CIVIL LAW BAR EXAM ANSWERS: FAMILY CODE

Emancipation (1993)

Julio and Lea, both 18 years old, were sweethearts. At a party at the house of a mutual
friend. Lea met Jake, also 18 years old, who showed interest in her. Lea seemed to
entertain Jake because she danced with him many times. In a fit of jealousy, Julio shot
Jake with his father’s 38 caliber revolver which, before going to the party he was able to
get from the unlocked drawer inside his father’s bedroom. Jake died as a result of the
lone gunshot wound he sustained. His parents sued Julio’s parents for damages arising
from quasi-delict. At the time of the incident, Julio was 18 years old living with his
parents. Julio’s parents moved to dismiss the complaint against them claiming that
since Julio was already of majority age, they were no longer liable for his acts.

1)   Should the motion to dismiss be granted? Why?

2)  What is the liability of Julio’s parents to Jake’s parents? Explain your answer.

SUGGESTED ANSWER:

1)  No, the Motion to Dismiss should not be granted. Article 236 of the Family Code as
amended by Republic Act 6809, provides in the third paragraph that “nothing in this
Code shall be construed to derogate from the duty or responsibility of parents and
guardians for children and wards below twenty-one years of age mentioned in the
second and third paragraphs of Article 2180 of the Civil Code”.

2) The liability of Julio’s parents to Jake’s parents arises from quasi-delict   (Arts. 2176
and 2180 Civil Code) and shall cover specifically the following:

a)  P50,000.00 for the death of the son;

b)  such  amount  as  would  correspond  to  lost  earning capacity; and

c) moral damages.

Family Code; Retroactive Application; Vested Rights (2000)

On April 15, 1980, Rene and Angelina were married to each other without a marriage
settlement. In 1985, they acquired a parcel of land in Quezon City. On June 1, 1990,
when Angelina was away in Baguio, Rene sold the said lot to Marcelo. Is the sale void or
voidable?

SUGGESTED ANSWER:
The sale is void. Since the sale was executed in 1990, the Family Code is the law
applicable. Under Article 124 of the FC, the sale of a conjugal property by a spouse
without the consent of the other is void.

ALTERNATIVE ANSWER:

The sale is voidable. The provisions of the Family Code may apply retroactively but only
if such application will not impair vested rights. When Rene and Angelina got married in
1980, the law that governed their property relations was the New Civil Code. Under the
NCC, as interpreted by the Supreme Court in Heirs of Felipe v. Aldon, 100 SCRA
628 and reiterated in Heirs of Ayuste v. Malabonga, G.R. No. 118784, 2
September 1999, the sale executed by the husband
without the consent of the wife is voidable. The husband has already acquired a vested
right on the voidable nature of dispositions made without the consent of the wife.
Hence, Article 124 of the Family Code which makes the sale void does not apply.

Family Home; Dwelling House (1994)

In 1991, Victor established judicially out of conjugal property, a family home in Manila
worth P200.000.00 and extrajudicially a second family home in Tagaytay worth
P50.000.00. Victor leased the family home in Manila to a foreigner. Victor and his
family transferred to another house of his in Pasig.

Can the two family homes be the subject of execution on a judgment against Victor’s
wife for non-payment of the purchase in 1992 of household appliances?

SUGGESTED ANSWER:

The two (2) so-called family homes can be the subject of execution. Neither of the
abodes are considered family homes because for purposes of availing the benefits under
the Family Code, there can only be one (1) family home which is defined as the “dwelling
house” where the husband and the wife and their family actually “reside” and the land
on which it is situated. (Arts. 152 and 161, Family Code)

Family; Constitutional Mandates; Divorce (1991)

A.   How does the 1987   Constitution strengthen the family as an Institution?

B.  Do the Constitutional policy on the family and the provision that marriage is the
foundation of the family and shall be protected by the State bar Congress from enacting
a law allowing divorce in the Philippines?

SUGGESTED ANSWER:

A.   Sec, 2, Article II of the Constitution provides that: The State recognizes the sanctity
of family life and shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive the
support of the Government.

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

(Note: The Committee recommends that a citation of either one of the provisions be
credited as a complete answer).

SUGGESTED ANSWER:

B,   No, the Constitutional policy, as well as the supporting provision, does not amount
to a prohibition to Congress to enact a law on divorce. The Constitution only meant to
help the  marriage  endure,  to  “strengthen  its  solidarity  and actively promote its total
development.”

ALTERNATIVE ANSWER:

B.   Yes. Congress is barred from enacting a law allowing divorce, since Section 2 of
Article XV provides: “Sec. 2. Marriage,   as   an   inviolable   social   institution,   is   the
foundation  of  the  family  and  shall  be  protected  by  the State.” Since marriage is
“Inviolable”, it cannot be dissolved by an absolute divorce.

Marriage; Annulment; Effects; Requisites Before Marriage (1990)

The marriage of H and W was annulled by the competent court. Upon finality of the

judgment of nullity. H began looking for his prospective second mate. He fell in love
with a sexy woman S who wanted to be married as soon as possible, i.e., after a few
months of courtship. As a young lawyer, you were consulted by H,

(a)   How soon can H be joined in lawful wedlock to his girlfriend S? Under existing

laws, are there certain requisites that must be complied with before he can remarry?
What advice would you give H?

(b)  Suppose that children were born from the union of H and W, what would be the

status of said children? Explain your answer.

(c)    If the    subsequent    marriage    of  H    to    S    was contracted before compliance
with the statutory condition for its validity, what are the rights of the children of the first
marriage (i.e., of H and W) and of the children of the subsequent marriage (of H and S)?

SUGGESTED ANSWER:

(a) H, or either spouse for that matter, can marry again after complying with the
provisions of Article 52 of the Family Code, namely, there must be a partition and
distribution, of the  properties  of  the  spouses,  and  the  delivery  of  the children’s
presumptive legitimes which should be recorded in the appropriate civil registry and
registries of property. H should be so advised.

ALTERNATIVE ANSWER: for (a)

The following are the requisites prescribed by law and I advice H to comply with them,

namely:

1)     If either spouse contracted the marriage in bad faith, his or her share of the net

profits of the community property : or conjugal partnership property shall be forfeited
in favor of the common children or, if there are  none,  the  children  of  the  guilty
spouse  by  a previous  marriage  or,  in  default  of  children,  the innocent spouse;

2)    Donations  by  reason  of  marriage  shall  remain  valid except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked by
operation of law;

3)      The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession;

4)     If both spouses of the subsequent marriage acted in bad faith all donations by

reason of marriage and testamentary dispositions made by one in favor of the other are
revoked by operation of law.

5)    The  judgment  of  annulment  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 registers of property, (Articles 53,
52, 43, 44, Family Code).

SUGGESTED ANSWER:

(b) The children born from the union of H and W would be legitimate children if
conceived or born before the decree of annulment of the marriage (under Art. 45 of the
Family Code) has become final and executory  (Art. 54, Family Code).

SUGGESTED ANSWER:

(c) The children of the first marriage shall be considered legitimate   children   if  
conceived   or   born   before   the Judgment of annulment of the marriage of H and W
has become final and executory. Children conceived or born of the subsequent marriage
shall likewise be legitimate even if the marriage of H and S be null and void for failure to
comply with the requisites of Article 52 of the Family Code (Article 53, Family Code).

As legitimate children, they have the following rights;

a)    To bear the surnames of the father and the mother in  conformity  with  the
provisions  of  the  Civil Code on Surnames;

b)  To receive support from their parents, their ascendants, and in proper cases, their
brothers and sisters, in conformity with the provisions of this Code on Support; and

c)    To   be   entitled   to   the   legitime   and   other successional rights granted to them
by the Civil Code (Article 174, Family Code).

Marriage;  Annulment; Grounds (1991)

One of the grounds for annulment of marriage is that either party, at the time 
of their marriage  was  afflicted  with a sexually-transmissible disease, found to be
serious and appears incurable. Two (2) years after their marriage, which took place on
10 October 1988, Bethel discovered that her husband James has a sexually-
transmissible disease which he contracted even prior to their marriage although James
did not know it himself until he was examined two [2) years later when a child was
already born to them.   Bethel sues James for annulment of their marriage. James
opposes the annulment on the ground that he did not even know that he had such a
disease so that there was no fraud or bad faith on his part. Decide.

B.   Suppose that both parties at the time of their marriage were similarly afflicted with
sexually-transmissible diseases, serious and incurable, and both knew of their respective
infirmities, can Bethel or James sue for annulment of their marriage?

SUGGESTED ANSWER:

A.   The marriage can be annulled, because good faith is not a defense when the ground
is based upon sexually- transmissible disease on the part of either party.

SUGGESTED ANSWER:

B.   Yes, the marriage can still be annulled because the fact that both of them are
afflicted with sexually-transmissible diseases does not efface or nullity the ground.

Alternative Answer:

B. No, the marriage can no longer be annulled, because the fact that both were afflicted
and that both knew of their respective infirmities constitutes a waiver of that ground.

Marriage; Annulment; Judicial Declaration (1993)

Maria and Luis, both Filipinos, were married by a Catholic priest in Lourdes Church,
Quezon City in 1976, Luis was drunk on the day of his wedding. In fact, he slumped at
the altar soon after the ceremony. After marriage, Luis never had a steady job because
he was drunk most of the time. Finally, he could not get employed at all because of
drunkenness. Hence, it was Maria who had to earn a living to support herself and her
child begotten with Luis. In 1986, Maria filed a petition in the church matrimonial court
in Quezon City to annul her marriage with Luis on the ground of psychological
incapacity to comply with his marital obligation. Her petition was granted by the church
matrimonial court.

1)     Can Maria now get married legally to another man under  Philippine  laws  after

her  marriage  to  Luis  was annulled by the church matrimonial court?  Explain.

2)   What must Maria do to enable her to get married lawfully to another man under
Philippine laws?

SUGGESTED ANSWER:

1)   No, Maria cannot validly contract a subsequent marriage without a court declaration
of nullity of the first marriage. The law does not recognize the church declaration of
nullity of a marriage.

2)   To enable Maria to get married lawfully to another man. she must obtain a judicial
declaration of nullity of the prior marriage under Article 36 Family Code.

Marriage;  Annulment;  Legal  Separation;  Prescription  of Actions (1996)

2)   Bert and Baby were married to each other on December 23, 1988. Six months later,
she discovered that he was a drug addict. Efforts to have him rehabilitated were
unsuccessful. Can   Baby   ask   for   annulment   of   marriage,   or   legal separation?
Explain.

SUGGESTED ANSWER:

No, Baby cannot ask for annulment of her marriage or for legal separation because both
these actions had already prescribed.

While concealment of drug addiction existing at the time of marriage constitutes fraud

under Art. 46 of the FC which makes the marriage voidable under Art. 45 of the FC, the
action must, however, be brought within 5 years from the discovery thereof under
Article 47 (3) , FC, Since the drug addiction of Bert was discovered by Baby in
June 1989, the action had already prescribed in June of 1994.

Although drug addiction is a ground for legal separation under Art. 55(5) and Art. 57 of
the FC requires that the action must be brought within 5 years from the occurrence of
the cause. Since Bert had been a drug addict from the time of the celebration of the
marriage, the action for legal separation  must  have  been  brought  not  later  than
23 December 1993. Hence, Baby cannot, now, bring the action for legal separation.

