PROF. ELMER T.

RABUYA’s
LAST MINUTE LECTURE IN CIVIL LAW
(2018 BAR EXAMS)

A. PERSONS & FAMILY RELATIONS

1. Accion In Rem Verso vs. Solutio Indebiti

a) Similarities: In Both ---
i) Plaintiff suffers a loss;
ii) Defendant is enriched;
iii) Defendant’s enrichment is unjust because payment or delivery to him
is without legal or just cause;
iv) Defendant is obliged to return the unduly payment or delivery; and
v) The objective is to prevent unjust enrichment.

b) Distinctions:
i) In the first, the source of obligation is law; while in the second, the
source is quasi-contract;
ii) In the first, the undue payment or delivery is not by reason of mistake;
while in the second, the undue payment or delivery is by reason of
mistake;
iii) The first can only prosper if plaintiff has no other legal remedy under
contract, quasi-contract, delict or quasi-delict.

2. Suit for Damages Under Article 28, Civil Code (Unfair Competition)
a) Concept is broader than in intellectual property laws. It does not require
patent.
b) Requisites for liability:
i) Act causes injury to a competitor or trade rival; and
ii) Such act is contrary to good conscience, or shocking to judicial
sensibilities, or otherwise unlawful. (Willaware Products Corp. v.
Jesichris Manufacturing Corp.)

3. Nationality Principle (Article 15) and Art. 17, par. 3, Civil Code.
a) Applies if issue is: status, condition, legal capacity of persons and his family
rights and duties.
b) Not applicable when:
i) Issue is capacity of heir to succeed. Govening law is national law of
decedent.
ii) Issue is legal capacity to acquire real properties. Governing law is lex
rei sitae.
iii) Issue is duty of a foreigner parent to give support to his child in the
Philippines. Even his national law does not oblige him to give support,
such law does not apply in the Philippines for two (2) reasons: (1) in
private international law, the forum may refuse to apply applicable
foreign law if the same is contrary to a sound and well-established
public policy of the forum; (2) a foreign law cannot render ineffective
Philippine laws which are declarations of public policy. (Del Soccoro
v. Van Wilsem)

4. Civil Personality of Conceived Child:

a) A person is possessed of civil personality if at the time of complete delivery:
i) Infant is alive, if it had an intra-uterine life of at least 7 months
ii) Infant survive for 24 hours, if intra-uterine life is less than 7 months

b) For those still in mother’s womb (conceived child), it also has civil
personality:
i) but only for purposes beneficial to the child (limited personality); and
 ii) such personality is provisional (temporary) subject to compliance upon
delivery of conditions mentioned in (a) above.
c) In the CBA, a union member is entitled to financial assistance in case of death
of a legitimate dependent. His 6-month child was delivered dead by the wife.
Employer refused to give financial assistance on the ground that no death
occurred in the family of the union. Employer argued one cannot die if he is
never possessed of civil personality. Employer’s contention is wrong:
i) Death is simply cessation of life. A conceived child has life and
cessation of that life is death. Death extinguishes civil personality but
the latter is not a requirement for death.
ii) A conceived child is a dependent of union member because it has civil
personality for purposes beneficial to it while inside mother’s womb.
iii) A child conceived inside a valid marriage is a legitimate dependent
because the status of legitimacy attaches from conception.
iv) If issue is the right of the parent (and not the right of the conceived
child), there is no need to determine the civil personality of the
conceived child. (Continental Steel Manufacturing Corp. v. Montano)

5. Prejudicial Question
a) Effect: only a ground for suspension of criminal case to await for outcome of
civil case.
b) Requisites:
i) civil case is filed ahead of the criminal case;
ii) issue in both cases are intimately related;
iii) issue in the civil determines whether the criminal case may proceed or
not.
c) Example No. 1: A got married to B in 1997 w/o a license. In 2010, A married
B w/o a judicial declaration of nullity of prior marriage. In 2015, A filed
petition to declare first marriage void on ground of absence of marriage
license. In 2016, he is prosecuted for bigamy. NO PREJUDICIAL
QUESTION because the civil case does not determine the outcome of the
criminal case. Whatever may be the outcome of the civil case, the crime of
bigamy has been committed.
d) Example No. 2: A and B signed a marriage contract without a solemnizer.
Subsequently, the solemnizer signed the same without the parties. Said
marriage contract was registered in the NSO. Thereafter, A married C. After
the marriage of A and C, A filed petition to cancel the marriage contract
between him and B under Rule 108. He was subsequently charged with
bigamy. THERE IS A PREJUDICIAL QUESTION because the civil case is
determinative of the criminal case. If the civil case will be granted, the crime
of bigamy is not committed.

