PERSONS AND FAMILY RELATIONS LAW - MIDTERMS NOTES If the child dies upon delivery, what will happen

If the child dies upon delivery, what will happen to the donation?

CIVIL PERSONS The donation will not ripen into a valid donation because the child who is unborn may only be considered
born when it complies with ART 41.
A “person” is one that possesses rights and obligations.
Can the mother execute a will and expressly exclude (preterit) the unborn child from her estate?
In Civil Law, there are two kinds of persons: No. That is no longer favorable to the child. PCP is applicable only when it is favorable to the unborn child.

NATURAL PERSONS – those created in the image of God, like you and me  When the unborn child dies when inside the womb, is it entitled to damages?

Juridical capacity - inherent in natural persons; the fitness to be the subject of any legal relation. No. without birth, the child cannot be considered as a person, and being such, it is not entitled to damages
but the parents can recover for the moral damages, that the parents, on their own rights may have suffered
Capacity to act – the power to do acts with legal effects due to the expulsion or death of their child.

The person who has inherent juridical capacity does not necessarily have capacity to act because capacity In the case of Gilos vs. Court of Appeals, where the medical practitioner was sued for damages for causing
to act is acquired. abortion, the parents claimed for damages but SC said there can be no damages on behalf of the expelled
child because of absence of legal personality, but the parents may claim moral damages on their own
Ex. A minor individual may have juridical capacity, it can be subject to any legal relation but has no power to rights, as parents arising from the death of their unborn child.
do acts with legal effects; minority is a restriction on capacity to act.
Distinction between life and personality:
Similarly, the status of the deaf-mute, civil interdicted persons, these are limitations on capacity to act. It is not correct to say that only those having personality can die. While personality begins at birth, life
These persons are deemed not to have capacity to act. begins at conception. So while one may have life, it does not necessarily follow that it has civil personality.

When does civil personality begin? This is the ruling in the case of Continental Steel Company vs. Hon. Voluntary Arbitrator. This involves a
case filed by an employee whose claim for death benefit arising from the death of his unborn child was
Art 40 expressly provides that birth determines personality. When we talk about persons, it always denied by the company. There was this existing collecting party agreement where every employee was
presupposes birth, there is no ACTUAL person without birth entitled death benefits in case of death of his/her dependents. It so happened that the unborn child of an
employee died. Believing that the unborn child falls under the definition of the agreement, the employee
Presumptive Civil Personality – is that which is possessed by an unborn child filed for the benefit but was denied by the company which the latter contended that the child was not born
because it died in the womb, it did not acquire personality and therefore it cannot die.
Is an unborn child a person? RULING:
Actual person, no. While the child is still in the womb of the mother, the unborn child enjoys only a SC said that it is not accurate to say that only those having personality can die because life begins at
presumptive civil personality. conception. Even the child inside the womb has life and when the child inside dies, that falls under the
definition of death. Second, the child while inside is considered to be a dependent. SC said either way, the
Presumptive Civil Personality – is only for purposes beneficial for the child; is called presumptive because it employee is entitled to claim the benefit demanded.
is subject to the conditions in art 41 which is BIRTH. _____________________________________________________________________________
A child may have presumptive personality in the mother’s womb, but to be considered a person, it has to
comply with the provisions in art 41 which is birth. DEATH
- Extinguishes personality.
But you have to distinguish the conditions which would qualify birth as a requirement for personality. When a person dies, civil personality dies.

Ex. 3 Presumptions involving Death:

If the child has an intra uterine life of less than 7 months, for it to be considered born, it must be alive
within 24 hours from complete delivery from the maternal womb. So if a child less than 7 months is 1. Presumption of Death – Rule 131, Section 3, paragraph (w):
delivered but dies within 24 hours from complete delivery, it did not acquire full civil personality, although
while it was still in the womb, it enjoyed presumptive civil personality. Under Normal Circumstances:
When a person went missing for a period of 7 years, that person is presumed dead. Absence of 7 years
What is the consequence of an unborn child possessing presumptive personality? results in the presumption of death.
This presumption applies only for purposes other than succession. For purposes of opening succession, you
For purposes beneficial to it, e.g. it may be a donee of a donation, so while the child is still inside, a person need 10 years. If the person went missing at the age of more than 70, you only need 5 years, for all
may validly execute a deed of donation to the unborn child. purposes, including succession. For purposes of remarriage, you only need 4 years.
Under Circumstances Involving Danger of Death: Under the insurance law, when the beneficiary dies ahead of the insured, the insurance policy is voided.
When a person on board a vessel, or airship, went missing or a member of the military took part in an Under the circumstances, it is not possible to determine who died first. Presumption of survivorship now
actual military operation, etc. If the disappearance of a person took place where circumstances involve applies.
danger of death, the presumption requisite is only 4 years, for all purposes other than remarriage. For
purposes of remarriage in this case, you only need 2 years. 3. Presumption of Simultaneity - Rule 131, Section 3, paragraph (kk):

These periods apply only when there is no conclusive proof of death, BUT if death is established by That if there is a doubt, as between two or more persons who are called to succeed each other, as to which
preponderance of evidence, you don’t apply the presumptions because death is already established. You of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence
don’t need the body of a person to establish death. of proof, they shall be considered to have died at the same time.

In the case of Victoria Shipping Lines Inc. vs. Workmen Compensation Commission, where a crew member In this case, there can be no transmission of rights. This applies only for purposes of succession.
who was deep in slumber was awakened by a fire of unknown origin, jumped off the vessel, and was
missing since then. Believing that the crew member died because of that incident, the family of the crew ARTIFICIAL PERSONS– those created by fiction of law (corporations, partnerships, etc.)
member claimed for the death benefits arising from death of the member, this was denied because the
period to presume has not lapsed. FAMILY CODE OF THE PHILIPPINES
RULING:
SC said you don’t apply presumption of death because there is preponderance of evidence that he really Art. 1. Marriage is a special contract of a permanent union between man and a woman entered into in
died. accordance with the law for the establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences, and incidents are governed by
In the case of Eastern Shipping Lines, Inc. vs Lucero, where a captain of the vessel at sea under a storm law and not subject to stipulation, except that marriage settlements may fix the property relations during
with huge waves, communicated with the company describing the condition of the vessel in the eye of the the marriage within the limits provided by this Code.
storm, since then, the captain was never heard of. The wife who enjoyed receiving the monthly allotment
of the husband, refused to believe that her husband died during the incident and insisted to demand to By its definition, marriage is both a status and a contract.
collect the monthly allotment arguing that the period required for the presumption to apply has not yet The state is always the invisible third party in marriage. It is expressed with public interest.
lapsed, so in the meantime, he is still deemed to be alive.
RULING: There are essential and formal requisites of marriage.
Supreme Court disagreed. Under the circumstances, particularly the radio messages establish POE that the ESSENTIAL REQUISITES:
captain died in that incident. 1. Legal Capacity
Capacity includes, inter alia, that the parties must be free from any legal impediments. The status of
2. Presumption of Survivorship - Rule 131, Section 3, paragraph (jj): being married is a legal impediment. Judgment of Nullity and Annulment or Liquidation must be
recorded and without such is a legal impediment pursuant to Art. 52 and 53. Marriages under Art. 37
That except for purposes of succession, when two persons perish in the same calamity, such as wreck, and 38 are also legal impediments.
battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from
which it can be inferred, the survivorship is determined from the probabilities resulting from the strength 2. Consent
and the age of the sexes, according to the following rules: Consent must be freely given.