Marriage; Annulment; Proper Party (1990)

D  and  G,  age  20  and  19,  respectively,  and  both  single, eloped  and  got  married  to
each  other  without  parental consent in the case of G, a teenaged student of an
exclusive college for girls. Three years later, her parents wanted to seek judicial
annulment on that ground. You were consulted and asked to prepare the proper
complaint. What advice would you give G’s parents? Explain your answer.

 SUGGESTED ANSWER:

G himself should file the complaint under Article 45 of the Family  Code,  and  no
longer  the  parents  because  G  is already 22 years of age.

Marriage; Annulment; Proper Party (1995)

Yvette was found to be positive for HIV virus, considered sexually transmissible, serious
and incurable. Her boyfriend Joseph was aware of her condition and yet married her.
After two (2) years of cohabiting with Yvette, and in his belief that she would probably
never be able to bear him a healthy child, Joseph now wants to have his marriage with
Yvette annulled. Yvette opposes the suit contending that Joseph  is  estopped  from 
seeking  annulment  of  their marriage since he knew even before their marriage that she
was afflicted with HIV virus.

Can the action of Joseph for annulment of his marriage

with Yvette prosper? Discuss fully.

SUGGESTED ANSWER:

No, Joseph knew that Yvette was HIV positive at the time of the marriage. He is,
therefore, not an injured party. The FC gives the right to annul the marriage only to an
injured party. [Art. 47 (5), FC]

ALTERNATIVE ANSWER:

The action for annulment can prosper because the prescriptive period of five (5) years
has not yet lapsed. [Art. 45 (6), FC].

Marriage; Divorce Decree; Void Marriages (1992)

In 1989, Maris, a Filipino citizen, married her boss Johnson, an American citizen, in
Tokyo in a wedding ceremony celebrated according to Japanese laws. One year later,
Johnson returned to his native Nevada, and he validly obtained in that state an absolute
divorce from his wife Maris.

After  Maris  received  the  final  judgment  of  divorce,  she married her childhood

sweetheart Pedro, also a Filipino citizen, in a religious ceremony in Cebu City,
celebrated according to the formalities of Philippine law. Pedro later left for the United
States and became naturalized as an American  citizen.  Maris  followed  Pedro  to  the
United States, and after a serious quarrel, Marts filed a suit and obtained a divorce
decree issued by the court in the state of Maryland.

Maris then returned to the Philippines and in a civil ceremony celebrated in Cebu City
according to the formalities of Philippine law, she married her former classmate Vincent
likewise a Filipino citizen.

b)  Was the marriage of Maris and Pedro valid when celebrated?  Is  their  marriage  still
valid  existing  now? Reasons.

c)  Was  the  marriage  of  Marts  and  Vincent  valid  when celebrated? Is their marriage

still validly existing now? Reasons.

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

SUGGESTED ANSWER:

(b)     The marriage of Maris and Pedro was valid when celebrated because the divorce
validly obtained by Johnson in Manila capacitated Maris to marry Pedro. The marriage
of Maris and Pedro is still validly existing, because the marriage has not been validly
dissolved by the Maryland divorce [Art. 26, Family Code).

(c)   The marriage of Maris and Vincent is void ab initio because  it  is  a  bigamous 
marriage  contracted  by  Maris during the subsistence of her marriage with Pedro (Art
25 and 41, Family Code).

The marriage of Maris and Vincent does not validly exist because  Article  26  does  not
apply.  Pedro  was  not  a foreigner at the time of his marriage with marts and the
divorce abroad (in Maryland) was initiated and obtained not by the alien spouse, but by
the Filipino spouse. Hence, the Maryland   divorce   did   not  capacitate   Marts   to  
marry Vincent.

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

Marriage; Divorce Decrees; Filiation of Children (2005)

In  1985,  Sonny  and  Lulu,  both  Filipino  citizens,  were married in the Philippines. In

1987, they separated, and Sonny went to Canada, where he obtained a divorce in the
same  year.  He  then married another Filipina,  Auring,  in Canada on January 1,1988.
They had two sons, James and John.  In  1990,  after  failing  to  hear  from  Sonny,  Lulu
married Tirso, by whom she had a daughter, Verna. In 1991, Sonny visited the
Philippines where he succumbed to heart attack.

a) Discuss the effect of the divorce obtained by Sonny and Lulu in Canada.

SUGGESTED ANSWER:
The divorce is not valid. Philippine law does not provide for absolute divorce. Philippine
courts cannot grant it. A marriage between two (2) Filipinos cannot be dissolved by a
divorce obtained abroad. (Garcia v. Redo, G.R. No. 138322, October 2,2001).
Philippine laws apply to Sonny and Lulu. Under Article 15 of the New Civil Code, laws
relating to family rights and duties, status, and capacity of persons are binding upon
citizens of the Philippines wherever they may be. Thus, the marriage of Sonny and Lulu
is still valid and subsisting.

b)     Explain the status of marriage between Sonny and Auring.

SUGGESTED ANSWER:

Since the decree of divorce obtained by Lulu and Sony in Canada is not recognized here
in the Philippines, the marriage  between  Sonny  and  Auring  is  void.  (Art.  35, Family
Code) Any marriage subsequently contracted during the lifetime of the first spouse shall
be illegal and void, subject only to the exception in the cases of absence or where the
prior marriage was dissolved or
annulled. (Ninal v. Bayadog, G.R. No. 133778, March 14, 2000)The marriage of
Sonny and Auring does not fall within the exception.

c) Explain the status of the marriage between Lulu and Tirso.

SUGGESTED ANSWER:

The marriage of Lulu and Tirso is also void. Mere absence of the spouse does not give
rise to a right of the present spouse to remarry. Article 41 of the Family Code provides
for a valid bigamous marriage only where a spouse has been absent  for  four
consecutive  years  before  the  second marriage and the present spouse had a well-
founded belief that the absent spouse is already dead. (Republic v. Nolasco, G.R. No.
94053, March 17, 1993)

d) Explain the respective filiation of James, John and Verna.

SUGGESTED ANSWER:

James, John and Verna are illegitimate children since their parents are not validly
married. Under Article 165 of the Family Code, children conceived and born outside a
valid marriage are illegitimate, unless otherwise provided in this Code.

e) Who are the heirs of Sonny? Explain.

SUGGESTED ANSWER:

Sonny’s heirs include James, John, and Lulu. Article 887 of the Civil Code provides that
the compulsory heirs of the deceased are among others, his widow and his illegitimate
children. The widow referred to in Article 887 is the legal wife  of  the  deceased.  Lulu  is
still  a  compulsory  heir  of Sonny because the divorce obtained by Sonny in Canada
cannot be recognized in the Philippines. The legitime of each  illegitimate  child  shall 
consist  of  one-half  of  the legitime of a legitimate child. (Art. 176, Family Code)

Marriage;   Divorce  Decrees;  Filipino   Spouses  becoming Alien (1996)

Flor and Virgillo were married to each other in Roxas City in  198O.  In  1984,  Flor  was
offered  a  teaching  Job  in Canada, which she accepted. In 1989, she applied for and
was granted Canadian citizenship. The following year, she sued for divorce from Virgilio
in a Canadian court. After Virgilio was served with summons, the Canadian court tried
the case and decreed the divorce. Shortly thereafter, Flor married a Canadian.

Can  Virgilio  marry  again  in  the  Philippines?  Explain.

SUGGESTED ANSWER:

No, Virgilio cannot validly remarry. His case is not covered by Article 26 of the Family
Code, For said Article to be applicable, the spouse who filed for divorce must be a
foreigner at the time of the marriage. Since both of them were Filipinos at the time of
the marriage, the divorce obtained by Flor did not capacitate Virgilio to remarry. The
fact that Flor was already an alien at the time she obtained the divorce does not give
Virgilio the capacity to remarry under Philippine Law.

ALTERNATIVE ANSWERS:

a)   Yes, Virgilio can validly remarry. Art. 26 of the FC, merely States the alien spouse
without taking into consideration his or her nationality at the time of the marriage.
While his case is not covered by the letter of Article 26 FC, it is, however, covered by the
spirit of said Article, the injustice to the Filipino spouse sought to be cured by said
Article is present in this case. (Department of Justice Opinion No. 134 Series of 1993).

b)     Although the marriage originally involved Filipino citizens, it eventually became a
marriage between an alien and a Filipino after Flor became a Canadian citizen. Thus, the
divorce decree was one obtained by an alien spouse married  to  a  Filipino.  Although
nothing  is  said  about whether such divorce did capacitate Flor to remarry, that fact
may as well be assumed since the problem states that she married a Canadian shortly
after obtaining the divorce. Hence, Virgillo can marry again under Philippine law,
pursuant to Art. 26. FC which applies because Flor was already an alien at the time of
the divorce.

Marriage;   Divorce  Decrees;  Filipino   Spouses  becoming Alien (1999)

Ben and Eva were both Filipino citizens at the time of their marriage in 1967, When

their marriage turned sour, Ben went to a small country in Europe, got himself
naturalized there, and then divorced Eva in accordance with the law of that country,
Later, he returned to the Philippines with his new wife.
Eva now wants to know what action or actions she can file against Ben. She also wants
to know if she can likewise marry again. What advice can you give her?

SUGGESTED ANSWER:

Considering that Art. 26 (2nd par.) contemplates a divorce between a foreigner and a
Filipino, who had such respective nationalities at the time of their marriage, the divorce
in Europe will not capacitate the Filipino wife to remarry. The advice we can give her is
either to file a petition for legal separation, on the ground of sexual infidelity and of
contracting a bigamous marriage abroad, or to file a petition to dissolve the conjugal
partnership or absolute community of property as the case maybe.

ALTERNATIVE ANSWER:

Eva may file an action for legal separation on the grounds of sexual infidelity of her
husband and the contracting by her husband of a bigamous marriage abroad.

She may remarry. While a strict interpretation of Article 26 of the Family Code would
capacitate a Filipino spouse to remarry only when the other spouse was a foreigner at
the time of the marriage, the DOJ has issued an opinion (Opinion 134 s. of 1993) that
the same injustice sought to be cured by Article 26 is present in the case of spouses who
were  both Filipino at  the  time  of  the  marriage  but  one became an alien
subsequently. Said injustice is the anomaly of Eva remaining married to her husband
who is no longer married to her. Hence, said Opinion makes Article 26 applicable to her
case and the divorce obtained abroad by her  former  Filipino  husband  would 
capacitate  her  to remarry. To contract a subsequent marriage, all she needs to do is
present to the civil registrar the decree of divorce when she applies for a marriage
license under Article 13 of the Family Code.

Marriage;   Donations  by  Reason  of  Marriage;   Effect  of Declaration of

Nullity (1996)

1)  On the  occasion of  Digna’s  marriage  to George, 

her father  gave  her  a  donation  propter  nuptias  of  a  car. Subsequently, the marriage
was annulled because of the psychological immaturity of George.

May Digna’s father revoke the donation and get back the car? Explain.

SUGGESTED ANSWER:

No, Digna’s father may not revoke the donation because Digna  was  not  in  bad  faith, 
applying  Art.  86 (3)  of  the Family Code.

ALTERNATIVE ANSWER:

a)  Yes, the donation is revocable. Since the ground for the annulment of the marriage is
the psychological immaturity of George, the judgment was in the nature of a declaration
of nullity under Art. 36 of the FC and, therefore, the donation may be revoked under Art.
86( 1) of the FC for the reason that the marriage has been judicially declared void ab
initio.

