiration of the six-month period. Art. 104 states that the court may appoint another person to manage the property should it deem it proper. The six-month bar should not have the effect of overriding the provisions such as determination of the custody of the children, alimony and support pendent lite.

Effects of Filing a Petition

FC Article 61: After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of guardian under the Rules of Court.

FC Article 62: During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouse and the custody and support of the common children.

- The spouses can live separately from each other;

- The administration of the common property, whether in absolute community or conjugal partnership gains, shall be given by the court to either of the spouses or to a third person, as is best for the interest of the community;

- The court shall provide for the support between the spouses and the custody and support of the common children;

- When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be necessary unless such spouse voluntarily gives consent.

Alimony “pendent elite”- During the pendency of the suit for legal separation, it is the duty of the court to grant alimony to the wife and to make provisions for the support of the children not in the possession of the father.

- An action for legal separation is based on the assumption that there is a valid, subsisting marriage thus, if defendant contends that the marriage is not valid, alimony “pendente elite” shal be denied.

Custody of the children may be determined by:

1. Agreement of the spouses which shall not be disturbed unless prejudicial to the children;

2. Court order which shall be based on the sound discretion of the judge, taking into account the welfare of the children.

Dela Vina vs. Villa RealFacts: Respondent Narcisa Geopano filed a complaint against Diego delaVina alleging that he committed acts of adultery with one Ana Calog. Respondent likewise alleged that she had been rejected from their conjugal home and had no means of support. She requested for the decree of divorce, partition of conjugal property and alimony. After filing the complaint, respondent also found that petitioner was trying to alienate the conjugal property to the prejudice of the plaintiff. Thus, plaintiff asked that a preliminary injunction be issued against defendant. The lower court ruled in favor of plaintiff-respondent as such, herein petitioner contended that the court had no jurisdiction over the case because the domicile residence of the wife was not Iloilo and that as administrator of the conjugal property, he had a right to alienate his wife. Held: The court held that a wife may acquire another and separate domicile from that of her husband when the theoretical unity of husband and wife is dissolved or if husband has given cause for divorce or where there is separation of the parties by agreement or a permanent separation due to desertion or cruel treatment or where there has been a forfeiture of the benefit of domicile. Also, petitioner’s claim that he had a right to alienate responded lacked merit. Court held that when the harmonious relationship between husband and wife ceases, it is but right that the husband’s powers of administration be curtailed in light of the pendency of the action for separation.

Reyes vs. Ines-Luciano and ReyesFacts: Celia Ilustre Reyes filed a complaint for legals separation against her husband, Manuel J. C. Reyes on the ground that the latter had attempted to kill the plaintiff. Plaintiff and herein respondent asked for support pendent elite for her and her three children which was granted by the lower court and respondent judge awarded plaintiff with P5,000 in monthly support. Petitioner opposed the ruling of the lower court on the ground that his wife committed adultery.Held: The court held that while adultery is a good defense, it should be established by competent evidence. In the case at hand, petitioner did not present evidence to that effect. Also, the plaintiff-respondent was not asking for mere support but for her share of the conjugal property or alimony. Complainant has also proven the grounds of legal separation through competent evidence.

29

Property relations of unmarried couples is that of co-ownership based on actual contribution and not the presumed half and half as it is in conjugal partnership.

Pendente Lite: Pending Litigation

Effects of Decree

Banez vs. BanezFacts: On Sept. 23, 1996, Aida P. Banez was legally separated from Gabriel Banez on the ground of the latter’s sexual infidelity. Included in the decision is the dissolution of their conjugal property relations, division of their net conjugal assets, forfeiture of respondent’s share in favor of the common children and the urgent ex parte motion to modify the decision and oblige petitioner to pay as attorney’s fees 5% of the total value of respondent’s ideal share. On the motion for execution, respondent Gabriel opposed. Trial court denied Aida’s motion for moral and exemplary damages and litigation fees but granted the motion for execution. Petitioner was thereby ordered to post a P1.5 M bond which she did. The Court of Appeals set aside the writ for execution.Held: The court denied the motion of execution n the ground that execution pending appeal is allowed when superior circumstances demanding urgency outweigh the damages that may result from the issuance of the writ. Otherwise, the writ will be a tool for oppression and inequity. Such urgency is not manifested by the case at bar. Legal separation is not one where multiple appeals are allowed. The issues involved in the case are of the same marital relationship between the parties. In this case, dissolution is a mere incident of legal separation. As such, no separate action may be taken.