1. If both were under the age of fifteen years, the older is deemed to have survived; FORMAL REQUISITES:
2. If both were above the age sixty, the younger is deemed to have survived; 1. Authority of the solemnizing officer
3. If one is under fifteen and the other above sixty, the former is deemed to have survived; Article 7 enumerates the officers which can validly solemnize a marriage.
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if Judges of lower courts may only solemnize marriage within their jurisdiction.
the sex be the same, the older; Chief Pilots and Ship Captains are limited only to marriages in articulo mortis, on board a vessel or at
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have stop point, and only within their crew. Insofar as Military Unit Commander, there must be a chaplain
survived. but is not available, in articulo mortis, must be in the zone of military operation, can cover both
Ex. civilians and members of the military.
If Ms. Cagula procured an insurance policy on her life for 1 million naming Mr. Santos as her sole
beneficiary, they went to the Bahamas enjoying their life there. But unfortunately, a tsunami struck and 2. Valid Marriage License
killed both of them. Under the circumstances, it cannot be inferred as to whom died first. For purposes of EXCEPTIONS FOR MARRIAGE LICENSE REQUIREMENT:
determining whether the contract of insurance takes effect and insurance benefits can be claimed by the 1. Marriage in articulo mortis
heirs, Mr. Santos is survived by his mother as his sole heir. 2. Ratification of Marital Cohabitation, Art. 34.
Instead of a marriage license, the parties are only required to present affidavit of cohabitation.
Can Mr. Santos’ mother claim the insurance proceeds procured on the life of Ms. Cagula? The most controversial issue in this provision is the absence of legal impediments.
 In the case of Niñal vs. Badayog, where the SC said that the 5 year cohabitation must be What is the effect if the parental consent is not obtained or unfavorable?
characterized by exclusivity and free from legal impediments. In this case where the husband The effect is suspension for a period of at least 3 months, but after 3 months the LCR is
killed his wife and married his paramour. The children filed an action to annul the subsequent nonetheless required to issue the marriage license. Issuance before the 3 month period is
marriage, which was solemnized under article 34. The issue here is WON the subsequent only a mere irregularity. Issuance of ML without Certification of Marriage Counsel is also a
marriage is valid because it was established that it was only 1 year and 8 months that they were mere irregularity.
cohabiting because the husband already cohabited with his paramour while his wife was still
alive. If either or both applicants are PREVIOUSLY MARRIED:
RULING: Instead of submitting the required Birth Certificate to prove age, the applicant is required to
There is no valid ratification of marital cohabitation because the 5 year period must be submit the copy of the Death Certificate, Judicial Declaration of Nullity or Annulment, or
characterized by exclusivity and free from legal impediments. The falsification of the affidavit Divorce Decree.
amounts to no affidavit of cohabitation, no affidavit of cohabitation is no marriage license, thus
void ab initio. If either or both applicants are FOREIGNERS:
Instead of submitting the Birth Certificate and other requirements of Legal Capacity, the
Niñal vs. Badayog has now been overruled by the new controlling case, Manzano vs. Sanchez, applicant is required to submit the Certificate of Legal Capacity. Under article 15, the
where a judge was administratively sued because he solemnized a marriage between parties capacity of the alien should be determined by the nationality theory.
who had legal impediments in their 5 years. SC enumerated the requisites of a valid ratification
of marital cohabitation to wit: If either or both applicants are STATELESS:
a. The parties must be cohabiting for a period of at least 5 years without legal impediments The applicant has to execute an affidavit stating the facts and circumstances of his capacity
b. The absence of legal impediments must be present at the time of the marriage. to contract marriage under Domiciliary Theory. For purposes of determining legal capacity of
(emphasis supplied) a stateless person, the laws of the permanent domicile, if he does not have a permanent
domicile, apply temporary domicile, in this case, Philippine Law.
3. Marriage solemnized in far-flung areas where either or both of the parties reside in a very
remote area. What is the effect if the required one or some supporting documents are not complied with?
The LCR is not supposed to issue a marriage license, however, so long as all the required
For this exception to apply, it is required that the marriage must be solemnized at that specific supporting documents are submitted, the LCR is duty bound to issue ML even if the LCR is
area. In this instance, no marriage license is required. aware that there are legal impediments pertaining to the applicants. This is so because the
authority of the LCR is ministerial, so long as all fees are paid and documents submitted, LCR
is required to issue marriage license, even if it is aware of legal impediments.
PROCEDURE FOR APPLICATION OF MARRIAGE LICENSE:
Local Civil Registrar is enjoined to issue marriage license only when:
1. Who may issue marriage license? When a third party goes to court and files an injunction enjoining LCR or if LCR itself goes to