ALTERNATIVE ANSWER:

b)   No, the donation cannot be revoked. The law provides that a donation by reason of
marriage may be revoked by the donor if among other cases, the marriage is judicially
declared void ab initio [par. (1) Art. 86. Family Code], or when the marriage is annulled
and the donee acted in bad faith  [par.  (3),  Id.].  Since  the  problem  states  that  the
marriage was annulled and there is no intimation of bad faith on the part of the donee
Digna, the conclusion is that the donor cannot revoke the donation.

ALTERNATIVE ANSWER:

c) Yes, the donation can be revoked. The ground used in dissolving the marriage was the
psychological immaturity of George, which is not a ground for annulment of marriage. If
this term is equated with psychological incapacity as used in Art. 36 of the Family Code,
then it is a ground for declaration of nullity of the marriage. Consequently, par. (1) of
Art. 86, FC, is the applicable law. Since Art. 86 of the FC makes no qualification as to
who furnished the ground or who was in bad faith in connection with the nullification
of the marriage, the conclusion is that Digna’s father may revoke the donation and get
back the car.

Marriage;   Grounds;  Declaration   of  Nullity:   Annulment: Legal

Separation: Separation of Property (2003)

Which  of  the  following  remedies,  i.e.,  (a)  declaration  of nullity of marriage, (b)

annulment of marriage, (c) legal separation, and/or (d) separation of property, can an
aggrieved spouse avail himself/herself of-

(i)       If  the  wife  discovers  after  the  marriage  that  her husband has “AIDS”.

(ii)    If the wife goes (to) abroad to work as a nurse and refuses to come home after the

expiration of her three-year contract there.

(iii)    If the husband discovers after the marriage that his wife has been a prostitute
before they got married.

(iv) If the husband has a serious affair with his secretary and refuses to stop
notwithstanding advice from relatives and friends.

(v)    If  the  husband  beats  up  his  wife  every  time  he comes home drunk.

SUGGESTED ANSWER:
(i)           Since  AIDS  is a  serious and incurable  sexually- transmissible disease, the wife
may file an action for annulment of the marriage on this ground whether such fact
was  concealed  or  not  from  the  wife,  provided  that  the disease  was  present  at  the 
time  of  the  marriage.  The marriage  is  voidable  even  though  the  husband  was  not
aware that he had the disease at the time of marriage.

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

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

(iv)     The wife may file an action for legal separation. The husband’s sexual
infidelity is a ground for legal separation 9Article 55, FC). She may also file
an action for judicial separation of property for failure of her husband to
comply with his martial duty of fidelity (Article 135 (4), 101, FC).

(v)          The wife may file an action for legal separation on the ground of repeated
physical violence on her person (Article 55 (1), FC). She may also file an action for
judicial separation of property for failure of the husband to comply with his
marital duty of mutual respect (Article 135 (4), Article 101, FC). She may also file
an action for declaration of  nullity   of  the  marriage  if  the  husband’s  behavior
constitute psychological incapacity existing at the time of the celebration of marriage.

Marriage;  Grounds; Nullity;  Annulment; Legal  Separation (1997)

Under what conditions, respectively, may drug addiction be a ground, if at all, (a) for a

declaration of nullity of marriage, (b) for an annulment of the marriage contract, and (c)
for legal separation between the spouses?

SUGGESTED ANSWER:

(a)  Declaration of nullity of marriage:

1)  The drug addiction must amount to psychological incapacity to comply with the

essential obligations of marriage;

2)    It  must  be  antecedent  (existing  at  the  time  of marriage), grave and incurable:
3)   The  case  must  be  filed  before  August  1,  1998.

Because if they got married before August 3, 1998, it must be filed before August 1, 1998.

(b)  Annulment of the Marriage Contract:

1)    The drug addiction must be concealed;

2)    It must exist at the time of marriage;

3)   There   should   be   no   cohabitation   with   full knowledge of the drug addiction;

4)    The  case  is  filed  within  five  (5)  years  from discovery.

(c) Legal Separation:

1)    There should be no condonation or consent to the drug addiction;

2)    The action must be filed within five (5) years from the occurrence of the cause.

3)    Drug addiction arises during the marriage and not at the time of marriage.

Marriage; Legal Separation; Declaration of Nullity (2002)

If   drug   addiction,   habitual   alcoholism,   lesbianism   

or homosexuality  should  occur  only  during  the  marriage, would this constitute
grounds for a declaration of nullity or for legal separation, or would they render the
marriage voidable?

SUGGESTED ANSWER:

In accordance with law, if drug addiction, habitual alcoholism, lesbianism or

homosexuality should occur only during the marriage, they:

a)    Will not constitute as ground for declaration of nullity (Art. 36, Family Code);

b)   Will constitute as grounds for legal separation (Art. 56, FC) and

c)    will not constitute as grounds to render the marriage voidable (Art.45and 46, FC)

Marriage;  Legal Separation;  Grounds; Prescriptive Period (1994)

Rosa and  Ariel  were married  in the  Catholic  Church of Tarlac, Tarlac on January 5.

1988. In 1990, Ariel went to Saudi Arabia to work. There, after being converted into
Islam, Ariel married Mystica, Rosa learned of the second marriage of Ariel on January 1,
1992 when Ariel returned to the Philippines with Mystica. Rosa filed an action for legal
separation on February 5, 1994,

1)  Does Rosa have legal grounds to ask for legal separation?

2)  Has the action prescribed?

SUGGESTED ANSWER:

1)   a) Yes, the abandonment of Rosa by Ariel for more than one (1) year is a ground for
legal separation unless upon returning to the Philippines, Rosa agrees to cohabit with
Ariel which is allowed under the Muslim Code. In this case, there is condonation.

b) Yes. The contracting of a subsequent bigamous marriage whether in the Philippines

or abroad is a ground for legal separation under Article 55(7) of the Family Code.
Whether the second marriage is valid or not, Ariel having converted into Islam, is
immaterial.

SUGGESTED ANSWER:

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

Marriage; Legal Separation; Mutual guilt (2006)

Saul, a married man, had an adulterous relation with Tessie. In one of the trysts, Saul’s

wife, Cecile, caught them in flagrante. Armed with a gun, Cecile shot Saul in a fit of
extreme jealousy, nearly killing him. Four (4) years after the incident,  Saul filed an
action for legal separation against Cecile on the ground that she attempted to kill him.

(1)   If you were Saul’s counsel, how will you argue his case?

SUGGESTED ANSWER:

As the counsel of Saul, I will argue that an attempt by the wife against the life of the
husband is one of the grounds enumerated by the Family Code for legal separation and
there is no need for criminal conviction for the ground to be invoked (Art. 55, par. 9,
Family Code).

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

SUGGESTED ANSWER:

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

(3)    If you were the judge, how will you decide the case?

SUGGESTED ANSWER:

If I were the judge, I will dismiss the action on the ground of mutual guilt of the parties.
The Philippine Constitution protects  marriage  as  an  inviolable  social  institution 
(Art. XV,  Sec.  2,  1987  Constitution).  An  action  for  legal separation  involves  public 
interest  and  no  such  decree should be issued if any legal obstacle thereto appears on
record. This is in line with the policy that in case of doubt, the court shall uphold the
validity and sanctity of marriage (Brown v. Yambao, G.R. No. L-
10699, October 18, 1957).

Marriage; Non-Bigamous Marriages (2006)

Marvin, a Filipino, and Shelley, an American, both residents of California, decided to get

married in their local parish. Two years after their marriage, Shelley obtained a divorce
in California. While in Boracay, Marvin met Manel, a Filipina, who was vacationing
there. Marvin fell in love with her. After a brief courtship and complying with all the
requirements, they got married in Hongkong to avoid publicity, it being Marvin’s second
marriage. Is his marriage to Manel valid? Explain.

SUGGESTED ANSWER:

Yes.  The  marriage  will  not  fall  under  Art.  35(4)  of  the Family Code on bigamous
marriages, provided that Shelley obtained an absolute divorce, capacitating her to
remarry under her national law. Consequently, the marriage between Marvin and Manel
may be valid as long as it was solemnized and valid in accordance with the laws of
Hongkong [Art. 26, paragraphs 1 and 2, Family Code].

Marriage; Property Relations; Void Marriages (1991)

In June 1985, James married Mary. In September 1988, he also married Ophelia with
whom he begot two (2) children, A and B. In July 1989, Mary died. In July 1990, he
married Shirley and abandoned Ophelia, During their union. James and Ophelia
acquired a residential lot worth P300,000.00.

Ophelia sues James for bigamy and prays that his marriage with Shirley be declared null
and void. James, on the other hand, claims that since his marriage to Ophelia was
contracted during the existence of his marriage with Mary, the former is not binding
upon him, the same being void ab initio he further claims that his marriage to Shirley is
valid and binding as he was already legally capacitated at the time he married her.

a)    Is the contention of James correct?

b)   What property Relations governed the union of James and Ophelia?

c)    Is  the  estate  of  Mary  entitled  to  a  share  in  the residential lot acquired by James

and Ophelia?

SUGGESTED ANSWER:

A. Yes. His marriage to Ophelia is void ab initio because of his  subsisting  prior
marriage  to  Mary.  His  marriage  to Shirley, after Mary’s death, is valid and binding.

ALTERNATIVE ANSWER:

A.  No. The contention of James is not correct.

Art. 40, Family Code, provides that 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.” It can be said, therefore, that the marriage of James to Shirley
is void since his previous marriage to Ophelia, although itself void, had not yet been
judicially declared void,

ALTERNATIVE ANSWER:

A.     No.   The contention of James is not correct.   He cannot set up as a defense his own
criminal act or wrongdoing.

SUGGESTED ANSWER:

B.   The provisions of Art 148 of the Family Code, shall govern: Art. 148. In cases of
cohabitation not falling under the preceding Article, only the properties acquired by
both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective
contributions. In the absence, of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same rule and presumption shall
apply to joint deposits of money and evidences of credit.

SUGGESTED ANSWER:

C.     It should be distinguished when the property was acquired.

•      If it was acquired before Mary’s death, the estate of Mary is entitled to 1/2 of the
share of James.

•      If it was acquired after Mary’s death, there will be no share at all for the estate of
Mary.

Marriage; Psychological Incapacity (1996)

On April 15, 1983, Jose, an engineer, and Marina, a nurse, were married to each other in
a civil ceremony in Boac, Marinduque. Six months after their marriage, Jose was
employed in an oil refinery in Saudi Arabia for a period of three years. When he
returned to the Philippines, Marina was no longer living in their house, but in
Zamboanga City, working in a hospital. He asked her to come home, but she refused to
do so, unless he agreed not to work overseas anymore because she cannot stand living
alone. He could not agree as in fact, he had signed another three year contract. When he
returned in 1989, he could not locate Marina anymore. In 1992, Jose filed an action
served by publication in a newspaper of general circulation. Marina did not file any
answer, a possible collusion between the parties was ruled out by the Public Prosecutor.
Trial was conducted and Marina neither appeared nor presented evidence in her favor.

If  you  were  the  judge,  will  you  grant  the  annulment. Explain.

SUGGESTED ANSWER:

As judge, I will not grant the annulment. The facts do not show any taint of personality
disorder on the part of the wife Marina so as to lend substance to her husband’s
averment of psychological incapacity within the meaning of Art 36 of the Family Code.
In Santos vs. CA (240 SCRA 20), this particular ground for nullity of marriage was
held to be limited  only  to  the  most  serious  cases  of  personality disorders (clearly
demonstrative of utter sensitivity or inability to give meaning and significance to the
marriage. Marina’s refusal to come home to her husband unless he agreed not to work
overseas, far from being indicative of an insensitivity to the meaning of marriage, or of a
personality disorder, actually shows a sensitive awareness on her part of the marital
duty to live together as husband and wife. Mere refusal to rejoin her husband when he
did not accept the condition imposed by her does not furnish any basis for concluding
that she was suffering from psychological incapacity to discharge the essential marital
obligations.