FC Article 63: The decree of legal separation shall have the following effects:

1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;

2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership which shall be forfeited in accordance with the provisions of Article 43(2);

3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this code; and

4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law.

- The obligation of mutual fidelity remains. The only sanction in case of adultery or concubinage shall be penal.

- After the decree, the obligation of mutual support between the spouses ceases; however the court may

order that the guilty spouse shall give support to the innocent spouse.

- A parent shall still have a right to access his child under court regulation, unless he forfeited the privilege or if it would injuriously affect the child.

- The guilty spouse shall not be entitled to the legitime.

- A decree of separation which does not include an order of division of properties is not an incomplete judgment. The rules on dissolution and liquidation of property regime shall be applied when the decree of legal separation becomes final.

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

- The donations subsist if action is not taken before the death of the spouse.

PD 612 (Insurance Code) Sec. 11: The insured shall have the right to change the beneficiary he designated in the policy, unless he has expressly waived this right in said policy.

Dissolution and Liquidation of ACP or CPG

La Rue vs. La RueFacts: Upon the divorce of Walter F. La Rue from Betty J. La Rue in March 1980, the trial court held that the wife, having been a homemaker, was not entitled to her claim to the equitable distribution of marital assets. Petitioner Betty La Rue worked in the early part of their marriage until Mr. La Rue, herein respondent, convinced her to stop working and become a homemaker. The couple had two children. The divorce only awarded Mrs. La Rue with alimony and allowance for healthcare. Their home which was once under the name of Mrs. La Rue was transferred under Mr. La Rue prior to the decree of divorce. Held: Where the spouse has foregone career opportunities at the behest of the primary wage earning spouse, and throughout the long marriage has remained in the home to rear children and provide suitable environment for the family, the homemaker spouse shall have an equitable interest in real property acquired by the wage earning spouse during their marriage.

Doctrine of Equitable Distribution- Permits a spouse who has made material economic

contributions toward the acquisition of property which is titled in the name or under the control of the other spouse, to claim an equitable interest in such property in proceeding to seek a divorce.

- The concept of homemaker services is not to be measured by some mechanical formula but instead

30

rests on showing that the homemaker has contributed to the economic well-being of the family unit.

Custody

Determining the Best Interest of the Child:

1. Gender and Tender Years Presumption: When dealing with children of tender years, the natural mother is presumed in absence of evidence to the contrary, to be the proper person vested with custody of such children.

PD 603 Article XVII: …In case of separation of his parents, no child under five years of age shall be separated from his mother unless the court finds compelling reasons to do so.

Ex Parte DevineFacts: Petitioner Christopher P. Devine and respondent Alice Beth Clark Devine were separated on March 29, 1979. The couple had two children considered to be of tender years based on the Tender Years Presumption. Both Mrs. Devine and Mr. Devine were found to be fit to care for the children but on account of the Tender Years Presumption, custody was awarded to respondent. Petitioner contended that the Tender Years Presumption deprived him of the constitutionally mandated right of equal protection of the law. Held: Petition is granted. Case remanded to the lower court.In common law, the Tender Years Presumption was in favor of the husband who was the master of the family. While Alabama recognize the factual presumption that mothers are inherently suitable to care for and nurture young children, the presumption is weakening in other states. With this presumption, it becomes the father’s burden to prove that the mother is unfit to care for their common child. The constitutionality of this presumption, the court held, may not be lawfully mandated solely on the basis of sex.

Cervantes vs. FajardoFact: This is a petition for a writ of habeas corpus of minor Angeline Anne C. Cervantes filed by Nelson L. Cervantes and Zenaida C. Cervantes against Gina Carreon Fajardo and Conrado Fajardo. After the birth of Angeline Anne, respondents offered the child for adoption to Zenaida, Gina’s sister, and Nelson, her brother-in-law. The petitioners have taken care of the child since she was two weeks old and an Affidavit of Consent to Adoption was executed. On Aug. 20, 1987, the petition for adoption was granted and the child’s surname was changed to Fajardo. She was, from that decision, freed from parental authority and legal obligation of her natural parents. On April 1987, petitioners received a letter from respondents demanding P150,000 for the return of their adopted child who was taken by respondent Gina Carreon.

Held: The court reaffirmed the decision of the lower court. The provision that no mother shall be separated from a child under five years of age will not apply where the court finds compelling reasons to rule otherwise. Because the adoptive parents are legally married and the respondent’s relationship with her husband is that of common law and that respondent has given birth to a child by another man, the court held that it will be in the child’s best interest to stay with her adoptive parents.