6. Absolute Divorces and Article 26, Par. 2, FC:

a) If divorce is obtained by a foreigner married to another foreigner, our court
can recognize the validity of such decree of divorce.
b) If divorce is obtained by a Filipino married to another Filipino, divorce is void
because it is contrary to public policy and morality.

c) If a Filipino is married to a foreigner, the divorce is recognized as valid

insofar as the Filipino citizen is concerned under Article 26, par. 2 of the FC.
d) In determining the citizenship of the parties for purposes of determining the
validity of the divorce, the reckoning point is their citizenship at the time the
valid divorce decree is obtained (not the citizenship at the time of the
marriage). (Republic v. Orbecido III)

7. Applicability of Article 26, Par. 2, FC

a) Article 26, par. 2, FC applies even if the divorce is obtained by the foreigner,
the Filipino spouse (Republic v. Manalo), or jointly by them (Medina v.
Koike).
b) Provided that the divorce obtained: (1) is valid pursuant to the national law of
the foreigner spouse; and (2) it capacitated the foreigner to remarry.
 c) In short, if the foreigner spouse is released from the marriage, the Filipino
spouse is also released from the marriage regardless of who may have
obtained the divorce.
d) If the divorce and the subsequent marriage of the Filipino spouse occurred
prior to the effectivity of the FC, same rule above applies. But the basis is not
the FC but jurisprudence, such as Van Dorn v. Romillo, Jr., Quita v. CA and
Pilapil v. Ibay-Somera. (San Luis v. San Luis)
e) Our courts can also recognize a foreign judgment declaring the marriage of a
Filipino to a foreigner as void on the ground of bigamy. There is no need to
file another petition in the Philippines to have the same marriage declared
void ab initio. Otherwise, the foreigner is already released from the marriage
but the Filipino spouse is not and that may not be allowed. (Fujiki v. Marinay)

8. Legal Capacity For Purposes of Marriage:

a) Age requirement: at least 18. Below 18, no capacity. Void marriage under Art.
35 (1), FC.
b) Absence of impediment like a subsisting valid or voidable marriage, Article
37 and Article 38.
c) Coming from Opposite Sex:
i) Determination of sex is determined by nationality principle. Hence, if
foreign law recognizes sex reassignment, foreign law prevails as to the
sex of the foreigner.
ii) For Filipinos, sex is determined at the time of birth by mere visual
examination of genitals.
iii) Such determination is immutable and cannot be changed by sex re-
assignment surgery (for Filipinos) because we do not have laws
recognizing its legal effects. (Silverio v. Republic)
iv) But if the person is suffering from an abnormality known as
Congenital Adrenal Hyperplasia resulting in doubts over the genitals,
the choice of the person prevails. (Republic v. Cagandahan)

9. Consent in Marriage:
a) If consent is not given, there is no marriage. If consent is given but defective,
marriage is voidable.
b) If consent is given during the marriage ceremony and the same is not
defective, marriage is perfectly valid:
i) Even if there is no love. Love is not the only consideration for
marriage contract. (Republic v. Albios)

ii) Even if the only purpose of the marriage is to obtain foreign

citizenship and there was an agreement not to live together. Because
marriage can be entered into for any purpose not contrary to law.
(Republic v. Albios)

10. Marriage License:

a) If marriage is exceptional, no need for marriage license.
b) If marriage is NOT exceptional and celebrated w/o marriage license, marriage
is void.
c) If marriage is celebrated w/ a license but there was irregularity in obtaining
the license, marriage is valid. However, those responsible for irregularity can
be subject to administrative, civil or criminal liability.
d) Exceptional marriages:
i) articulo mortis marriages
ii) where parties reside in a very remote place
iii) both parties are Muslims or members of ethnic cultural communities
iv) legal ratification of marital cohabitation (Art. 34, FC)

11. Legal Ratification of Marital Cohabitation (Art. 34, FC)

 a) Requisites: (1) man and woman lived together as husband and wife for a
minimum period of 5 years (counted backwards from the marriage and must
be uninterrupted); and (2) there is no impediment during the 5-year period of
cohabitation. If complied, marriage does not require license.
b) If above requisites NOT complied but affidavit of cohabitation is falsified,
marriage is still void because marriage is not exceptional. Principle of
estoppel cannot be applied because validity of marriage is determined by laws.
Falsity of affidavit is not a mere irregularity but a total absence of a formal
requisite --- marriage license. (Republic v. Dayot; De Castro v. Assidao-De
Castro)

12. Void Marriage vs. No Marriage At All

a) If a marriage is celebrated but such marriage is void ab initio, there is a need
to have that marriage declared void ab initio for purposes of contracting
another marriage (Art. 40, FC). Here, the proper remedy is a Petition for
Declaration of Absolute Nullity of the Marriage and not a petition for
cancellation of the marriage contract under Rule 108. For example, if the
marriage is bigamous, the same cannot be declared void in a petition under
Rule 108. (Braza v. City Civil Registrar, City of Himamaylan, Negros
Occidental).
b) However, if no marriage took place, such as in a case where the identity of a
person was used in contracting a marriage to a Korean national, the remedy of
the aggrieved person is a petition for cancellation and/or correction of entries
in the Civil Registry under Rule 108 and not a petition for declaration of
absolute nullity because there is no marriage involving the aggrieved party
that can be declared void (Republic v. Olaybar). The same remedy is available
to the parties who merely signed a marriage contract privately without the
presence of an authorized solemning officer. Here, there is no marriage to
speak of because there is no marriage ceremony. (Morigo v. People)

c) If the marriage is void, there is a need to comply with the requirement of

Article 40 of the FC prior to contracting another marriage, otherwise the crime
of bigamy is committed (Mercado v. Tan). If there is no marriage to speak of,
there is no need to comply with the requirement of Article 40 because the
proper remedy is simply a petition under Rule 108 (correction and/or
cancellation of entries in the civil registry). (Morigo v. People and Republic v.
Olaybar)