Mere intention to live apart does not fall under Art. 36, FC. Furthermore,  there  is  no 
proof  that  the  alleged psychological incapacity existed at the time of the marriage.

Marriage; Psychological Incapacity (2006)

Gemma filed a petition for the declaration of nullity of her marriage with Arnell on the
ground of psychological incapacity. She alleged that after 2 months of their marriage,
Arnell showed signs of disinterest in her, neglected her and went abroad. He returned to
the Philippines after 3 years but did not even get in touch with her. Worse, they met
several times in social functions but he snubbed her. When she got sick, he did not visit
her even if he knew of her confinement in the hospital. Meanwhile, Arnell met an
accident which disabled him from reporting for work and earning a living to support
himself.

Will Gemma’s suit prosper? Explain.

SUGGESTED ANSWER:
No, Gemma’s suit will not prosper. Even if taken as true, the grounds, singly or
collectively, do not constitute “psychological incapacity.” In Santos v. CA, G.R. No.
112019, January 4, 1995, the Supreme Court clearly explained that “psychological 
incapacity  must  be  characterized  by  (a) gravity, (b) juridical antecedence, and (c)
incurability” (Ferraris v. Ferraris, G.R. No. 162368, July 17, 2006; Choa v.
Choa, G.R. No. 143376, November 26, 2002). The illness must be shown as
downright incapacity or inability to perform  one’s  marital  obligations,  not  a  mere 
refusal, neglect, difficulty or much less, ill will. Moreover, as ruled
in Republic v. Molina, G.R. No.108763, February 13,1997, it is essential that the
husband is capable of meeting his marital responsibilities due to psychological and not
physical illness (Antonio v.Reyes, G.R.No.155800, March 10,2006; Republic v.
Quintero-Hamano, G.R. No. 149498, May 20, 2004). Furthermore, the
condition complained of did not exist at the time of the celebration of marriage.

Marriage; Psychological Incapacity (2006)

Article  36  of  the  Family  Code  provides  that  a  marriage contracted by any party

who, at the time of the celebration, was   psychologically   incapacitated   to   comply   
with   the essential marital obligations of marriage, shall be void. Choose  the  spouse
listed  below  who  is  psychologically incapacitated. Explain.

a)    Nagger

b)    Gay or Lesbian

c)    Congenital sexual pervert

d)    Gambler e)     Alcoholic

SUGGESTED ANSWER: The best answers are B and C. To be sure, the existence and
concealment of these conditions at the inception of marriage renders the marriage
contract voidable (Art. 46, Family Code). They may serve as indicia of psychological
incapacity, depending on the degree and severity of the
disorder (Santos v. CA, G.R. No. 112019, Jan. 4,   1995).   Hence,   if   the   
condition   of   homosexuality, lesbianism or sexual perversion, existing at the inception
of the marriage, is of such a degree as to prevent any form of sexual intimacy, any of
them may qualify as a ground for psychological incapacity. The law provides that the
husband and wife are obliged to live together, observe mutual love, respect and fidelity
(Art. 68, Family Code). The mandate is actually the spontaneous, mutual affection
between the spouses. In the natural order it is sexual intimacy which brings the spouses
wholeness and oneness (Chi Ming Tsoi v. CA, G.R.No.119190, January 16,1997).

ALTERNATIVE ANSWER:

None of them are necessarily psychologically incapacitated. Being a nagger, etc. are at
best only physical manifestations indicative of psychological incapacity. More than just
showing  the  manifestations  of  incapacity,  the  petitioner must show that the
respondent is incapacitated to comply with the essential marital obligations of marriage
and that it is also essential that he must be shown to be incapable of doing so due to
some psychological, not physical illness (Republic v. Quintero-
Hamano, G.R. No. 149498, May 20, 2004).

ALTERNATIVE ANSWER:

A congenital sexual pervert may be psychologically incapaci- tated if his perversion

incapacitates him from discharging his marital obligations. For instance, if his
perversion is of such a nature as to preclude any normal sexual activity with his spouse.

Marriage; Requisites (1995)

Isidro  and  Irma,  Filipinos,  both  18  years  of  age,  were
passengers of Flight No. 317 of Oriental Airlines. The plane they  boarded  was  of
Philippine  registry.  While  en  route from Manila to Greece some passengers hijacked
the plane, held the chief pilot hostage at the cockpit and ordered him to fly instead to
Libya. During the hijacking Isidro suffered a heart attack and was on the verge of death.
Since Irma was already eight months pregnant by Isidro, she pleaded to the hijackers to
allow the assistant pilot to solemnize her marriage  with  Isidro.  Soon  after  the
marriage,  Isidro expired. As the plane landed in Libya Irma gave birth. However, the
baby died a few minutes after complete delivery.

Back in the Philippines Irma immediately filed a claim for inheritance. The parents of

Isidro opposed her claim contending that the marriage between her and Isidro was void
ab initio on the following grounds: (a) they had not given their consent to the marriage
of their son; (b) there was no marriage license; (c) the solemnizing officer had no
authority to perform the marriage; and, (d) the solemnizing officer did not file an
affidavit of marriage with the proper civil registrar.

1. Resolve each of the contentions ([a] to [d]) raised by the parents of Isidro. Discuss
fully.

SUGGESTED ANSWER:

1.    (a) The fact that the parents of Isidro and of Irma did not give their consent to the
marriage did not make the marriage void ab initio. The marriage is merely voidable
under Art 45 of the FC.

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

(c)  On the assumption that the assistant pilot was acting for and in behalf of the
airplane chief who was under disability, and by reason of the extraordinary and
exceptional circumstances  of  the  case  [ie.  hostage  situation),  the marriage  was
solemnized  by an authorized  officer under Art. 7 (3) and Art. 31. of the FC.
(d)  Failure of the solemnizing officer to file the affidavit of marriage did not affect the
validity of the marriage. It is merely an irregularity which may subject the solemnizing
officer to sanctions.

ALTERNATIVE ANSWER:

Considering that the solemnizing officer has no authority to perform  the  marriage
because  under  Art.  7  the  law authorizes  only  the  airplane  chief,  the  marriage  is 
void, hence, a, c, and d are immaterial.

Marriage; Requisites (1999)

What is the status of the following marriages and why?

(a)     A marriage between two 19-year olds without parental consent,

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

(c)     A  marriage  between  two  Filipino  first  cousins  in Spain where such marriage is

valid.

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

(e)     A marriage solemnized by a town mayor three towns away from his jurisdiction.

SUGGESTED ANSWER:

(a)    The marriage is voidable. The consent of the parties to the marriage was defective.
Being below 21 years old, the consent of the parties is not full without the consent of
their parents. The consent of the parents of the parties to the marriage is indispensable
for its validity.

SUGGESTED ANSWER:

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

SUGGESTED ANSWER:

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

The marriage it void. Under Article 96 of the Family Code, a marriage valid where
celebrated is valid in the Philippines except those marriages enumerated in said Article
which marriages will remain void even though valid where solemnized. The marriage
between first cousins is one of those marriages enumerated therein, hence, it is void
even though valid in Spain where it was celebrated.

By reason of Art. 15 in relation to Article 38 of the Civil Code, which applies to Filipinos
wherever they are, the marriage is void.

SUGGESTED ANSWER:

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

ALTERNATIVE ANSWER:

If the two Filipinos believed in good faith that the Notary Public  is  authorized  to
solemnize  marriage,  then  the marriage is valid.

SUGGESTED ANSWER:

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

ALTERNATIVE ANSWER:

The marriage is valid. Under the Local Government Code, the authority of a mayor to
solemnize marriages is not restricted within his municipality implying that he has the
authority even outside the territory thereof. Hence, the marriage  he  solemnized 
outside  his  municipality  is  valid. And even assuming that his authority is restricted
within his municipality, such marriage will nevertheless, be valid because solemnizing
the marriage outside said municipality is  a  mere  irregularity  applying  by  analogy  the
case  of Navarro v. Domagtoy, 259 SCRA 129. In this case, the Supreme Court held
that the celebration by a judge of a marriage outside the jurisdiction of his court is a
mere irregularity that did not affect the validity of the marriage notwithstanding  Article
7  of  the  Family  Code  which provides that an incumbent member of the judiciary is
authorized to solemnize marriages only within the court’s jurisdiction.
Marriage; Requisites; Marriage License (1996)

On Valentine’s Day 1996, Ellas and Fely, both single and 25 years of age, went to the city

hall where they sought out a fixer to help them obtain a quickie marriage. For a fee, the
fixer produced an ante-dated marriage license for them, Issued by the Civil Registrar of
a small remote municipality. He then brought them to a licensed minister in a
restaurant behind the city hall, and the latter solemnized their marriage right there and
then.

1)  Is  their  marriage  valid,  void  or  voidable?  Explain.

SUGGESTED ANSWER:

The marriage is valid. The irregularity in the issuance of a valid license does not
adversely affect the validity of the marriage. The marriage license is valid because it was
in fact issued by a Civil Registrar (Arts. 3 and 4. FC).

ALTERNATIVE ANSWER:

It depends. If both or one of the parties was a member of the religious sect of the
solemnizing officer, the marriage is valid. If none of the parties is a member of the sect
and both of them were aware of the fact, the marriage is void. They cannot claim good
faith in believing that the solemnizing officer was authorized because the scope of the
authority of the solemnizing officer is a matter of law. If, however, one of the parties
believed in good faith that the other was a member of the sect, then the marriage is
valid under Article 35 (2), FC. In that case, the party in good faith is acting under a
mistake of fact, not a mistake of law,

2) Would your answer be the same if it should turn out that the marriage license was
spurious? Explain.

SUGGESTED ANSWER:

No, the answer would not be the same. The marriage would be void because of the
absence of a formal requisite. In such a case, there was actually no valid marriage
license.

Marriage; Requisites; Marriage License (2002)

On May 1, 1978 Facundo married Petra, by whom he had a son Sotero. Petra died on
July 1, 1996, while Facundo died on  January  1,  2002.  Before  his  demise,  Facundo
had married, on July 1, 2002, Quercia. Having lived together as husband and wife since
July 1, 1990, Facundo and Quercia did not secure a marriage license but executed the
requisite affidavit for the purpose.

To  ensure  that  his  inheritance  rights  are  not  adversely affected by his father second

marriage, Sotero now brings a suit to seek a declaration of the nullity of the marriage of
Facundo and Quercia, grounded on the absence of a valid marriage license. Quercia
contends that there was no need for a marriage license in view for her having lived
continuously with Facundo for five years before their marriage and that has Sotero has
no legal personality to seek a declaration of nullity of the marriage since Facundo is now
deceased.

A.          Is  the  marriage  of  Facundo  and  Quercia  valid despite the absence of a

marriage license? Explain.

SUGGESTED ANSWER:

A.     The marriage with Quercia is void. The exemption from the requirement of a
marriage license under Art, 34, Family Code, requires that the man and woman must
have lived together as husband and wife for at least five years and without any legal
impediment to marry each other during those five years. The cohabitation of Facundo
and Quercia for six years from 1990  to July 1, 1996 when Petra died was one with a legal
impediment hence, not in compliance with the requirement of law. On other hand, the
cohabitation thereafter until the marriage on July 1, 2000, although free from legal
impediment, did not meet the 5-year cohabitation requirement.