Espiritu v. Court of AppealsFacts: Petitioner Reynaldo Espiritu and respondent Teresita Masauding met in 1976. In 1977, respondent left for Los Angeles, California to work as a nurse. In 1984, National Steel Corporation sent petitioner to Pittsburgh Pennsylvania as a liason officer and from then on, petitioner and respondent maintained a common law relationship. On August 16, 1986, their first child was born. The couple was married in October 1987 in the Philippines. After that, they had another child who was born in 1988. While in the US, respondent left her children with Petitioner to continue working in California while the latter was in Pittsburgh. Petitioner returned to the Philippines but upon being sent to Pittsburgh decided to leave his children with his sister Guillerma Layug. Teresita claimed that she did not immediately follow her children because she was afraid that Reynaldo has filed a case of bigamy against her. In December 1992, respondent filed a writ for habeas corpus. The trial court dismissed the petition but the decision was reversed by the CA. Held: The presumption that children under seven years of age can best be taken care of by the mother is rebuttable. The task of appointing custody cannot be solely based on the child alone but several other considerations. The seven year age is not based on the date petition was filed but the date decision is rendered. As such, the preference of the children should be taken into consideration in deciding the matter of their custody.

Celis vs. CafuirFacts: Respondents Soledad Cafuir and her husband Jose Simeon appealed the decision of the lower court granting the writ of habeas corpus to Ileana Celis and ordering the delivery of the child to petitioner. Petitioner, after giving birth to Joel (John) Cafuir turned over custody to Soledad, fearing the extreme displeasure and anger of her father. Soledad provided for all the needs and comforts of the child, including a nurse hired to care for the child. After marrying Agustin C. Rivera, petitioner filed the suit for habeas corpus. Respondents argued that petitioner

31

executed documents to the effect that she has renounced the custody of her children. The first stated that the child was “entrusted” to respondents while the second stated that Soledad is the “real guardian” of the child and no one may adopt the child except for Soledad. Held: The document cannot be taken to imply that petitioner has renounced the custody of her child. The child was, as the first document stated, merely “entrusted” and such arrangement was not permanent. Having been emancipated from her father, Ileana was in the position to care for her child and as such, has a right to do so.

FC Article 210: Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

2. Parental unfitness:

Feldman vs. FeldmanFacts: In a habeas corpus proceeding, the lower court transferred from the mother to the unmarried father the custody of their two infant children who previously had continuously resided with the mother. The couple was divorced in July 1970 on the ground of cruel and inhuman treatment on the part of the husband who was involved in extramarital relations prior to the dissolution of their marriage. The wife on the other hand, had a relationship to another man subsequent to the decree of divorce. Petitioner Philip Feldman alleged that he observed a copy of Screw Magazine (which possesses dubious redeeming social values) and that he found letters (some with explicit photographs attached) which were responses to an advertisement for another couples or groups for “fun and games,” in the house of respondent Mady Feldman. Respondent wife alleged that the advertisement was done for fun and that the evidence showed that her private sex life in no way affected the children and that the children were provided for.Held: Court held that amorality, immorality, sexual deviation and aberrant sexual practices do not, on its face, constitute unfitness for custody. The trial court’s ruling that parents who participate in a culture of “free sex” were unfit to care for children was a dangerous conclusion. Also, the right of women to engage in private sexual activities which do not affect her relationship with her children is protected by her right to privacy. If courts recognized the rights of unmarried men to engage in extramarital relations, there is no reason to impose stricter standards on women. The evidence of the obscene materials was likewise out of reach of the children. As such, they are not, on its face, detrimental to the children’s welfare.

Santos Sr. vs. Court of Appeals

Facts: Court of appeals granted custody of 6 year old Leouel Santos Jr., son f petitioner Leouel Santos Sr. and Julia Bedia-Santos to the latter’s parents, Leopoldo and Ofelia Bedia. Leouel Santos Sr. is an army lieutenant while Julia Bedia was a nurse working in the US. Since release from the hospital, Leouel Jr. had been in the custody of respondents. Julia has reportedly sent financial support while Leouel Santos had done no such thing. On Sept. 2, 1990, Leouel took his son from respondents prompting respondents to file a Petition for Care, Custody and Control of Minor ward Leouel Santos Jr. Petitioner argued that private respondents have failed to show that petitioner was an unfit and unsuitable father and as such, Article 214 of the Family Code cannot be applied. Private respondents contended that they can provide a comfortable life to the child and that petitioner, being a soldier, will not be able to care for the child. Held: Custody granted to petitioner. When a parent entrusts the child to another, what is given is merely temporary custody and not a perpetual renunciation of parental authority. A waiver of parental authority can only be executed in cases of adoption, guardianship and surrender to children’s home or an orphan institution. Petitioner’s previous inattention cannot be immediately construed as abandonment. His effort to keep custody of the child is a sign that he is willing to rectify his mistakes.