13. When Judicial Declaration is Necessary (If Prior Marriage is Void)

a) If second marriage took place prior to August 19, 1986: prevailing rule at that
time was that a void marriage is not subsisting and a judicial declaration of
absolute nullity is not required prior to contracting another marriage. Hence,
the second marriage is valid and no crime of bigamy is committed. This is the
Odayat doctrine. (Odayat v. Amante)
b) If second marriage took place after August 19, 1986 but prior to August 3,
1988: SC changed the rule. Even if the prior marriage is void, it is subsisting
unless judicially declared void. Hence, if another marriage is contracted
without a prior judicial declaration of absolute nullity of the prior marriage,
the second marriage is bigamous and void and the crime of bigamy is
committed. Basis is not FC but the case of Wiegel v. Sempio-Diy.
c) If second marriage took place after the effectivity of the FC: Judicial
declaration of absolute nullity of a void marriage is necessary prior to
contracting another marriage, otherwise the second marriage is bigamous and
void and the crime of bigamy is committed. The basis now is Article 40 of the
FC.
14. Distinctions Between Bigamous Marriage In Article 35(4) and Article 40, FC
a) As to status of prior marriage: In Article 35(4), the prior marriage is either
valid or voidable; In Article 40, the prior marriage is void.
b) As to property regime: In Article 35(4), the void marriage is governed by the
property regime under Article 148 of the FC. In Article 40, the void marriage
is governed either by absolute community (if marriage is celebrated without a
marriage settlement) or by conjugal partnership of gains or complete
separation (if there is a marriage settlement providing for such regime).
c) As to issuance of decree of absolute nullity: In Article 35(4), the decree can be
issued immediately even if there is a co-ownership because the partition of the
co-ownership is not required to be made in the same proceeding for
declaration of nullity of the marriage. In Article 40, if the property regime is
either absolute or conjugal, the decree cannot be issued yet unless there is
liquidation, partition and distribution of properties and delivery of
presumptive legitime. (Dino v. Dino)

15. A marriage can be declared void even if the action or proceeding is for:
a) action for support (De Castro v. Assidao-De Castro)
b) determination of entitlement to SSS death benefits (Carino v. Carino)
c) settlement of the estate of the deceased spouse because a void marriage can be
attacked collaterally.
d) BUT NOT: in a petition for correction and/or cancellation of entries in the
civil registry under Rule 108 (Braza v. City Civil Registrar)

16. Bigamy and Absolute Nullity of Second Marriage

a) Crime of bigamy is not committed if second marriage is void for reasons other
than the existence of the prior marriage. In bigamy, it is necessary that the
second marriage would have been valid had it not been for the existence of the
first marriage.
b) For example, if the second marriage is celebrated without a marriage license,
the crime of bigamy is not committed. (People v. De Lara; Go- Bangayan v.
Bangayan) However, if the reason for the absence of a marriage license in the
second marriage is because the parties made it appear to be an exceptional
marriage under Article 34 of the FC, the parties cannot make use of their
illegal act of feigning a marriage as their defense in bigamy, otherwise it
would make a mockery of the sacred institution of marriage. (Santiago v.
People)
c) However, if the second marriage is void by reason of psychological incapacity
(Art. 36, FC), the crime of bigamy is still committed because the judicial
declaration of absolute nullity of the marriage does not wipe out the criminal
liability of the accused for bigamy (Tenebro v. CA)

17. Personality to File Petition for Declaration of Absolute Nullity of Marriage

a) If marriage is celebrated during the effectivity of FC: (1) Only the husband or
the wife can file the petition (AM 02-11-10-SC); (2) However, if the ground is
bigamy, the aggrieved spouse in the prior marriage has the personality to file
the petition for the following reasons: (i) the rule in AM 02-11-10 does not
apply if the ground is bigamy; (ii) in bigamy, the aggrieved spouse is the
spouse in the prior marriage; and (iii) the parties to the first marriage are the
husband and wife because the parties to the second marriage are not spouses
(the marriage being void). (Juliano-Llave v. Republic, Del Castillo Case); (3)
the petition can only be filed during the lifetime of the spouses.
b) If marriage is celebrated during the effectivity of the Civil Code: (1) Only real
parties-in-interest can file the petition; (2) the petition can be filed even after
the death of one of the spouses; (3) after death of one of the spouses, the
intestate or compulsory heirs of the spouses can file the petition, being a real
party in interest. (Ninal v. Bayadog; Garcia-Quiason v. Belen)

18. Article 41, FC (Second Marriage By Reason of Presumptive Death)

a) If 2nd marriage is celebrated prior to effectivity of FC:
 i) Requisites: period of absence required is 7 years and spouse present
believed in good faith that absentee is already dead. Under the Civil
Code, a judicial declaration of presumptive death was not required.
ii) Status of second marriage: voidable and can only be terminated by a
judgment of annulment. Recording of affidavit of reappearance is not
applicable (it is applicable only for 2nd marriage celebrated during the
effectivity of FC).