ALTERNATIVE ANSWER:

The marriage of Facundo and Quercia is VALID. The second marriage was solemnized
on July 1, 2000, when the Family code was already affective. The family code took effect
on August 3, 1988. Under the Family Code, no marriage license is required if the parties
have been cohabiting for the period of five years and there is no legal impediment. There
must no legal impediment only at the time of the solemnization of the marriage, and not
the whole five years period. This is clearly the intent of the code framers (see Minutes
of the 150th joint Civil Code of the Family Law Committees held on August
9, 1986). Also in Manzano v. Sanchez, AM No. MT-00-129, March 8, 2001, the
Supreme Court said that, as one of the requisites for the exception to apply, there must
be no legal impediment at the time of the marriage. The Supreme Court did not say that
the legal impediment must exist all throughout the five-year period.

This is different from the case of Nināl v. Bayadog, (328 SCRA 122 [2000]). In the

said case, the situation occurred during the Relations of the new Civil Code where
Article 76 thereof clearly provides that during the five-year cohabitation, the parties
must be unmarried. This is not so anymore in the Family Code. The Change in the
Family Code is significant. If the second marriage occurred before the effectivity of the
Family Code, the answer would that be that the marriage is void.

B. Does Sotero have the personality to seek the declaration of nullity of the marriage,
especially now that Facundo is already deceased? Explain.

SUGGESTED ANSWER:
B. A void marriage may be questioned by any interested party in any proceeding where
the resolution of the issue is material.   Being   a   compulsory   heir,   Soterro   has   the
personality to question the validity of the marriage of Facundo and Quercia. Otherwise,
his participation in the estate on Facundo would be affected.    (Ninãl
v.Bayadog, 328 SCRA 122 [2000] ).

Marriage; Requisites; Solemnizing Officers (1994)

1} The complete publication of the Family Code was made on August 4, 1987.  On
September 4, 1987, Junior Cruz and Gemma Reyes were married before a municipal
mayor. Was the marriage valid?

2) Suppose the couple got married on September 1, 1994 at the Manila Hotel before the
Philippine Consul General to Hongkong, who was on vacation in Manila. The couple
executed an affidavit consenting to the celebration of the marriage at the Manila Hotel.
Is the marriage valid?

SUGGESTED ANSWER:

1)    a)   Yes, the marriage is valid. The Family Code took effect on August 3, 1988.  At the
time of the marriage on September 4, 1987, municipal mayors were empowered to
solemnize marriage under the Civil Code of 1950.

2)   a) The marriage is not valid.   Consuls and vice-consuls are empowered to solemnize
marriages between Philippine citizens abroad in the consular office of the foreign
country to  which  they  were  assigned  and  have  no  power  to solemnize marriage on
Philippine soil.

b) A Philippine consul is authorized by law to solemnize marriages abroad between

Filipino citizens. He has no authority to solemnize a marriage in the Philippines.
Consequently, the marriage in question is void, unless either or both of the contracting
parties believed in good faith that the consul general had authority to solemnize their
marriage in which case the marriage is valid.

Marriage; Requisites; Void Marriage (1993)

A and B, both 18 years old, were sweethearts studying in Manila. On August 3, 1988,

while in first year college, they eloped. They stayed in the house of a mutual friend in
town X, where they were able to obtain a marriage license. On August 30, 1988, their
marriage was solemnized by the town mayor of X in his office. Thereafter, they returned
to Manila and continued to live separately in their respective boarding houses,
concealing from their parents, who were living in the province what they had done. In
1992, after graduation from college, A and B decided to break their relation and parted
ways. Both went home to their respective towns to live and work.

1)   Was the marriage of A and B solemnized on August

30, 1988 by the town mayor of X in his office a valid marriage? Explain your answer.
2)   Can either or both of them contract marriage with another person without
committing bigamy? Explain your answer.

SUGGESTED ANSWER:

1) The marriage of A and B is void because the solemnizing officer had no legal authority
to solemnize the marriage. But if either or both parties believed in good faith that the
solemnizing officer had the legal authority to do so, the marriage is voidable because the
marriage between the parties, both below 21 years of age, was solemnized without the
consent of the parents. (Art. 35, par. (2) and Art. 45 par. (1), Family Code)

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

ALTERNATIVE ANSWER:

2) Yes, they can. The subsequent marriage contracted by one of the parties will not give
rise to bigamy even in the absence  of  a  court  declaration  of  nullity  of  the  first
marriage. The subsistence of a prior valid marriage is an indispensable element of the
crime of bigamy. The prior court declaration of nullity of the first marriage is required
by the Family Code only for the purpose of the validity of the subsequent marriage, not
as an element of the crime of bigamy.

Marriage; Void Marriages (2004)

A.  BONI and ANNE met while working overseas.  They became sweethearts and got

engaged to be married on New Year’s Eve aboard a cruise ship in the Caribbean.   They
took the proper license to marry in New York City, where there is a Filipino consulate.  
But as planned the wedding ceremony was officiated by the captain of the Norwegian-
registered vessel in a private suite among selected friends.

Back  in  Manila,  Anne  discovered  that  Boni  had  been married in Bacolod City 5
years earlier but divorced in Oslo only last year.   His first wife was also a Filipina but
now based in Sweden.   Boni himself is a resident of Norway where he and Anne plan to
live permanently.

Anne retains your services to advise her on whether her marriage to Boni is valid under
Philippine law?   Is there anything else she should do under the circumstances?

SUGGESTED ANSWER:
If  Boni  is  still  a  Filipino  citizen,  his  legal  capacity  is governed by Philippine Law
(Art. 15 Civil Code). Under Philippine Law, his marriage to Anne is void because of a
prior existing marriage which was not dissolved by the divorce decreed in Oslo. Divorce
obtained abroad by a Filipino is not recognized.

If Boni was no longer a Filipino citizen, the divorce is valid. Hence, his marriage to Anne
is valid if celebrated in accordance  with  the  law  of  the  place  where  it  was
celebrated.  Since  the  marriage  was  celebrated  aboard  a vessel of Norwegian registry,
Norwegian law applies. If the Ship Captain has authority to solemnize the marriage
aboard his ship, the marriage is valid and shall be recognized in the Philippines.

As to the second question, if Boni is still a Filipino, Anne can file an action for
declaration of nullity of her marriage to him.

Marriage; Void Marriages (2006)

Gigi and Ric, Catholics, got married when they were 18 years old. Their marriage was
solemnized on August 2, 1989 by Ric’s uncle, a Baptist Minister, in Calamba, Laguna.
He overlooked the fact that his license to solemnize marriage expired the month before
and that the parties do not belong to his congregation. After 5 years of married life and
blessed with 2 children, the spouses developed irreconcilable differences, so they parted
ways.

While separated, Ric fell in love with Juliet, a 16 year-old sophomore in a local college
and a Seventh-Day Adventist. They decided to get married with the consent of Juliet’s
parents. She presented to him a birth certificate showing she is 18 years old. Ric never
doubted her age much less the authenticity of her birth certificate. They got married in a
Catholic church in Manila. A year after, Juliet gave birth to twins, Aissa and Aretha.

(1)     What is the status of the marriage between Gigi and Ric – valid, voidable or void?
Explain.

SUGGESTED   ANSWER:   

Even  if  the  Minister’s  license expired, the marriage is valid if either or both Gigi ang

Ric beleived in good faith that he had the legal authority to solemnize marriage. While
the authority of the solemnizing officer is a formal requisite of marriage, and at least one
of the parties must belong to the solemnizing officer’s church, the law provides that the
good faith of the parties cures the defect in the lack of authority of the solemnizing
officer (Art.35, par.2, Family Code; Sempio-Diy, p.34; Rabuya, The Law on P
ersons and Family Relations, p. 208).

The  absence  of  parental  consent  despite  their  having married at the age of 18 is
deemed cured by their continued cohabitation beyond the age of 21. At this point, their
marriage is valid (See Art. 45, Family Code).

(2)    What is the status of marriage betwwen Ric and  Juliet – valid, voidable or void? 
SUGGESTED ANSWER:

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

(3)   Suppose Ric himself produced the falsified birth certificate to persuade Juliet to
marry him despite her minority and assured her that everything is in order. He did not
divulge to her his prior marriage with Gigi. What action, if any, can Juliet take against
him? Explain.   

SUGGESTED ANSWER:

Juliet can file an action for the declaration of nullity of the marriage on the ground that
he willfully caused loss or injury to her in a manner that is contrary to morals, good
customs and public policy [Art. 21, New Civil Code]. She may also bring criminal actions
for seduction, falsification, illegal marriage and bigamy against Ric.

(4)   If you were the counsel of Gigi, what actions will you take to enforce and protect her
interests? Explain.

SUGGESTED ANSWER:

I would file an action to declare the marriage between Juliet and Ric null and void ab

initio and for Ric’s share in the co-ownership of that marriage to be forfeited in favor
and considered part of the absolute community in the marriage between Gigi and Ric
[Arts. 148 &  147,  Family  Code].  I  would  also  file  an  action  for damages against Ric
on the grounds that his acts constitute an abuse of right and they are contrary to law and
morals, causing damages to Gigi (See Arts 19, 20, 21, New Civil Code).

Marriage; Void Marriages; Psychological Incapacity (2002)

A.          Give a brief definition or explanation of the term “psychological incapacity” as a

ground for the declaration of nullity of a marriage.

B.           If existing at the inception of marriage, would the state of being of unsound

mind or the concealment of drug addiction, habitual alcoholism, homosexuality or
lesbianism be considered indicia of psychological incapacity? Explain.

SUGGESTED ANSWER:

A. “PSYCHOLOGICAL INCAPACITY” is a mental disorder of the most serious type

showing the incapability of one or both spouses to comply the essential marital
obligations of love, respect, cohabitation, mutual help and support, trust and
commitment. It must be characterized by Juridical antecedence, gravity and incurability
and its root causes must be clinically identified or
examined. (Santos v. CA, 240 SCRA 20 [1995]).

B. In the case of Santos v. Court of Appeals, 240 SCRA 20 (1995), the Supreme

Court held that being of unsound mind, drug addiction, habitual alcoholism, lesbianism
or homosexuality may be indicia of psychological incapacity, depending on the degree of
severity of the disorder. However, the concealment of drug addiction, habitual
alcoholism, lesbianism or homosexuality is a ground of annulment of marriage.

Parental Authority; Child under 7 years of age (2006)

Under Article 213 of the Family Code, no child under 7 years of age shall be separated
from the mother unless the court finds compelling reasons to order otherwise.

(1)   Explain the rationale of this provision. 

SUGGESTED ANSWER:

The rationale of the 2nd paragraph of Article 213 of the Family Code is to avoid the
tragedy of a mother who sees her baby torn away from her. It is said that the maternal
affection and care during the early years of the child are generally needed by the child
more than paternal care (Hontiveros v. IAC, G.R. No. 64982, October 23, 1984;
Tolentino, Commentaries and Jurisprudence on the Civil Code, Volume
One, pp. 718-719). The general rule is that a child below 7 years old shall not be
separated from his mother due to his basic need for her loving
care (Espiritu v. C.A., G.R. No. 115640, March 15,1995).

(2)    Give at least 3 examples of “compelling reasons” which  justify  the  taking  away

from  the  mother’s custody of her child under 7 years of age.