Role of the Child’s Preference

FC Article 49: …The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX.

FC Article 213: In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent is unfit.No child shall be separated from the mother unless the court finds compelling reasons to order otherwise.

David v. CAFacts: Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar who was then married and had a family. They had intimate relations which produced three children, Christopher, Christine and Cathy. Private respondent’s wife was aware of the existence of the illegitimate children. Christopher was taken by respondent on a trip to Boracay. Upon their return, respondent refused to return the child prompting petitioner to file for a write of habeas corpus. The trial court granted the petition but the Court of Appeals reversed the decision on the ground that the trial court had no jurisdiction over the case as the children were borne out of adulterous relations. Temporary custody was

32

awarded to respondent until such time that the issue on custody and support was determined in a proper case. Petitioner contended that the writ of habeas corpus applied to all cases of illegal confinement or detention or by which the rightful custody og any person is withheld. Held: Article 213 of the FC states that custody of a child under six will be given to the mother unless the court deems it proper to rule otherwise. Absent any showing that petitioner is unfit (although admittedly, she is not as well-off as respondent), custody shall be given to her. As the child is over the presumed tender years, custody must still remain with the mother as the child has categorically expressed preference to live with his mother.

Pizarro vs. VasquezFacts: This suit for obtaining support from defendant was instituted by Maria Pizarro and her minor children, Gloria, Julita and Lorenzo. Plaintiff and defendant separated on the ground that the latter committed acts of infidelity and cruelty. Defendant denied the claim and alleged that there is no contract of separation and that Maria Pizarro committed acts of adultery. The evidence of said adulterous relations was the birth of Lorenzo 11 months after the couple separated. Petitioner explained that they had sexual intercourse sometime in November 1933 during the town fiesta in the belief that defendant had changed. Held: Claims of plaintiff that defendant had kept a mistress and had maltreated her were not contradicted. Also, absent any evidence that plaintiff indeed committed adultery and considering the prima facie presumption of innocence, plaintiff should be given support by the defendant.

Laxamana vs. LaxamanaFacts: Petitioner Reymond Laxamana was a graduate of Bachelor of Laws while respondent Ma. Lourdes Laxamana held a degree in Banking and Finance. Upon marriage, respondent quit her job and became a full time housewife while petitioner managed buy and sell, fishpond and restaurant businesses. The couple had three children. In October 1991, petitioner was confined in Estrellas Home Care Clinic for being a drug dependent. He was again confined in 1996 for rehab. In 1997, petitioner was declared drug free but respondent alleged otherwise stating that petitioner has become irritable since his return and had even maltreated her at one point. Respondent abandoned petitioner in June 1999 taking the children with her. Petitioner filed a writ for habeas corpus for visitation rights which the court granted. The parties were ordered to undergo psychological evaluation which they

passed except for the psychologist’s opinion that petitioner, in his belief, was not completely drug free. Held: Case was remanded. It is the duty of the court to hold a trial notwithstanding the agreement of the parties to submit the case for resolution on the basis of a psychiatric report. While petitioner had a history of drug dependence, records were inadequate to show his moral, financial and social well-being. There is therefore no proof that he is unfit to care for his children. The court also failed to consider the preference the choice of the children who were then 14 and 15 years old.

Presumption of Primary Care Taker

Garska vs. McCoyFacts: Appelant Gwendolyn McCoy was pregnant with her first child, Jonathan Conway, at 15 years old. During pregnancy, Michael Garska, herein petitioner, did not give any support. When the child was born, petitioner sent food and diapers. The baby developed a chronic respiratory infection and to be able to use the United Mine Worker’s medical insurance of her grandfather, appellant agreed to the adoption of Jonathan by her grandparents. The petition was dismissed on the ground that the child had not lived with the grandparents for the requisite six months. Upon learning the action for adoption, petitioner filed for a writ of habeas corpus which was granted by the lower court. Held: While the tender years presumption in favor of the mother is no longer in effect, custody should still be granted to appellant on the basis that she has been the primary caretaker of the child in question. Logically, the primary caretaker parent is not in superior financial position as such, the material welfare of the child depends on the award of support. Court therefore held that the presumption is in favor of the primary caretaker parent if he or she meets the minimum objective standard for being a parent. The presumption shall only apply to children of tender years. Custody was granted to Gwendolyn McCoy. Court held that manipulation of the welfare system to provide for the child’s healthcare shall not be construed as an attempt to abandon the child.