b) If 2nd marriage is celebrated during the effectivity of FC:

i) Requisites: (1) period of absence is 4 or 2 years; (2) spouse present
must have a well-founded belief that absentee is already dead; and (3)
spouse present must obtain a judicial declaration of presumptive death.
ii) Status of second marriage: If the foregoing requisites are complied,
second marriage is perfectly valid. If not complied, second marriage is
void for being a bigamous marriage.
iii) How to terminate second marriage: If second marriage is valid, it can
be terminated either by: (a) recording of affidavit of reappearance; or
(b) judicial declaration of its dissolution or termination. If second
marriage is void for being bigamous, the remedy is a petition to
declare it as void (and not recording of affidavit of reappearance which
is applicable only to a valid marriage) and the aggrieved spouse in the
prior marriage has the personality to file such petition.
iv) Effect of bad faith: (a) If the spouse present contracted the second
marriage in bad faith, the marriage is void for being bigamous
(because he did not have a well-founded belief that the absentee
spouse is already dead), even if the second spouse contracted the
marriage in good faith (Santos v. Santos); (b) If the spouse present
contracted the second marriage in good faith, the marriage is valid
even if the second spouse contracted the marriage in bad faith. Here,
upon the termination of the marriage either by recording of affidavit of
reappearance or judicial declaration of its termination, the second
spouse is disqualified to inherit from the other (either by testate or
intestate succession) and the donation propter nuptias in his favor is
revoked by operation of law; (c) If both parties contracted the marriage
in bad faith, the marriage is void (Art. 44, FC).

19. Absolute Community and Conjugal Partnership – Disposition or Encumbrance

(Arts. 96 and 124, FC)
a) Requirement: To be valid, both husband and wife must give their consent or
there must be court authorization. In the absence of consent by both spouses
or court authorization, the sale or mortgage is VOID IN ITS ENTIRETY. But
considered as a continuing offer.
b) For the buyer to invoke good faith: he must be able to prove that he exercised
due diligence: (1) in determining the validity of the title; and (2) in
ascertaining the capacity of the transacting spouse to represent the other
spouse. (Aggabao v. Parulan)
c) For conjugal partnership established under the Civil Code: If the sale by one
of the spouses without the consent of the other took place prior to the
effectivity of the FC, apply the rules under the Civil Code. Under the Civil
Code, the sale is not void but merely voidable and can be annulled within 10
years from the sale. If the sale took place after the effectivity of the FC, apply
the rule in Article 124 of the FC. Hence, the sale is void.

20. Absolute Commnuity and Conjugal Partnership --- When Terminated By Death
of One of the Spouses (Arts. 103 and 130, FC)
a) The surviving spouse has mandatory obligation to liquidate the property
regime within one year from the death of the deceased spouse.
b) Effect of failure to liquidate: (i) if surviving spouse contracts another
marriage, the second marriage shall be governed mandatorily by a regime of
complete separation; and (ii) any disposition or encumbrance of any
community or conjugal property is VOID IN ITS ENTIRETY.
 c) Rules for Conjugal Partnership Established Under the Civil Code: If conjugal
partnership still existed upon the effectivity of the FC and conjugal
partnership is terminated only during the FC, apply the rule in (b) above as
established in Article 130 of the FC. If conjugal partnership is already
terminated upon the effectivity of the FC, Article 130 cannot apply. Instead,
the sale by the surviving spouse without the consent of the children (co-
owners of the estate of the deceased) is not entirely void but will only affect
the ideal share of the selling co-owner in the co-ownership but without
affecting the ideal shares of the other co-owners who did not give their
consent. (Domingo v. Molina and Heirs of Go, Sr. v. Servacio)

21. Obligations of Absolute Community or Conjugal Partnership

a) these 3 obligations: (i) support of illegitimate children; (ii) ante-nuptial debt
which did not redound to the benefit of the family; and (iii) civil liability
arising from delict or quasi-delict, are chargeable to the separate property of
debtor-spouse.
b) However, if debtor-spouse does not sufficient property to pay for said
obligations, in absolute community, the property can be compelled to advance
the payment. In conjugal partnership, however, the conjugal partnership will
only become liable if the other obligations of the conjugal partnership are
already satisfied.

22. Article 147 and 148 of Family Code

a) Property regime applicable to: (i) void marriages (except a void marriage
under Article 40); and (ii) unions of man and woman without the benefit of
marriage
b) Void marriage: For void marriages under Articles 35(2), 35(3), 35(5), 35(6)
and 36, they are governed by the property regime under Article 147. For void
marriages under Articles 35(1), 35(4), 37, 38 and 44, they are governed by the
property regime under Article 148.
c) Unions without marriage: If exclusive cohabitation and parties are not
suffering from any impediment, property regime is that provided under
Article 147. If cohabitation is not exclusive, or even if exclusive but the
parties are not free to marry each other, property regime is that provided under
Article 148.
d) When Co-ownership exists for properties acquired during cohabitation: In
Article 147, if acquired thru joint efforts even if the effort of one is simply
maintenance of the household or taking care of the family. In Article 148, co-
ownership can only exist if both parties can prove ACTUAL
CONTRIBUTION in the form of money, property or industry. The manner of
registration of the property is immaterial.

23. Sale of Family Home Under Article 160 of FC

a) Family Home is not protected from claims mentioned in Article 155: (i) non-
payment of taxes; (ii) debts incurred prior to constitution of FH; (iii) debts
secured by the FH; and (iv) non-payment of wages in construction of FH or
non-payment of supplies in construction of FH.
b) But FH can be sold upon order of the court under Article 160, if the following
requisites are present: (i) judgment creditor is not one of those mentioned in
Article 155; (ii) at the time of the constitution, actual value of FH did not
exceed P300,000 in urban areas or P200,000 in rural areas; (iii) after
constitution, the actual value increased beyond P300,000 or P200,000, as the
case may be; and (iv) reason for the increase in value is “voluntary
improvement.” Voluntary improvement is by reason of any voluntary action
of any of the beneficiaries. (Eulogio v. Bell, Sr.)
c) If the reason for the increase is “involuntary improvement” (or an increase not
due to any voluntary action of the beneficiaries), the FH is still protected even
if its actual value already exceeded P300,000 or P200,0000, as the case may
be. (Eulogio v. Bell, Sr.)