SUGGESTED ANSWER:

a.     The mother is insane (Sempio-Diy, Hand

book on the Family Code of the Philippines, pp. 296-297);

b.    The mother is sick with a disease that is communicable and might endanger the

health and life of the child;

c.     The mother has been maltreating the child;

d.    The mother is engaged in prostitution;

e.     The mother is engaged in adulterous relationship;

f.     The mother is a drug addict;

g.     The mother is a habitual drunk or an alcoholic;

h.    The mother is in jail or serving sentence.

Parental Authority; Special Parental Authority; Liability  of Teachers

(2003)

If during class hours, while the teacher was chatting with other teachers in the school

corridor, a 7 year old male pupil stabs the eye of another boy with a ball pen during a
fight, causing permanent blindness to the victim, who could be liable  for  damages  for
the  boy’s  injury:  the  teacher,  the school authorities, or the guilty boy’s parents?
Explain.

SUGGESTED ANSWER:

The  school,  its  administrators, and  teachers  have  special parental authority and
responsibility over the minor child while under their supervision, instruction or custody
(Article 218, FC). They are principally and solidarily liable for the damages caused by
the acts or omissions of the unemancipated minor unless they exercised the proper
diligence  required  under  the  circumstances  (Article  219, FC). In the problem, the
TEACHER and the SCHOOL AUTHORITIES are liable for the blindness of the victim,
because the student who cause it was under their special parental authority and they
were negligent. They were negligent because they were chatting in the corridor during
the class period when the stabbing incident occurred. The incident could have been
prevented had the teacher been inside   the   classroom   at   that   time.   The   guilty   
boy’s PARENTS are subsidiarily liable under Article 219 of the Family Code.

Parental Authority; Substitute vs.Special (2004)

Distinguish briefly but clearly between: Substitute parental authority and special
parental authority.

SUGGESTED ANSWER:

In  substitute  parental  authority,  the  parents  lose  their parental authority in favor of
the substitute who acquires it to the exclusion of the parents.

In   special   parental   authority,   the   parents   or   anyone exercising   parental  
authority   does   not   lose   parental authority. Those who are charged with special
parental authority exercise such authority only during the time that the child is in their
custody or supervision.

Substitute parental authority displaces parental authority while special parental

authority concurs with parental authority.

Paternity & Filiation (1999)

(a) Two (2) months after the death of her husband who was shot by unknown criminal

elements on his way home from office, Rose married her childhood boyfriend, and seven
(7) months after said marriage, she delivered a baby. In the absence of any evidence
from Rose as to who is her child’s father, what status does the law give to said child?
Explain.

SUGGESTED ANSWER:

(a)     The child is legitimate of the second marriage under Article 168(2) of the Family
Code which provides that a “child born after one hundred eighty days following the
celebration  of  the  subsequent  marriage  is  considered  to have been conceived during
such marriage, even though it be born within three hundred days after the termination
of the former marriage.”

Paternity & Filiation; Proofs (1999)

(b) Nestor is the illegitimate son of Dr. Perez. When Dr. Perez  died,  Nestor intervened

in the settlement of his father’s estate, claiming that he is the illegitimate son of said
deceased, but the legitimate family of Dr. Perez is denying Nestor’s claim. What
evidence or evidences should Nestor present  so  that  he  may  receive  his  rightful
share  in  his father’s estate? (3%)

SUGGESTED ANSWER:

(b)       To be able to inherit, the illegitimate filiation of Nestor must have been admitted
by his father in any of the following:

(1)  the record of birth appearing in the civil register,

(2)  a final judgment,

(3)  a public document signed by the father, or

(4)  a private handwritten document signed by the lather (Article 175 in relation to
Article 172 of the Family Code).

Paternity  & Filiation;  Artificial  Insemination;  Formalities (2006)

Ed  and  Beth  have  been  married  for  20  years  without children. Desirous to have a

baby, they consulted Dr. Jun Canlas, a , prominent medical specialist on human fertility.
He advised Beth to undergo artificial insemination. It was found that Ed’s sperm count
was inadequate to induce pregnancy Hence, the couple looked for a willing donor. Andy
the brother of Ed, readily consented to donate his sperm. After a series of test, Andy’s
sperm was medically introduced into Beth’s ovary. She became pregnant and 9 months
later, gave birth to a baby boy, named Alvin.

(1)   Who is the Father of Alvin? Explain.

SUGGESTED ANSWER:
Andy is the biological father of Alvin being the source of the sperm. Andy is the legal
father of Alvin because there was neither consent nor ratification to the artificial
insemination. Under the law, children conceived by artificial insemination   are   
legitimate   children   of   the   spouses, provided, that both of them authorized or
ratified the insemination in a written instrument executed and signed by both of them
before the birth of the child (Art. 164, Family Code).

(2)  What are the requirements, if any, in order for Ed to establish his paternity over

Alvin?

SUGGESTED ANSWER:

The following are the requirements for Ed to establish his paternity over Alvin:

a.      The  artificial  insemination  has  been  authorized  or ratified  by  the  spouses  in  a

written  instrument executed and signed by them before the birth of the child; and

b.   The written instrument is recorded in the civil registry together with the birth

certificate of the child (Art. 164, 2nd paragraph, Family Code).

Paternity & Filiation; Common-Law Union (2004)

A.   RN and DM, without any impediment to marry each other, had been living together

without benefit of church blessings.  Their common-law union resulted in the birth of
ZMN.     Two  years  later,  they  got  married  in  a  civil ceremony.  Could ZMN be
legitimated?  Reason.

 SUGGESTED ANSWER:

ZMN was legitimated by the subsequent marriage of RN and DM because at the time he
was conceived, RN and DM could have validly married each other.    Under the Family
Code children conceived and born outside of wedlock of parents who, at the time of the
former’s conception, were not  disqualified by any impediment to marry each other are
legitimated by the subsequent marriage of the parents.

Paternity  & Filiation;  Proofs; Limitations;  Adopted Child (1995)

Abraham died intestate on 7 January 1994 survived by his son  Braulio.  Abraham’s
older  son  Carlos  died  on  14 February 1990.

Danilo  who  claims  to  be  an  adulterous  child  of  Carlos intervenes  in  the

proceedings  for  the  settlement  of  the estate of Abraham in representation of Carlos.
Danilo was legally  adopted  on  17  March  1970  by  Carlos  with  the consent of the ”
latter’s wife.

1.   Under the Family Code, how may an illegitimate filiation be proved? Explain.
2.   As lawyer for Danilo, do you have to prove Danilo’s illegitimate filiation? Explain.

3.   Can Danilo inherit from Abraham in representation of his father Carlos? Explain.

SUGGESTED ANSWER:

1.    Under Art. 172 in relation to Art. 173 andArt. 175 of

the FC, the filiation of illegitimate children may be establishedin the same way and by
the same evidence as legitimate children. Art. 172 provides that the filiation of legitimate
children  is  established  by  any  of  the  following:  (1)  the record of birth appearing in
the civil register or a final Judgment; or (2) an admission of legitimate filiation in a
public document or a private handwritten instrument and signed by the parent
concerned. In the absence of the foregoing evidence, the legitimate filiation shall be
proved by: (1) the open and continuous possession of the status of a legitimate child; or
(2) any other means allowed by the Rules of Court and special laws.

SUGGESTED ANSWER:

2.     No.    Since Danilo has already been adopted by Carlos, he ceased to be an

illegitimate child. An adopted child acquires all the rights of a legitimate child under Art,
189 of the FC.

SUGGESTED ANSWER:

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

ALTERNATIVE ANSWER:

An adopted child’s successional rights do not include the right to represent his deceased
adopter in the inheritance of the latter’s legitimate parent, in view of Art. 973 which
provides that in order that representation may take place, the representative must
himself be capable of succeeding the decedent. Adoption by itself did not render Danilo
an heir  of  the  adopter’s  legitimate  parent.  Neither  does  his being a grandchild of
Abraham render him an heir of the latter because as an illegitimate child of Carlos, who
was a legitimate child of Abraham, Danilo is incapable of succeeding Abraham under
Art. 992 of the Code.

Paternity & Filiation; Recognition of Illegitimate Child (2005)

Steve was married to Linda, with whom he had a daughter, Tintin. Steve fathered a son
with Dina, his secretary of 20 years,  whom  Dina  named  Joey,  born  on  September
20, 1981. Joey’s birth certificate did not indicate the father’s name. Steve died on August
13, 1993, while Linda died on December 3, 1993, leaving their legitimate daughter,
Tintin, as sole heir. On May 16, 1994, Dina filed a case on behalf of Joey, praying that
the latter be declared an acknowledged illegitimate son of Steve and that Joey be given
his share in Steve’s estate, which is now being solely held by Tintin. Tintin put up the
defense that an action for recognition shall  only  be  filed  during  the  lifetime  of  the 
presumed parents and that the exceptions under Article 285 of the Civil Code do not
apply to him since the said article has been repealed by the Family Code. In any case,
according to Tintin, Joey’s birth certificate does not show that Steve is his father.

a) Does Joey have a cause of action against Tin tin for recognition and partition?

Explain.

SUGGESTED ANSWER:

No, Joey does not have a cause of action against Tintin for recognition and partition.
Under Article 175 of the Family Code,   as   a   general   rule,   an   action   for   
compulsory

recognition of an illegitimate child can be brought at any time during the lifetime of the
child. However, if the action is based on “open and continuous possession of the status
of an illegitimate child, the same can be filed during the lifetime of the putative father.”

In the present case, the action for compulsory recognition was filed by Joey’s mother,
Dina, on May 16,1994, after the death of Steve, the putative father. The action will
prosper if Joey can present his birth certificate that bears the signature of his putative
father. However, the facts clearly state that the birth certificate of Joey did not indicate
the father’s name. A birth certificate not signed by the alleged father cannot be taken as
a record of birth to prove recognition of the child, nor can said birth certificate be taken
as a recognition in a public instrument (Reyes v. Court of Appeals, G.R. No.
39537, March 19, 1985). Consequently, the action filed by Joey’s mother has already
prescribed.

b)       Are the defenses set up by Tin tin tenable? Explain.

SUGGESTED ANSWER:

Yes, the defenses of Tintin are tenable.

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

SUGGESTED ANSWER:

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

Paternity &Filiation; Rights of Legitimate Children (1990)

B and G (college students, both single and not disqualified to marry each other) had a

romantic affair, G was seven months in the family way as of the graduation of B. Right
after graduation B went home to Cebu City. Unknown to G, B had a commitment to C
(his childhood sweetheart) to marry her after getting his college degree. Two weeks after
B marriage in Cebu City, G gave birth to a son E in Metro Manila.

After ten years of married life in Cebu, B became a widower by the sudden death of C in

a plane crash. Out of the union of B and C, two children, X and Y were born. Unknown
to C while on weekend trips to Manila during the last 5 years of their marriage, B
invariably visited G and lived at her residence and as a result of which, they renewed
their relationship. A baby girl F was born to B and G two years before the death of C.
Bringing his family later to Manila, B finally married G. Recently. G died.

What are the rights of B’s four children: X and Y of his first marriage; and E and F, his

children with G? Explain your answer.