A marriage license is issued by the Local Civil Registrar of a place where either or both of the court and files injunction, without a court order, the LCR is duty-bound to issue a marriage
parties reside. What is the effect if the LCR issued ML even if the parties do not reside in that license.
place? It is only a mere irregularity, but the officer may be administratively, criminally, or
civilly liable. 3. Valid Marriage Ceremony
The valid marriage ceremony takes place in the presence of the solemnizing officer and at least 2
2. What are the requirements? witnesses of legal age, and in this ceremony, the contracting parties declare publicly that they take
The parties will be required to fill up the standard pro-forma application with their each other as husband and wife.
information. The application should be supported by the original copy of the Birth Certificate The absences of the required two witnesses, or if the two witnesses are not of age, constitute only a
of the applicants, in the absence of the original a Certified True Copy, in the absence of mere irregularity in the marriage ceremony, the marriage remains valid. Failure of the contracting
which, a Baptismal Certificate, if wala gyud, Community Tax Certificate, or if wa jud gihapon, parties to declare each other as husband and wife also a mere irregularity.
Affidavit of Two Witnesses attesting the circumstance of the applicants. However, these may
only be dispensed with when the parents of the applicants appear and attest to the fact of Where should the marriage ceremony take place?
the age of the applicants, or when the Local Civil Registrar upon looking at the applicants, is - If it is solemnized by an incumbent member of the judiciary, in open court or in the judge’s
convinced that the applicants are already of age. chamber.
- If it is served by a priest, rabbi, imam, in the place of worship.
If one or both applicants is between the age of 18 – 20, the application should be supported The venue is merely directory, it is not compulsory. Marriage ceremony may be held in other places
by the written parental consent. If one or both applicants is between the ages of 21 – 25, the when the contracting parties request in writing to the solemnizing officer and specify the venue where
application should be supported by the written parental advice. In instances when parental you wish to solemnize your marriage.
consent or advice is required, the applicant should also submit the Certification of Marriage
Counsel. Violation in the rule on venue is a mere irregularity
 Marriage in articulo mortis is not governed by the venue of marriage ceremony Where at the time of the solemnization of the marriage both parties are Filipinos, but one of them acquired
foreign citizenship and obtained a divorce abroad, as ruled in the case of Republic vs. Obrecido, the
CONFLICT OF LAWS RULES ON MARRIAGE reckoning period is not the citizenship at the time of the marriage but the citizenship at the time the
divorce decree was obtained. Under this case, while the Filipino spouse is capacitated to remarry, that does
ART 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the not come as an automatic right. The Filipino spouse is still required to file a petition in court for declaratory
country where they are solemnized, and valid there as such, shall also be valid in this country, except relief asking the court that he/she be declared to be capacitated to remarry in the Philippines.
those prohibited under Articles 35(1), (4), (5) and (6), 36, 37, and 38.
What do you need to prove in the Petition for Declaratory Relief?
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce You have to prove the existence of the divorce decree obtained abroad by submitting the authenticated
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino copy of the Divorce Decree.
spouse shall likewise have capacity to remarry under Philippine law. You also need to prove the foreign law, that the divorce decree was obtained in accordance with that
foreign law.
LEX LOCI CELEBRATIONIS INSOFAR AS MARRIAGE IS CONCERNED (ART 26, par 1): You need to prove that that foreign law allowing divorce authorizes the foreign spouse who obtained the
1. Marriage between foreigners abroad divorce to remarry (Absolute Divorce only; if Restricted Divorce, dili pwede)
By virtue of article 26, it is valid in the Philippines except marriage which is universally recognized as
incestuous and bigamous/polygamous. For the FOREIGN SPOUSE to remarry in the Philippines pursuant to a valid divorce decree abroad, the
2. Marriage between Filipinos abroad requirement is the Certificate of Legal Capacity, not the Divorce Decree or the Death Certificate of his
By virtue of article 26, valid but SUBJECT TO THE PROHIBITIONS UNDER ARTICLE 26. Among the former spouse.
marriages prohibited under article 35, the two marriages (2) and (3) do not constitute as an exception
on the rule of Lex Loci Celebracionis. Only (1),(4),(5)(6). Ang article 35 (2) ug (3) kay absence of formal This is the ruling laid down in the case of Garcia vs. Recio, where the husband was an Australian citizen at
requisites man meaning governed gihapon xa kay lex loci celebrationis man mu govern sa formalities time of obtaining a divorce decree, the wife filed an action to nullify the marriage in the Philippines. The
of contracts, ang uban kay mu fall man xa under nationality theory, hence, governed ang mga husband argued that there is no cause of action to nullify because in the first place, the marriage was
Filipinos sa Article 35 (1),(4),(5) ug (6). already dissolved by virtue of a foreign divorce. One of the arguments of the wife was that the divorce