24. Paternity and Filiation: Presumption of Legitimacy

 a) Any child conceived or born inside a valid marriage is presumed legitimate
(meaning child of the husband and the wife), even if the spouses are already
separated or even if the child is conceived or born by the wife in a bigamous
marriage.
b) If the husband is still alive, only the husband has the right to impugn the
child’s legitimacy: (i) the child’s mother cannot declare against the child’s
legitimacy; (ii) the paramour cannot admit his paternity over the child; and the
child cannot choose to be the child of someone else.
c) Upon the death of the husband, his heirs may exceptionally impugn the child’s
legitimacy in 2 situations: (i) if the prescriptive period has not yet expired; or
(ii) if the child is born only after the husband’s death.

25. Paternity and Filiation: Action to prove legitimate or illegitimate filiation filed by
the child
a) manner of proving and proof to be used, the same
b) the action must be filed during the lifetime of the child but the right is
transmitted to his heirs if the child dies during minority or in a state of
insanity.
c) The action may be filed by the child even after the death of the alleged parent,
except in action to prove illegitimate filiation using proof under paragraph 2
of Article 172 where the action is required to be filed during the lifetime of the
alleged parent, otherwise already barred.
d) Status and filiation cannot be the subject of a compromise agreement.

26. Paternity and Filiation: Birth certificate

a) General rule: A birth certificate is not a competent proof of filiation in the
absence of signature of the alleged parent. But signing using thumbprint is
allowed. (2016 jurisprudence)
b) Exception: Even if the birth certificate is not signed by the putative father, the
same is considered competent proof of filiation against him if he participated
in the preparation of the birth certificate either by: (i) supplying the
information in the birth certificate, including the fact of his paternity (Ilano v.
CA), or (ii) registering the birth certiticate in the civil registry (Arado v.
Alcoran).

27. Paternity and Filiation: Public and Private Instrument of Admission of Filiation
a) Public Instrument: The SSS Form E-1 (Personal Records of SSS member with
the SSS, where beneficiaries are named with statement of relationship with
said beneficiaries) is a public document of admission of filiation. (Aguilar v.
Siasat, Del Castillo case)
b) Private Instrument: To be competent proof, 2 requisites: (1) there must be
statement of admission of filiation; and (2) it must be signed.
c) Requirement of signature in private handwritten instrument of admission of
filiation: (a) where the private handwritten instrument is the lone piece of
evidence submitted to prove filiation, there should be strict compliance with
the requirement that the same must be signed by the acknowledging parent (if
not signed, not a competent proof of filiation); (b) where the private
handwritten instrument is accompanied by other relevant and competent
evidence, it suffices that the claim of filiation be shown to have been made
and handwritten by the acknowledging parent as it is merely corroborative of
such other evidence (competent proof even if not signed). (Dela Cruz v.
Gracia, reiterated in Aguilar v. Siasat)

28. Right of illegitimate child to use surname of illegitimate father

a) If not acknowledged by the father, he does not acquire the right to use the
father’s surname. He only has the right to use mother’s surname.
b) If acknowledged by the father in writing, child acquires the right to use the
father’s surname but the use of the father’s surname is not mandatory. The
right belongs to the child, he may choose not to use it. (Grande v. Antonio)
However, when the child is still a minor, the decision of whether to use the
father’s surname is within the ambit of the mother’s exercise of parental
 authority. Hence, the father cannot compel the mother to register the child
under his name.
c) The voluntary acknowledgment of paternity must be signed. Article 176 must
be read in conjunction with Articles 175 and 172 (Dela Cruz v. Gracia)

29. Requirement of Joint Adoption by spouses

a) Rule: If the adopter is married, requirement of joint adoption is mandatory,
even if the child to adopted is already of legal age.
b) Exceptions to requirement of joint adoption:
(1) If one is seeking to adopt the legitimate child of his/her spouse;
(2) If one is seeking to adopt his/her own illegitimate child, but the consent of
his/her spouse is mandatory. The other spouse must be served with
summons by personal service, otherwise the court does not acquire
jurisdiction over the adoption case. (Castro v. Gregorio)
(3) If the spouses are legally separated.