Other Effects

CC Article 372: When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.

- This is so because her married status is not affected by the separation.

- After legal separation, the marriage bonds are not severed.

CC Article 370: A married woman may use:

33

(1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs."

Matute vs. MacadaloFacts: Petitioner Rosario Matute and private respondent Armando Medel were legally separated on the ground of adultery committed by petitioner with her brother-in-law. Custody of the four minor children was thereby awarded to Armando. With permission from private respondent, petitioner brought her children to Manila to attend her father’s wake. Thereafter, she filed a civil suit, praying for custody of her children whom she alleged has expressed preference to stay with her. Three of the said children were no longer of “tender years.” Armando moved to have Rosario charged with contempt of court for disobeying the court’s decision to grant custody to Armando but the court did not accede owing to the fact that Armando consented. However, the court did not grant custody to petitioner. Petitioner argued that the act of adultery she was charged with does not constitute moral depravity. Armando was found to be living with a different woman and such relations were likewise adulterous. Held: Alleged errors by respondent were merely errors of judgment and not errors of jurisdiction.

Laperal vs. Republic of the PhilippinesFacts: Elisea Laperal has been legally separated from her husband Enrique Santamaria. During their marriage, petitioner used the latter’s surname. She prayed that she be allowed to use her maiden name considering that she and her husband had not lived together for a long time. Petition was opposed b y the City Attorney of Bagiuo but in a motion for reconsideration, the petition was granted on the basis that the use of the married name will give rise to confusion in finances and the eventual liquidation of the conjugal assets. Held: The language of the statute is mandatory and a woman shall continue using her married name because her married status is unaffected by her legal separation. The fact of legal separation alone is not a sufficient ground to justify a change of name.

Reconciliation

FC Article 65: If the spouses reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation.

FC Article 66: The reconciliation referred to in the preceding article shall have the following consequences:

1. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and

2. The final decree of legal separation shall be set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.

The court’s order containing the foregoing shall be recorded in the proper civil registries.

FC Article 67: The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify:

1. The properties to be contributed anew to the restored regime;

2. Those to be retained as separate properties of each spouse; and

3. The names of all their known creditors, their addresses and the amounts owing to each.

The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of properties.The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified unless the debtor-spouse has sufficient separate properties to satisfy.

- The word ‘revive’ implies that the conjugal property regime prior to the decree of legal separation would be restored however, parties are still allowed to stipulate what would be brought into the revived property regime.

- Reconciliation must be a voluntary mutual agreement to live together as husband and wife. Filing of manifestation is only needed to terminate the case in court and for purposes of future property relations of the spouses.

- If the reconciliation takes place after the decree of legal separation has been handed down by the court, the decree is set aside, and all the orders in that decree will have no effect, except as to the property relations of the spouses. The community of property or conjugal partnership of gains is not automatically revived.

- After the spouses have reconciled, a new action for legal separation can be based only on the subsequent or other causes, but not on the causes already pardoned.

Divorces

Foreign DivorcesThe Nationality PrincipleCC Article 15: Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad.

FC Article 26: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except in those prohibited under Articles 35 (1), (4), (5), and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have the capacity to remarry under Philippine laws.

- General rule is a marriage valid where it was celebrated is valid everywhere.

- Exceptions to the general rule:

34

o Marriages which are contrary to the law of nature and good morals as generally recognized in Christian countries (ex. polygamous and incestuous marriages).

o Marriages which the local law-making power has declared shall not be allowed any validity.

- Foreign marriages under Articles 35 (those contracted below 18, those polygamous and bigamous, those contracted through mistake in identity and those void under Article 53), 36 (Psychological incapacity), 37 (Incestuous Marriages) and 38 (Marriages void by reason of public policy).

- Laws on legal capacity to marry are binding to Filipinos in all countries.

- While the forms of entering into the contract of marriage are to be regulated by the law where it is celebrated, the essentials of the contract depend upon the law of the domicile for the parties.

FC Article 26 vs. CC Article 15- Article 26 corrects the riduculous situation wherein a

Filipino who married a foreigner remains married inspite of a divorce decree issued in a different country.