3. Marriage between Filipino and foreigner abroad decree was not valid in the Philippines because the husband failed to register the copy of the divorce
Lex loci celebrationis, if valid there, valid here but the Filipino is subject to the prohibitions under decree pursuant to Article 13 of the Family Code.
article 26 kay governed xa by Philippine laws. Ang Foreigner dili governed tungod sa nationality RULING:
principle. ONLY THE FILIPINO PARTY IS SUBJECT TO THE PROHIBITIONS. The foreign spouse is subject The requirement under Article 13 does not apply to foreign citizens because for foreigners to remarry in the
to article 21. Philippines, the only requirement is Article 21, which is a Certificate of Legal Capacity. In this case the
Note: husband failed to submit the CLC. Since there is failure in the part of the husband to prove that the divorce
When the exceptions apply only to the Filipino Spouse, it is possible that the marriage will be hybrid, was absolute, there is a need to remand the case to the trial court to determine the issue of whether or not
valid outside but invalid here. Like a marriage between a 15 year old foreigner and a 15 year old the divorce was absolute.
Filipino abroad. According to Paras, consistent with the policy to uphold the validity of marriage, in
that case, we should treat the marriage as valid in the Philippines, although you can always invoke The point here is that the requirement of the submission of the divorce decree in order to remarry, does
Article 17. If we go by the opinion of Paras, then it is not unlikely that a same-sex marriage would be not apply to foreigners. They are governed by article 21.
valid in the Philippines, which is very revolting. SI SIR RANDI MO AGREE NI STA MARIA NGA BOUND SA
PROHIBITIONS ANG FILIPINO SPOUSE. If the divorce decree obtained abroad is invoked as a defense in a case not for purposes of remarriage,
4. Marriage between a foreigner and a Filipino in the Philippines what you need to submit to the court is just an authenticated copy of the decree.
It should follow Philippine laws on marriage but insofar as the foreigner, he is required to comply with
article 21 which requires foreigners to secure a Certificate of Legal Capacity. Suppose the foreigner is a In the case of Bayot vs. Bayot, where a marriage between a Filipino and a foreigner, and a foreigner
15 year old, but capacitated under his national law, if he can secure a Certificate of Legal Capacity, his obtained a divorce, the Filipino spouse filed an action to nullify the marriage before Philippine Courts. The
legal capacity is honored here in the Philippines. foreign spouse moved to dismiss on the ground that it is already moot and academic because the marriage
5. Marriage between foreigners in the Philippines is already dissolved by virtue of divorce.
Philippine laws should govern the validity of the marriage, but the legal capacity of the parties should RULING:
be determined by their national laws pursuant to Article 21. SC sustained the foreign spouse ruling that indeed there is no more need to nullify the marriage under
Philippine law because the Divorce obtained abroad is considered valid under our laws because it was duly
DIVORCE DECREE OBTAINED BY ALIEN ABROAD (ART 26, par 2) proven by the submission of an authenticated copy of the Divorce Decree in accordance with Rule 132
- Shall capacitate the Filipino spouse to remarry under Philippine laws. section 24 and 25 of the Revised Rules of Court.
Article 26, par 2 is specific, it only applies when it is the foreigner obtaining divorce. It will not be valid if it is
the Filipino spouse obtaining the divorce. The purpose here is to capacitate the Filipino whose alien spouse If a document is kept abroad, and you wish to introduce that document as evidence before Philippine
obtained a divorce decree. courts, you don’t just submit the copy of the foreign document. There is a requirement under the rules of
evidence that this foreign document should be authenticated. If you happen to secure a document abroad,
it has to pass through the Philippine Consular Office for authentication. The Red Ribbon is an indication of
authentication. This was duly done in the case of Bayot vs. Bayot. How does the law understand Psychological Incapacity?
Psychological Incapacity refers to a more serious personality disorder clearly demonstrative of an utter
VOID AND VOIDABLE MARRIAGES insensitivity or inability to give meaning and significance to marriage. It is neither a mental nor physical
inability, but it is psychological, meaning behavioral. It is a matter of behavior. For this to be a ground it
DISTINCTION BETWEEN VOID AND VOIDABLE MARRIAGES should be a personality disorder, it is not insanity.
VOID
A void marriage is void ab initio and nonexistent. It is imprescriptible and does not prescribe. It may be What are these common personality disorders constituting Psychological Incapacity?
attacked collaterally. Void Marriages may ONLY be filed by the contracting parties and may be assailed Dependent, Narcissistic, and Anti-Social Personalities
even after the death of either or both parties. These cannot be ratified.
Psychological Incapacity is manifested by physical or overt acts.
VOIDABLE Ex.
Valid until annulled. It is subject to prescription depending on the ground for annulment. It can only be People who cannot decide on their own e.g. Mama’s boy, Papa’s boy behavior; If you exhibit that
attacked directly. Voidable Marriages may be filed by a third party and may ONLY be assailed before the behavioral manifestation, that is tantamount to Dependency, it constitutes psychological incapacity if these
death. These may be result in the inability to perform your marital obligations.