30. Retroactive effects of decree of adoption

a) For purposes beneficial to child: the effects of adoption decree retroact to the
day of filing of petition, even if adopters may have died prior to the issuance
of the decree.
b) No retroactive effect for the purpose of imposing liability to adopters for torts:
Adopting parents are not liable for the civil liability arising from delict or
quasi-delict committed by the adopted child during the time that adopting
parents had no actual custody over the child. The retroactive effects of the
decree of adoption cannot be applied in said situation. (Tamargo v. CA)

31. Effects of decree of adoption

a) Severance of legal ties: All legal ties between the biological parents and the
adopted child are severed. Included in these legal ties are parental authority,
visitation right and the tie which serves as the basis for legal support.
b) Effect of death of both adopters when adopted is still a minor: If both adopters
died during the minority of the adopted child, the legal ties between the
biological parents and the adopted child (which had been severed by the
adoption decree) are deemed to have been automatically restored, applying by
analogy Sec. 20 of the Domestic Adoption Act. (Bartolome v. SSS)

32. Support
a) Basis of support: The basis of support is simply the relationships mentioned in
Articles 195 and 196 of the Family Code, subject to the order of liability in
Article 199. Support is not based on parental authority. Hence, grandparents
will become liable for support to their grand children even if the parents are
still exercising their parental authority if the latter do not have the means to
provide support.
b) Manner of giving support: At the option of the giver, the support may either
be in the form of: (1) paying a fixed allowance; or (2) receiving and
maintaining in the family dwelling the person to be supported. However, the
giver may not choose option no. 2 if there is a legal or moral obstacle thereto.
Example: The wife left the family dwelling because he caught the husband in
an act of infidelity with the caregiver of her mother-in-law. Thereafter, the
wife demanded legal support for her minor children from the paternal
grandparents (because the husband does not have the means to provide
support). The Court ruled that the grandparents may not choose the second
option and compel the grand-children to go back to the family dwelling. Since
the grand-children are with their mother, they cannot be compelled to go back
to the house of the grand-parents because that will also be forcing their to go
back to the house which is the scene of the husband’s infidelity. The same,
according to the Court, amounted to a moral obstacle for choosing the second
option.

33. Parental Authority

 a) If child is legitimate: Both parents have parental authority over their minor
children. But in case of separation, the court should choose who should be
entitled to exercise parental authority. In all controversies involving the
custody of minor children, the paramount consideration is the best welfare of
the child, taking into account all relevant considerations (financial, emotional,
psychological, spiritual, choice of the child, etc.).
b) Tender-age presumption rule: If the age of the legitimate child is below seven
years old, the law mandates that the child should not be separated from the
mother unless the court finds compelling reasons to order otherwise. This rule
is mandatory and any agreement to the contrary is void. (Dacasin v. Dacasin)
c) If child is illegitimate: An illegitimate child is under the parental authority
only of the mother. Hence, an illegitimate father is not entitled to have custody
over the illegitimate child even if he admits his paternity. But an illegitimate
father is entitled to visitation rights.

34. Funerals
a) Rule: As to who shall have the duty and the right to make funeral
arrangements, the same follow the same order of liability established for
support in Article 199 of the Family Code (Art. 305, Civil Code). Thus, the
paramour does not have such right to make funeral arrangements over the
objection of the legal wife (Valino v. Adriano).
b) Wishes of the deceased: The funeral shall be in accordance with the wishes of
the deceased. However, for the wishes of the deceased to govern, it must be
embodied in a last will and testament. Likewise, said wishes may not
contravene the provisions of Article 305. Hence, the husband cannot validly
wish that he be buried in the family mausoleum of the paramour against the
wishes of his legitimate family. In other words, said wish cannot prevail over
the right and the duty of his loved ones under Article 305 to make the proper
funeral arrangements. (Valino v. Adriano)

B. PROPERTY

35. Public Dominion and Patrimonial Properties of the State

a) Distinctions: The first cannot be validly alienated, while the second can be
validly alienated. The first cannot be appropriated, while the second can be
appropriated by private individuals. Hence, the first may not be acquired thru
prescription, while the second may be acquired thru acquisitive prescription
(Heirs of Malabanan v. Republic, citing Article 1113 of the Civil Code). The
first cannot be validly subjected to attachment, levy, execution or force sale,
while the second can be validly attached, levied upon and sold at the auction.
The first cannot be burdened with voluntary easement, while the second can
be.
b) Distinctions between Sec. 14(1) and Sec. 14(2) of Property Registration
Decree: As to basis of grant of title: In Sec. 14(1), the basis is possession and
occupation of the land dating back to June 12, 1945 or earlier; in Sec. 14(2),
the basis is acquisitive prescription; As to applicable law: In Sec. 14(1), the
basis is the Public Land Act (CA No. 141); in Sec. 14(2), the basis is the Civil
Code; As to the property involved: Sec. 14(1) applies to agricultural lands of
the public domain declared alienable and disposable; Sec. 14(2) applies to
patrimonial lands of the State. In Sec. 14(1), the agricultural land is not
required to be declared alienable and disposable also as of June 12, 1945, it is
sufficient that it is already alienable and disposable at the time of the filing of
the application for registration (Heirs of Malabanan v. Republic). If all the
requisites of Sec. 14(1) are present, the land ceases to be part of the lands of
the public domain and is, by operation of law, converted into private property.
c) Conversion of agricultural lands into patrimonial: The fact that agricultural
lands have been declared alienable and disposable did not automatically
convert the same to patrimonial property. They remain to be properties of
public dominion. In order for said properties to be converted into patrimonial,
the following must be complied: (1) there must be an express declaration that
they are no longer intended for public use, public service and for the
 development of the national wealth or an express declaration of their
conversion into patrimonial; and (2) such express declaration must be in the
form of a law passed by Congress or in the form of a presidential
proclamation in cases where the President has been expressly authorized by
Congress to do so (Heirs of Malabanan v. Republic). Once the agricultural
land is converted into patrimonial, the applicant cannot, for purposes of
prescription, add the period of his possession of the property during the time
that said property was property of public dominion. This is because a property
of public dominion is not susceptible to prescription. Hence, the period of
prescription cannot run. (Heirs of Malabanan v. Republic)