SUGGESTED ANSWER:

Under the facts stated, X and Y are legitimate children of B and C. E is the legitimate
children of B and G. E is the legitimated child of B&G. F is the illegitimate child of B and
C. As legitimate children of B and C, X and Y have the following rights:

1)    To bear the surnames of the father and the mother, in conformity with the
provisions of the Civil Code on Surnames;

2)    To receive support from their parents, their ascendants,

and in proper cases, their brothers and sisters, in- conformity with the provisions of the
Family Code on Support; and

3)    To be entitled to the legitime and other successional rights granted to them by the

Civil Code. (Article 174, Family Code).

E is the legitimated child of B and G. Under Art. 177 of the Family Code, only children
conceived and born outside of wedlock of parents who, at the time of the conception of
the  former,  were  not  disqualified  by  any  impediment  to marry each other may be
legitimated.  E will have the same rights as X and Y.

F is the illegitimate child of B and G. F has the right to use the surname of G, her
mother, and is entitled to support as well as the legitime consisting of 1/2 of that of each
of X, Y and E.  (Article 176, Family Code)

Presumptive Legitime (1999)

What do you understand by “presumptive legitime”, in what case or cases must the
parent deliver such legitime to the children, and what are the legal effects in each case if
the parent fails to do so?

SUGGESTED ANSWER:

PRESUMPTIVE LEGITIME is not defined in the law. Its definition must have been
taken from Act 2710, the Old Divorce Law, which required the delivery to the legitimate
children of “the equivalent of what would have been due to them as their legal portion if
said spouse had died intestate immediately after the dissolution of the community of
property.”  As  used  in  the  Family  Code,  presumptive legitime is understood as the
equivalent of the legitimate children’s legitimes assuming that the spouses had died
immediately after the dissolution of the community of property.

Presumptive legitime is required to be delivered to the common children of the spouses

when the marriage is annulled or declared void ab initio and possibly, when the conjugal
partnership or absolute community is dissolved as in the case of legal separation.
Failure of the parents to deliver the presumptive legitime will make their subsequent
marriage null and void under Article 53 of the Family Code.

Property Relations; Absolute Community (1994)

Paulita left the conjugal home because of the excessive drinking of her husband, Alberto.
Paulita, out of her own endeavor, was able to buy a parcel of land which she was able  to
register  under  her  name  with  the  addendum “widow.” She also acquired stocks in a
listed corporation registered in her name. Paulita sold the parcel of land to Rafael, who
first examined the original of the transfer certificate of title.

1) Has Alberto the right to share in the shares of stock acquired by Paulita?

2)  Can Alberto recover the land from Rafael?

SUGGESTED ANSWER:

1. a) Yes. The Family Code provides that all property acquired  during  the  marriage, 
whether  the  acquisition appears to have been made, contracted or registered in the
name of one or both spouses, is presumed to be absolute community property unless the
contrary is proved.
b)  Yes. The shares are presumed to be absolute community property having been
acquired during the marriage despite the fact that those shares were registered only in
her name. Alberto’s right to claim his share will only arise, however, at dissolution.

c)   The presumption is still that the shares of stock are owned in common.     Hence,
they will form part of the absolute community or the conjugal partnership depending on
what the property Relations is.

d)    Since Paulita acquired the shares of stock by onerous title during the marriage,
these are part of the conjugal or absolute community property, as the case maybe
(depending on whether the marriage was celebrated prior to. or after, the effectivity of
the Family Code).   Her physical separation from her husband did not dissolve the
community of property. Hence, the husband has a right to share in the shares of stock.

SUGGESTED ANSWER:

2) a) Under a community of property, whether absolute or relative, the disposition of

property belonging to such community is void if done by just one spouse without the
consent of the other or authority of the proper court. However, the land was registered
in the name of Paulita as “widow”. Hence, the buyer has the right to rely upon what
appears in the record of the Register of Deeds and should, consequently, be protected.
Alberto cannot recover the land from Rafael but would have the right of recourse against
his wife

b)  The  parcel  of  land  is  absolute  community  property having been acquired during
the marriage and through Paulita’s industry despite the registration being only in the
name of Paulita. The land being community property, its sale to Rafael without the
consent of Alberto is void. However, since the land is registered in the name of Paulita
as widow, there is nothing in the title which would raise a suspicion for Rafael to make
inquiry. He, therefore, is an innocent purchaser for value from whom the land may no
longer be recovered.

c) No. Rafael is an innocent purchaser in good faith who, upon relying on the
correctness of the certificate of title, acquires rights which are to be protected by the
courts.

Under the established principles of land registration law, the presumption is that the
transferee of registered land is not aware of any defect in the title of the property he
purchased. (See Tojonera v. Court of Appeals, 103 SCRA 467).Moreover, the
person dealing with registered land may safely rely on the correctness of its certificate of
title and the law will in no way oblige him to go behind the certificate to determine the
condition of the property. [Director of Lands v. Abache, et al. 73 Phil. 606).No
strong considerations of public policy have been presented which would lead the Court
to reverse the established and sound doctrine that the buyer in good faith of a registered
parcel of land does not have to look beyond the Torrens Title and search for any hidden
defect or inchoate right which may later invalidate or diminish his right to what he
purchased. (Lopez v. Court of Appeals, 189 SCRA 271)
d)  The  parcel  of  land  is  absolute  community  property having been acquired during
the marriage and through Paulita’s industry despite registration only in the name of
Paulita.  The  land  being  community  property,  its  sale  to Rafael without the consent
of Alberto is void.

Property Relations; Ante Nuptial Agreement (1995)

Suppose Tirso and Tessie were married on 2 August 1988 without executing any ante

nuptial agreement.    One year after their marriage, Tirso while supervising the clearing
of Tessie’s inherited land upon the latter’s request, accidentally found the treasure not in
the new river bed but on the property of Tessie.    To whom shall the treasure belong?
Explain.

SUGGESTED ANSWER:

Since Tirso and Tessie were married before the effectivity of the Family Code, their
property relation is governed by conjugal partnership of gains. Under Art. 54 of the Civil
Code, the share of the hidden treasure which the law awards to the finder or the
proprietor belongs to the conjugal partnership of gains. The one-half share pertaining to
Tessie as owner of the land, and the one-half share pertaining to Tirso as finder of the
treasure, belong to the conjugal partnership of gains.

Property Relations; Conjugal Partnership of Gains (1998)

In 1970, Bob and Issa got married without executing a marriage settlement. In 1975, Bob
inherited from his father a residential lot upon which, in 1981, he constructed a two-
room bungalow with savings from his own earnings. At that time, the lot was worth
P800.000.00 while the house, when finished cost P600,000.00. In 1989 Bob died,
survived only by his wife, Issa and his mother, Sofia. Assuming that the relative values of
both assets remained at the same proportion:

1.     State whether Sofia can rightfully claim that the house and lot are not conjugal but

exclusive property of her deceased son.

2.    Will your answer be the same if Bob died before August 3, 1988?

SUGGESTED ANSWER:

1. Since Bob and Sofia got married In 1970, then the law that governs is the New Civil
Code (Persons), in which case, the property relations that should be applied as regards
the property of the spouses is the system of relative community or conjugal partnership
of gains (Article 119, Civil Code). By conjugal partnership of gains, the husband and the
wife place in a common fund the fruits of their separate property and the income from
their work or Industry (Article 142, Civil Code). In this instance, the lot inherited by Bob
in 1975 is his own separate property, he having acquired the same  by  lucrative  title 
(par.  2,  Art.  148,  Civil  Code). However, the house constructed from his own savings
in 1981 during the subsistence of his marriage with Issa is conjugal property and not
exclusive property in accordance with the principle of “reverse accession” provided for
in Art. 158, Civil Code.

ANOTHER ANSWER:

1.       Sofia, being her deceased son’s legal heir concurring with his surviving spouse
(Arts. 985, 986 and 997, Civil Code), may rightfully claim that the house and lot are not
conjugal but belong to the hereditary estate of Bob. The value of the land being more
than the cost of the improvement (Art. 120, Family Code).

SUGGESTED ANSWER:

2.     Yes, the answer would still be the same. Since Bob and Issa contracted their
marriage way back in 1970, then the property relations that will govern is still the
relative community or conjugal partnership of gains (Article 119, Civil Code).  It will not
matter if Bob died before or after August 3. 1988 (effectivity date of the Family Code],
what matters is the date when the marriage was contracted. As Bob and Issa contracted
their marriage way back in  1970. the property relation that governs them is still the
conjugal partnership of gains. (Art. 158, Civil Code)

ANOTHER ANSWER:

2.      If Bob died be fore August 3, 1988. which is the date the Family Code took effect,
the answer will not be the same. Art. 158. Civil Code, would then apply. The land would
then be deemed conjugal, along with the house, since conjugal funds were used in
constructing it. The husband’s estate would be entitled to a reimbursement of the value
of the land from conjugal partnership funds.

Property Relations; Marriage Settlement; Conjugal Partnership of Gains

(2005)

Gabby and Mila got married at Lourdes Church in Quezon City  on  July  10,  1990. 

Prior  thereto,  they  executed  a marriage settlement whereby they agreed on the regime
of conjugal partnership of gains. The marriage settlement was registered in the Register
of Deeds of Manila, where Mila is a resident. In 1992, they jointly acquired a residential
house and lot, as well as a condominium unit in Makati. In 1995, they  decided  to
change  their  property  relations  to  the regime of complete separation of property. Mila
consented, as she was then engaged in a lucrative business. The spouses then signed a
private document dissolving their conjugal partnership and agreeing on a complete
separation of property.

Thereafter, Gabby acquired a mansion in Baguio City, and a 5-hectare agricultural land
in Oriental Mindoro, which he registered exclusively in his name.

In the year 2000, Mila’s business venture failed, and her creditors sued her for
P10,000,000.00. After obtaining a favorable judgment, the creditors sought to execute
on the spouses’ house and lot and condominium unit, as well as Gabby’s mansion and
agricultural land.

a)  Discuss the status of the first and the amended marriage settlements. 

SUGGESTED ANSWER:

The marriage settlement between Gabby and Mila adopting the regime of conjugal
partnership of gains still subsists. It is not dissolved by the mere agreement of the
spouses during the marriage. It is clear from Article 134 of the Family Code that in the
absence of an express declaration in the marriage settlement, the separation of property
between the spouses during the marriage shall not take place except by judicial order.

b) Discuss the effects of the said settlements on the properties acquired by the spouses.

SUGGESTED ANSWER:

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

c) What properties answerable for Mila’s obligations? Explain.

ALTERNATIVE ANSWER:

Since all the properties are conjugal, they can be held answerable for Mila’s obligation if
the obligation redounded to the benefit of the family. (Art. 121 [3], Family Code)
However,  the  burden  of  proof  lies  with  the  creditor claiming against the
properties (Ayala Investment v. Court of Appeals, G.R. No. 118305, February
12, 1998, reiterated in Homeowners Savings & Loan Bank v. Dailo, G.R. No.
153802, March 11, 2005).

ALTERNATIVE ANSWER:

Except for the residential house which is the family home, all other properties of Gabby
and Mila may be held answerable for Mila’s obligation. Since the said properties are
conjugal in nature, they can be held liable for debts and obligations contracted during
the marriage to the extent that the family was benefited or where the debts were
contracted by both spouses, or by one of them, with the consent of the other.