- Article 26 is more restrictive in that it requires that the divorce be secured by the foreign spouse and that Filipinos naturalized as citizens of other countries are exmept from the application of the law.

Van Dorn vs. RomilloFacts: Petitioner Alicia Reyes Van Dorn is a citizen of the Philippines while private respondent Richard Upton is a citizen of the US. The couple was married in Hong Kong and had two children. They lived together in the Philippines until their divorce in 1982. They were divorced in Nevada. After the divorce, petitioner married Theodore Van Dorn. Private respondent filed a suit claiming that the Galleon shop, petitioner’s business is conjugal property. Petitioner’s motion to dismiss was not granted by respondent judge, Hon. Manuel V. Romillo Jr. According to petitioner, respondent is estopped from claiming the alleged conjugal property because of the representation he made in the divorce proceedings that they had no community of property. Held: There is no question as to the validity of that Nevada divorce or divorce in any state in the United States. The decree is binding on private respondent as an American Citizen. Aliens may obtain divorces abroad, which may be recognized in the Philippines provided that they are valid according to their national law. As such, respondent is no longer the legal husband of herein petitioner.

Quita vs. CA and DandanFacts: Fe Quita married Arturo Padian in the Philippines in 1941. The couple agreed to live separately until 1950 when petitioner sued Arturo for divorce. After the decree of divorce Fe married a certain Felix Tupaz whom she divorced and then a certain Wernimont. Arturo died in 1972 without a will. Lino Javier Inciong filed a petition for the right to administer the estate of

Arturo. Blandina Dandan, claiming to be the surviving spouse of Arturo, along with her six children filed their opposition to Javier, praying that the administration of the estate be granted instead to their lawyer. In 1987, petitioner moved for immediate declaration of the heirs of respondent and distribution of his estate. The Dandan family did not appear in court. Arturo’s brother, Ruperto and Fe Quita were declared the only heirs of Arturo. The trial court held that a foreign divorce sought by Filipinos after the effectivity of the Civil Code is not recognized in this jurisdiction. As such, Blandina was not a legitimate spouse. As proof of filiation of the children was presented, partial reconsideration was granted by the court in favor of Arturo’s illegitimate children. Held: The mere fact that petitioner declared Arturo was Filipino and thus remained legally married to her in spite of the divorce implies that Quita was no longer a Filipino citizen at that time. As such, the trial court should have conducted a hearing to establish the citizenship. Quita has apparently testified that she has been a US citizen since 1954.

Llorente vs. Court of AppealsFacts: Lorenzo Llorente was an enlisted serviceman of the US Navy from 1927 to 1957. In 1937, he and Paula were married. Before the war, Lorenzo Llorente went to the United States leaving Paula in the Philippines. In 1943, Lorenzo acquired US Citizenship. Upon his return after the war, he discovered that his wife was pregnant and was cohabiting with his brother Ceferino. She later gave birth to a son by the adulterous relation. Lorenzo refused to forgive Paula and the couple drew an agreement which stated that family allowances would be suspended, marital union will be dissolved and a separate agreement on the conjugal property was to be made. The agreement was duly signed and notarized. In 1951, Lorenzo filed for a divorce and which was decreed one year later. Upon his return he married Alicia who had no knowledge of his prior marriage. In 1981, a will was executed to the effect that all his property will be given to Alicia and his kids by her. In 1983, Lorenzo petitioned for Alicia to be the administrator of their conjugal property which was denied as he was still alive. Lorenzo died on June 1985 and a few months after his death, Paula filed a petition for letters of administration as the surviving spouse of Lorenzo. The lower court held that Lorenzo’s marriage with Alicia was void and that Paula should get 1/3 of the properties. Held: Divorce obtained in a foreign country is recognized in this jurisdiction. Lorenzo was no longer a Filipino Citizen when he obtained divorce.

35

Garcia a.k.a. Recio vs. RecioFacts: Rederick Recio, a Filipino, was married to an Australian, Editha Samson, in Malabon on 1987. The couple lived together as husband and wife in Australia but on 1989 they divorced. In 1992, Recio became an Australian citizen. He married Grace Garcia two years later and in their marriage license, he declared that he was a Filipino. A year after their marriage, Garcia and Recio started living separately and their assets were divided in 1996. Grace filed a petition for nullity on the ground of bigamy alleging that she learned of Recio’s prior marriage to Samson only in November of 1997. Recio argued that he revealed his prior marriage in 1993. In 1998, a divorce from Garcia was secured as such, respondent moved to dismiss petition of Garcia on the ground that there was no longer a cause of action. Held: The Case was remanded to the trial court for the purpose of obtaining evidence to show respondent’s legal capacity to marry. The best evidence of divorce is the decision itself as authenticated by the consular officer. Proof of the existence of provision on divorce and the alleged divorce decree are likewise necessary to show capacity to remarry. It was found that no decree of absolute divorce has been given but divorce in the sense of legal separation. - There is no judicial cognizance of foreign laws there is therefore an additional requirement now, to show the effects of the divorce decree.