36. Properties of Provinces, Cities and Municipalities

a) Can Congress deprive a province of its property without payment of just
compensation?: If the property is a property of public dominion (public
property), it belongs to the State and the province is merely a trustee of said
property. Hence, Congress has absolute control over said property. Congress
may deprive the province of said property and give it to someone else without
payment of just compensation. On the other hand, if the property is a
patrimonial property of the province, the latter cannot be deprived of the same
without payment of just compensation. (Sangguniang Panlalawigan of the
Province of Bataan v. Garcia)
b) How to classify property of LGUs: The properties of the LGUs are classified
in accordance with the actual use to which the property is devoted. If it is
actually being used for some public or governmental purpose, then it is
classified as a public property. If it is actually being used for some proprietary
or commercial purpose, then it is classified as a patrimonial property.
(Province of Zamboanga Del Norte v. City of Zamboanga)
c) Sangguniang Panlalawigan of the Province of Bataan v. Garcia: There were
two state-run schools in the Province of Bataan situated on lands registered in
the name of the province. The titles to said properties were used by the
province as collateral for its loan with Land Bank. Congress then passed a law
integrating the two schools to form a State College and transferred the
ownership of the properties (where the schools are situated) in favor of the
State College. Thereafter, the State College made a demand upon the province
for the surrender of the titles to the properties. The province questioned the
validity of the law contending that it was deprived of its properties without
payment of just compensation. RULING: The properties in question are
properties of public dominion of the province because they are actually being
used for some public purpose --- public education. Hence, Congress has
absolute control over said properties and it can give said properties to the State
College without need of paying the province just compensation.

37. Accession: Concept of Builders In Good Faith

a) Limited and Expanded definition of concept of builder in good faith: Under
the limited or traditional definition, the builder, at the time of the building,
believed himself to be the owner of the land because he has a title or mode of
acquisition in his favor over the land and he was ignorant of the existence of
any flaw or defect in his title or mode invalidating the same. Under the
expanded definition, the builder knew, at the time of the building, that he was
not the owner of the land but the construction was made with the express
consent or permission of the landowner. (Communities Cagayan, Inc. v.
Nanol, Del Castillo case)
b) Communities Cagayan, Inc. v. Nanol: The spouses purchased a house and lot
from a developer for a price of less than P500,000. The parties executed a
Contract to Sell. Upon delivery of the property to the buyers, they demolished
the original house and constructed a new house, with the express permission
of the developer, costing P3.5 Million. After several years of paying the
installments on the purchase price, the husband died and the widow failed to
continue the installments. The developer cancelled the Contract and demanded
for the return of the property. Are the buyers builders in good faith? The Court
held that since the construction of the new house was made with the consent
of the developer (landowner), the buyers were builders in good faith under the
 expanded definition of the said concept. Applying Article 448 of the Civil
Code, the developer has the following options: (1) to appropriate the new
house by paying its value, minus the value of the old house demolished by the
builders; or to (2) to compel the builders to buy the land.
c) Department of Education v. Casibang: The landowner allowed the Department
of Education to construct a public school on his property. Upon the death of
the landowner, his heirs demanded for the return of the land to them. Is the
Department of Education a builder in good faith? The Court held that even if
the Department of Education is a mere possessor by tolerance, it is
nonetheless a builder in good faith under the expanded definition of the
concept considering that the landowner expressly consented/permitted to the
construction of the school building. Applying Article 448 of the Civil Code,
the heirs of the landowner have two options under said law. However, since
the option of appropriation of the school building is not practicable, the Court
ordered the Department of Education to simply buy the land.
d) Sarmiento v. Agana and Padilla, Jr. v. Malicsi: In Sarmiento, the Court
applied the expanded definition even if the one who gave the permission for
the construction of the house turned out to be not the real owner of the land. In
Sarmiento, however, the one who gave such permission is a close relative of
the builder (they are parent and child). In Padilla, however, the one who gave
the permission (and who turned out to be not the real owner of the land) is a
total stranger to the builder. Here, the Court refused to apply the earlier ruling
in the Sarmiento case because the parties are totally strangers to each other.
The Court held in Padilla that the fact that the builder was a total stranger to
the one who gave the permission should have put the builder on guard. Hence,
he cannot claim to have acted in good faith.

38. Alluvium
a) Requisites in order for additional soil deposit to become private property: (1)
the process of depositing soil must be thru a gradual and imperceptible
process; (2) the process of depositing soil must be the exclusive work of
nature (otherwise, the additional soil deposit will remain to be property of
public dominion); and (3) the accretion must take place on rivers, creeks,
streams or lakes (if the accretion takes place on a sea, the additional soil
deposit becomes property of public dominion).
b) In alluvium, the water level is more or less maintained. If the land is formed
by reason of the recession of the water level from the river banks, the same is
not accretion, but simply a case of a river drying up. A dried-up river bed
belongs to the State. (Republic v. Santos III)
c) The lessee of a parcel of land bordering a creek noticed the downward slope
of the riprap constructed by the DPWH on the creek. He sought the
permission of the DPWH to fill the downward slope of the riprap to level it
with the leased premises. After he filled up said portion, he put up a beerhouse
on the property and sold the beerhouse to another person. When the lessor
learned that another person was occupying the adjacent property, he filed an
ejectment case against said occupant claiming that the filled up portion is an
integral part of his land being an accretion thereof. The Court ruled that said
portion cannot be considered an alluvium because the latter is required to be
the exclusive work of nature. (Daclison v. Baytion)