A  family  home  is  a  dwelling  place  of  a person and  his family. It confers upon a
family the right to enjoy such property, which must remain with the person constituting
it as a family home and his heirs. It cannot be seized by creditors except in special
cases. (Taneo, Jr. v. Court of Appeals, G.R.No.108532, March 9,1999)
Property Relations; Marriage Settlements (1991)

Bar Candidates Patricio Mahigugmaon and Rowena Amor decided to marry each other
before the last day of the 1991

Bar  Examinations.  They  agreed  to  execute  a  Marriage

Settlement. Rowena herself prepared the document in her own handwriting. They
agreed on the following: (1) a conjugal partnership of gains; (2) each donates to the
other fifty percent (50%) of his/her present property, (3) Rowena shall administer the
conjugal partnership property; and (4) neither   may   bring   an   action   for   the  
annulment   or declaration of nullity of their marriage. Both signed the agreement in the
presence of two (2) witnesses. They did not, however, acknowledge it before a notary
public.

A.   As to form, is the Marriage Settlement valid? May it be registered in the registry of

property? If not, what steps must be taken to make it registerable?

B.   Are the stipulations valid?

C.   If the Marriage Settlement is valid as to form and the above stipulations are likewise

valid, does it now follow that said Marriage Settlement is valid and enforceable?

SUGGESTED ANSWER:

A.   Yes, it is valid as to form because it is in writing.

No,  it  cannot  be  registered  in  the  registry  of  property because it is not a public
document. To make it registerable, it must be reformed and has to be notarized.

SUGGESTED ANSWER:

B.    Stipulations (1) and (3) are valid because they are not contrary  to  law.      
Stipulation  (4)  is  void  because  it  is contrary to law.    Stipulation (2) is valid up to 1/5
of their respective present properties but void as to the excess (Art 84, Family Code).

SUGGESTED ANSWER:

C. No. on September 15, 1991, the marriage settlement is not yet valid and enforceable
until the celebration of the marriage, to take place before the last day of the 1991 bar
Examinations.

Property Relations; Marriage Settlements (1995)

On 10 September 1988 Kevin, a 26-year old businessman, married  Karla,  a  winsome  l
ass  of  18.       Without  the knowledge of their parents or legal guardians, Kevin and
Karla entered into an ante-nuptial contract the day before their marriage stipulating
that conjugal partnership of gains shall govern their marriage. At the time of their
marriage Kevin’s  estate  was  worth  50  Million  while  Karla’s  was valued at 2 Million.

A  month  after  their  marriage  Kevin  died  in  a  freak helicopter accident. He left no
will, no debts, no obligations. Surviving Kevin, aside from Karla, are his only relatives:
his brother Luis and first cousin Lilia.

1)    What  property  Relations  governed  the  marriage  of Kevin and Karla? Explain.

2)    Determine the value of the estate of Kevin,

3)    Who are Kevin’s heirs?

4)    How   much    is    each    of Kevin’s heirs entitled to inherit?

SUGGESTED ANSWER:

1.   Since the marriage settlement was entered into without the consent and without the
participation of the parents (they did not sign the document), the marriage settlement is
invalid applying Art. 78, F.C.  which provides that a minor who according to law may
contract marriage may also enter into marriage settlements but they shall be valid only
if the person who may give consent to the marriage are made parties to the agreement.
(Karla was still a minor at the time the marriage settlement was executed in September
1988 because the law, R.A. 6809,  reducing the age of majority
to 18 years took effect on 18 December 1989). The marriage settlement being void, the
property Relations governing the marriage is, therefore,      absolute community of
property, under Art. 75 of the FC.

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

3.   Karla and Luis are the Intestate heirs of Kevin.

4.      They  are  entitled  to  share  the  estate  equally  under Article 1001 of the NCC.
Therefore, Karla gets 13 Million and Luis gets 13 Million.

Property  Relations;   Obligations;   Benefit   of  the  Family (2000)

As finance officer of K and Co., Victorino arranged a loan of P5 Million from PNB for the
corporation.  However, he was required by the bank to sign a Continuing Surety
Agreement to secure the repayment of the loan. The corporation failed to pay the loan,
and the bank obtained a judgment against it and Victorino, jointly and severally. To
enforce the judgment, the sheriff levied on a farm owned by the conjugal partnership of
Victorino and his wife Elsa. Is the levy proper or not?

SUGGESTED ANSWER:

The levy is not proper there being no showing that the surety agreement executed by the
husband redounded to the benefit of the family. An obligation contracted by the
husband alone is chargeable against the conjugal partnership only when it was
contracted for the benefit of the family. When the obligation was contracted on behalf of
the family business the law presumes that such obligation will redound to the benefit of
the family. However, when the obligation was  to  guarantee  the  debt  of  a  third  party,
as  in  the problem, the obligation is presumed for the benefit of the third party, not the
family. Hence, for the obligation under the   surety   agreement   to   be   chargeable   
against   the partnership it must be proven that the family was benefited and that the
benefit was a direct result of such
agreement, (Ayala Investment v. Ching, 286 SCRA 272)

Property Relations; Unions without Marriage (1992)

In  1989,  Rico,  then  a  widower  forty  (40)  years  of  age, cohabited with Cora, a

widow thirty (30) years of age. While living together, they acquired from their combined
earnings a parcel of riceland.

After Rico and Cora separated, Rico lived together

with Mabel,  a  maiden  sixteen  (16)  years  of  age.  While  living together,  Rico  was  a
salaried  employee  and  Mabel  kept house for Rico and did full-time household chores
for him. During  their cohabitation,  a parcel  of  coconut  land  was acquired by Rico
from his savings.

After living together for one (1) year, Rico and Mabel separated. Rico then met and
married Letty, a single woman twenty-six (26) years of age. During the marriage of Rico
and Letty, Letty   bought a mango orchard out of her own personal earnings.

a)      Who  would  own  the  riceland,  and  what  property relations governs the

ownership? Explain.

b)    Who would own the coconut land, and what property relations governs the

ownership? Explain.

c)         Who  would  own  the  mango  orchard,  and  what property relations governs the

ownership? Explain.

SUGGESTED ANSWER:

(a)  Rico and Cora are the co-owners of the riceland. The Relations is that of co-
ownership (Art. 147, Family Code, first paragraph).
(Optional Addendum: However, after Rico’s marriage to Letty, the half of interest of
Rico in the rice land will then become absolute community property of Rico and Letty.)

(b) Rico is the exclusive owner of the coconut land. The Relations is a sole/single
proprietorship (Art. 148. Family Code, first paragraph is applicable, and not Art. 147
Family Code).

(Optional Addendum: However, after Rico’s marriage to Letty, the coconut land of
Rico will then become absolute community property of Rico and Letty.)

(c) Rico and Letty are the co-owners. The Relations is the Absolute Community of
Property (Arts, 75, 90 and 9l, Family Code).

Property Relations; Unions without Marriage (1997)

Luis  and  Rizza,  both  26  years  of  age  and  single,  live exclusively with each other as

husband and wife without the benefit of marriage, Luis is gainfully employed, Rizza is
not employed, stays at home, and takes charge of the household chores.

After living together for a little over twenty years, Luis was able to save from his salary
earnings during that period the amount of P200,000.00 presently deposited in a bank.
A house and lot worth P500,000.00 was recently purchased for the same amount by the
couple. Of the P500.000.00 used by the common-law spouses to purchase the property,
P200.000.00  had  come  from  the sale  of  palay  harvested from the hacienda owned
by Luis and P300,000.00 from the rentals of a building belonging to Rizza. In fine, the
sum of P500.000.00 had been part of the fruits received during the period of
cohabitation from their separate property, a car worth   P100.000.00.   being   used   by   
the   common-law spouses, was donated Just months ago to Rizza by her parents.

Luis and Rizza now decide to terminate their cohabitation, and they ask you to give
them your legal advice on the following:

(a)    How,  under  the  law  should  the  bank  deposit  of P200,000.00 the house and lot

valued at P500.000.00 and the car worth P100.000.00 be allocated to them?

(b)  What would your answer be (to the above question) had Luis and Rizza been living
together all the time, ie., since twenty years ago, under a valid marriage?

SUGGESTED ANSWER:

a) Art. 147 of the Family Code provides in part that when a man and a woman who are
capacitated to marry each other, live exclusively with each other as husband and wife
without the  benefit  of  marriage  or  under  a  void  marriage,  their wages and salaries
shall be owned by them in equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules of co- ownership.
In the absence of proof to the contrary, properties acquired while they lived together
shall be presumed to have been obtained by their Joint efforts, worker Industry, and
shall be owned  by  them  in  equal  shares.  A  party  who  did  not participate  in  the
acquisition  by  the  other  party  of  any property shall be deemed to have contributed
jointly in the acquisition thereof if the former’s efforts consisted in the care and
maintenance of the family and of the household. Thus:

1)   the wages and salaries of Luis in the amount of P200,000.00  shall  be  divided 
equally  between  Luis  and Rizza.

2)     the house and lot    valued at P500.000.00 having been acquired by both of them

through work or industry shall be divided between them in proportion to their
respective contribution, in consonance with the rules on co-ownership. Hence, Luis gets
2\5 while Rizza gets 3/5 of P500.000.00.

3)    the car worth P100,000.00 shall be exclusively owned

by Rizza, the same having been donated to her by her parents.

SUGGESTED ANSWER:

(b) The property relations between Luis and Rizza, their marriage having been
celebrated 20 years ago (under the Civil Code) shall be governed by the conjugal
partnership of gains,  under  which  the  husband  and  wife  place  in  a common fund
the proceeds, products, fruits and income from their separate properties and those
acquired by either or both spouses through their efforts or by chance, and upon
dissolution of the marriage or of the partnership, the net gains or benefits obtained by
either or both spouse shall be divided equally between them (Art. 142. Civil Code). Thus:

1)   The salary of Luis deposited in the bank in the amount of P200.000.00 and the

house and lot valued at P500,000.00 shall be divided equally between Luis and Rizza.

2) However, the car worth P100.000,00 donated to Rizza by her parents shall be
considered to her own paraphernal property, having been acquired by lucrative title
(par. 2, Art. 148, Civil Code).

Property Relations; Unions without Marriage (2000)

For five years since 1989, Tony, a bank Vice-president, and Susan, an entertainer, lived

together as husband and wife without the benefit of marriage although they were
capacitated to many each other. Since Tony’s salary was more than enough for their
needs, Susan stopped working and merely “kept house”. During that period, Tony was
able to buy a lot and house in a plush subdivision. However, after five years, Tony and
Susan decided to separate.

a)  Who  will  be  entitled  to  the  house  and  lot?

SUGGESTED ANSWER:
Tony and Susan are entitled to the house and lot as co- owners in equal shares. Under
Article 147 of the Family Code, when a man and a woman who are capacitated to marry
each  other  lived  exclusively  with  each  other  as husband and wife, the property
acquired during their cohabitation are presumed to have been obtained by their joint
efforts, work or industry and shall be owned by them in equal shares. This is true even
though the efforts of one of them consisted merely in his or her care and maintenance of
the family and of the household.

b) Would it make any difference if Tony could not marry Susan because he was
previously married to Alice from whom he is legally separated?

SUGGESTED ANSWER:

Yes, it would make a difference. Under Article 148 of the Family Code, when the parties
to the cohabitation could not marry each other because of an impediment, only those
properties acquired by both of them through their actual joint contribution of money,
property, or Industry shall be owned   by   them   in   common   in   proportion   to   their
respective contributions. The efforts of one of the parties in maintaining the family and
household are not considered adequate contribution in the acquisition of the properties.

Since Susan did not contribute to the acquisition of the house and lot, she has no share
therein. If Tony cohabited with Susan after his legal separation from Alice, the house
and lot is his exclusive property. If he cohabited with Susan before his legal separation
from Alice, the house and lot belongs to his community or partnership with Alice.