Intrinsic vs. Extrinsic- In intrinsic there is absence of the

essential requisites (Article 15 applies).- In extrinsic, lex law psy celebrationis or

valid in the country, valid everywhere.- Extrinsic pertains to the formalities or

formal requisites which ay be dictated by the country decreeing the divorce (Article 26 applies).

- The same is true for rules of succession.

Muslim Divorces

Yasin vs. Shari’a District CourtFacts: Hatima Yasin, a Muslim Filipino of legal age, was married to Hadji Idris Yasin until their divorce in May 13, 1984. After their divorce, Hadji Idris Yasin contracted another marriage and as sch, petitioner asked that she be allowed to resume use of her maiden name and surname, Hatima Centi y Saul. The Shari’a court stated that she did not file the petition in sufficient form and substance provided for in Rule 103 of the Rules of Court. Petitioner filed a motion for reconsideration stating that the petition she filed

is not covered by the rules of court but is merely a petition to resume the use of her maiden name and surname after the dissolution of her marriage by divorce. Held: The true and real name of a person is that given to him and entered into the civil register. While it is true that under Article 376 of the Civil Code, no person can change his name or surname without judicial authority, nonetheless, the only name that may be changed is the true and official name. Petitioner is not seeking to change her registered name but for her to be allowed to resume the use of it. The procedures for change of name under the Rules of Court shall not be applied to judicial confirmation of the right of a divorced woman to resume her maiden name and surname.

Code of Muslim Personal Laws

Art. 46. Divorce by talaq. — (1) A divorce by talaq may be effected by the husband in a single repudiation of his wife during her non-menstrual period (tuhr) within which he has totally abstained from carnal relation with her. Any number of repudiation made during one tuhr shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed 'idda.

(2) A husband who repudiates his wife, either for the first or second time, shall have the right to take her back (ruju) within the prescribed 'idda by resumption of cohabitation without need of a new contract of marriage. Should he fail to do so, the repudiation shall become irrevocable (Talaq bain sugra).

Art. 47. Divorce by Ila. — Where a husband makes a vow to abstain from any carnal relations (ila) with his wife and keeps such ila for a period of not less than four months, she may be granted a decree of divorce by the court after due notice and hearing.

Art. 48. Divorce by zihar. — Where the husband has injuriously assimilated (zihar) his wife to any of his relatives within the prohibited degrees of marriage, they shall mutually refrain from having carnal relation until he shall have performed the prescribed expiation. The wife may ask the court to require her husband to perform the expiation or to pronounce the a regular talaq should he fail or refuse to do so, without prejudice to her right of seeking other appropriate remedies.

Art. 49. Divorce by li'an. — Where the husband accuses his wife in court of adultery, a decree of perpetual divorce may be granted by the court after due hearing and after the parties shall have performed the prescribed acts of imprecation (li'an).

Art. 50. Divorce by khul'. — The wife may, after having offered to return or renounce her dower or to pay any other lawful consideration for her release (khul') from the marriage bond, petition the court for divorce. The court shall, in meritorious cases and after fixing the consideration, issue the corresponding decree.

Art. 51. Divorce by tafwid. — If the husband has delegated (tafwid) to the wife the right to effect a talaq at the time of the celebration of the marriage or thereafter, she may repudiate the marriage and the repudiation would have the same effect as if it were pronounced by the husband himself.