39. Voting Requirement in Co-ownership

a) Action in ejectment: Any one of the co-owners may bring an action in
ejectment, without joining the other co-owners. But the suit must be instituted
for the benefit of all. If the suit is brought only for the purpose of the plaintiff
co-owner who claims to be the sole owner, the action will not prosper. The
term “ejectment” includes all kinds of actions the purpose of which is
recovery of possession, including replevin, accion interdictal, accion
publiciana, accion reinvindicatoria and even an action for revival of judgment,
if the enforcement of the judgment will result in recovery of possession.
b) Repair for preservation: The act of repairing the co-owned property for the
purpose of preserving it may be made at the will of one of the co-owners,
without needing the consent of the others. After incurring the expense, he may
 demand proportionate contribution from the others. The others may choose
either: (1) to pay their proportionate contribution; or (2) to renounce so much
of their interest in the co-ownership corresponding to their share of the
expenses.
c) Expenses for improvement, expenses for embellishment, and act of
administration: To be decided by the majority. In co-ownership, majority
refers to the controlling interest.
d) Act of alteration: Unanimous consent of the co-owners is necessary. Allowing
a third to construct his house on the co-owned property is an act of alteration.
e) As to ideal share: A co-owner has absolute ownership over his ideal share. He
can alienate, encumber or lease it without need of getting the consent of the
other co-owners. Hence, a co-owner cannot be forced to sell his ideal share
(Arambulo v. Nolasco).

40. Prescription in Co-ownership

a) General rule: prescription does not lie in favor of a co-owner as against
another co-owner because the possession by a co-owner is for the benefit of
all. This rule applies only when the co-owner is still being recognized. From
the moment that the co-ownership is repudiated, prescription will commence
to run.
b) Requisites for effective repudiation of co-ownership: (1) he performed a clear
act of repudiation; (2) such act of repudiation is made known to the others; (3)
evidence thereon must be clear and convincing; and (4) his possession is open,
continuous, exclusive and notorious. Ordinarily, the cancellation of a title in
the name of all co-owners and replacing it with a new title in the name of only
one of the co-owners is a clear of repudiating the co-ownership. However,
such act does not effectively repudiate the co-ownership when he allowed
another co-owner to build his house on the co-owned property. (Vda. de
Figuracion v. Figuracion-Gerilla)
c) Partition: As a rule, a co-owner can demand partition at any time. Hence, an
action for partition is imprescriptible. This rule, however, applies only so long
as the co-ownership is still being recognized. From the moment that the co-
ownership is effectively repudiated, an action for partition that may be filed by
the others is, in reality, no longer for partition but for reconveyance of
property (recovery of their ideal shares), hence, subject to prescription.
d) If an earlier action for partition by a co-owner is dismissed for failure to
prosecute, the same cannot prevent the same from co-owner for demanding
partition. Between the procedural rule of dismissal with prejudice and the
substantive right of a co-owner to demand partition at any time, the latter must
prevail. (Quintos v. Nicolas)

41. Doctrine of irrevindicability of a movable:

a) Possession of a movable acquired in good faith is already equivalent to title.
This is the doctrine of irrevindicability. But this rule does not apply to cases
of: (1) lost movable and (2) unlawful deprivation of possession.
b) In case of a lost movable, the previous possessor can always recover the
possession of the movable from the finder. Even if the finder already sold the
movable to a third person who acted in good faith, the previous possessor can
still recover possession from such third person without need of returning the
price for which such third person had paid for the movable. The previous
possessor is required to return the price for which the third person had paid for
the movable only when the movable was acquired by the third person in good
faith at a public sale.
c) The term “unlawful deprivation” is not limited to cases of theft or robbery but
also includes cases of abuse of confidence. But in abuse of confidence, there is
no intent to make the delivery. The term “unlawful deprivation” cannot,
however, be over-stretched to include cases of valid sale (where there is intent
to make the delivery for the purpose of transferring ownership).
d) See Siy v. Tomlin (in the Mock Bar materials)

42. Nuisance Per Se and Nuisance Per Accidens

a) If the nuisance is always a nuisance under any and all conditions, it is a
nuisance per se. If the nuisance is not always a nuisance but will become a
nuisance depending only on the situation to which it is applied, it is a nuisance
per accidens.
b) Only a nuisance per se can be subjected to summary abatement. If the
nuisance is not a nuisance per se, it requires a judicial determination that it is
indeed a nuisance and only the court can order its abatement.
c) The LGU cannot, in the disguise of police power, cause the summary
abatement of a property, business or activity if the latter is not a nuisance per
se.
d) However, the Chief Local Executive (Mayor) has the power to cause the
demolition of illegal structure constructed without the requisite building
permit. Under the Local Government Code, Mayors were granted powers to
enforce the provisions of the National Building Code. Here, there is no need
for a judicial proceedings because the illegal structure is being demolished not
because it is a nuisance, but because of the violation of the National Building
Code. (Aquino v. Municipality of Malay, Aklan)