36

Art. 52. Divorce by faskh. — The court may, upon petition of the wife, decree a divorce by faskh on any of the following grounds :

(a) Neglect or failure of the husband to provide support for the family for at least six consecutive months;

(b) Conviction of the husband by final judgment sentencing him to imprisonment for at least one year; .chan robles virtual law library

(c) Failure of the husband to perform for six months without reasonable cause his marital obligation in accordance with this code;

(d) Impotency of the husband;

(e) Insanity or affliction of the husband with an incurable disease which would make the continuance of the marriage relationship injurious to the family;

(f)Unusual cruelty of the husband as defined under the next succeeding article; or

(g) Any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of the wife or the proper wali..chan robles virtual law library

Art. 53. Faskh on the ground of unusual cruelty. — A decree offaskh on the ground of unusual cruelty may be granted by the court upon petition of the wife if the husband:

(a) Habitually assaults her or makes her life miserable by cruel conduct even if this does not result in physical injury;

(b) Associates with persons of ill-repute or leads an infamous life or attempts to force the wife to live an immoral life;

(c) Compels her to dispose of her exclusive property or prevents her from exercising her legal rights over it;

(d) Obstructs her in the observance of her religious practices; or

(e) Does not treat her justly and equitably as enjoined by Islamic law.

Art. 54. Effects of irrevocable talaq or faskh. — A talaq or faskh, as soon as it becomes irrevocable, shall have the following effects:

(a) The marriage bond shall be severed and the spouses may contract another marriage in accordance with this Code;

(b) The spouses shall lose their mutual rights of inheritance;

(c) The custody of children shall be determined in accordance with Article 78 of this code;

(d)The wife shall be entitled to recover from the husband her whole dower in case the talaq has been affected after the consummation of the marriage, or one-half thereof if effected before its consummation; .chan robles virtual law library

(e) The husband shall not be discharged from his obligation to give support in accordance with Article 67; and

(f) The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated.

Art. 55.Effects of other kinds of divorce. — The provisions of the article immediately preceding shall apply to the dissolution, of marriage by ila, zihar, li'an and khul', subject to the effects of compliance with the requirements of the Islamic law relative to such divorces.

Section 2. 'Idda. —

Art. 56. 'Idda defined. — 'Idda is the period of waiting prescribed for a woman whose marriage has been dissolved by death or by divorce the completion of which shall enable her to contract a new marriage.

Art. 57. Period. — (1) Every wife shall be obliged to observe 'idda as follows:

(a) In case of dissolution of marriage by death, four months and ten days counted from the death of her husband;

(b) In case of termination of marriage by divorce, for three monthly courses; or

(c) In case of a pregnant women, for a period extending until her delivery.

(2) Should the husband die while the wife is observing 'idda for divorce, another 'idda for death shall be observed in accordance with paragraph 1(a)..chan robles virtual law library

FC Article 100: The separation in fact between husband and wife shall not affect the regime of absolute community except that:

1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

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

- Separation of fact refers to the actual definite separation of the persons of husband and wife, thereby terminating cohabitation or common life under the same roof without judicial order. There is no separation of fact if business affairs only require that they occupy separate residences but their relations continue to be intimate and friendly.

- The spouse who leaves the conjugal home without justification loses the right to be supported by the other spouse but his obligation to support the latter is not extinguished.

- Judicial authorization is necessary when the consent of one spouse is necessary for a transaction but cannot be obtained.

FC Article 127: The separation in fact between the husband and wife shall not affect the regime of conjugal partnership, except that:

1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

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

37

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

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

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

FC Article 247: The judgment of the court shall be immediately final and executory.

Perez vs. Court of AppealsFacts: Rey Perez, a doctor of medicine practicing in Cebu and his wife, Nerissa a registered nurse and herein petitioner were married in December 1986. Their marriage produced one child born in July 1992. Petitioner began working in the US on October 1988 and became a resident alien in 1992. She was able to construct a house in Mandaue using her earnings. Respondent stayed with her in the US twice while she was pregnant and when she gave birth to Rey Perez II. Unlike his wife, he had only a tourist visa and was unemployed in the US. The family went back to Cebu in 1993 but after a few weeks, Nerissa went back to the US because the husband preferred to stay behind to take care of his sick mother. Nerissa filed a petition for a writ of habeas corpus asking respondent Rey Perez to surrender custody of their son to her. Lower court granted the custody to the mother based on Article 213 of the Family Code. CA reversed the decision and granted the custody to the father instead. Held: Article 213 of the FC provides that “in case of separation of parents, no child under 7 years of age shall be separated from the mother unless…” Since the code did not qualify the word separation to mean “legal separation” couples separated in fact are still covered by its terms. The provision likewise mandates that the child under seven years of age shall be in the custody of the mother absent any showing that the mother is unfit to care for the child. In the case herein, the Petitioner alleged that the mother will not be able to take care of the child as she works as a nurse. The Court however held that such a

supposition is unfounded especially as there are means by which the mother could take care of the child despite the demands of her profession.

38