Void marriages are imprescriptible. If you invoke nullity of the marriage as a defense, it is also Essential Marital Obligations:
imprescriptible. (Art. 39) Art 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity and
render mutual help and support.
A. VOID MARRIAGES DUE TO ABSENCE OF ESSENTIAL OR FORMAL REQUISITES
If this personality disorder results in your inability to perform any or all essential marital obligations, you
ART 35. The following marriages shall be void from the beginning: have a ground for psychological incapacity
1. Those contracted by any party below eighteen years of age even with the consent of parents or
guardians; Another example is the Anti-Social Personality disorder or failure to conform with social conduct, when
- There is absence of legal capacity pertaining to age people cannot get along with others, quarrelsome personality, doesn’t respect others. These are behavioral
2. Those solemnized by any person not legally authorized to perform marriages unless such marriages manifestations of Anti-Social personality. If these personality disorders result to failure to perform marital
were contracted with either or both parties believing in good faith that the solemnizing officer had obligations, it is a ground for psychological incapacity.
the legal authority to do so;
- This is considered void due to absence of authority of solemnizing officer Even if a person is found to be suffering from these personality disorders, if it does not result to failure to
3. Those solemnized without a license, except those covered by the preceding Chapter; perform your marital obligations, it does not constitute psychological incapacity under article 36.
4. Those bigamous or polygamous marriages not falling under Article 41; This is illustrated in the case of Tongol vs. Tongol, where the wife was established to be unreasonably
- There is absence of legal capacity, married status a legal impediment jealous and insecure to his husband giving benefits to the employees. These are manifestations of
5. Those contracted through mistake of one contracting party as to the identity of the other; and insecurity. However, SC said that while the wife is admittedly suffering from this kind of personality disorder
- This is considered void due to absence of consent yet there was no evidence that this resulted to her inability to perform her essential marital obligations
6. Those subsequent marriages that are void under Article 53. since the personality disorder resulted only to disagreements with her husband as to how to run their
- When the marriage is declared annulled or void, it is required that the declaration of judgment family business. Theeir marital relationship was only characterized by irreconcilable differences.
should include the liquidation of conjugal properties,distribution of properties, delivery of RULING:
presumptive legitimes. The judgment of nullity or annulment together with the liquidation should This is not psychological incapacity.
be recorded in the Local Civil Registrar or Registrar of Properties. Failure to comply would result The rule is the personality disorder should have a link to the inability to perform, and not just any disability.
in a bar remarriage. It is a requirement under article 36 that the psychological incapacity must be existing at the time of the
---------------------------------------------------------------------------------------------------------------------------------------------- celebration of the marriage or even before, although the physical manifestations occurred after.
-
B. VOID MARRIAGE DUE TO PSYCHOLOGICAL INCAPACITY What are the 3 elements that you should prove in a petition for nullity under article 36?
1. Juridical Antecedence – the psychological incapacity should be rooted in the history of the individual
ART 36. A marriage contracted by any party who, at the time of the celebration, was psychologically antedating marriage. The existence of the personality disorder must be prior to the celebration of the
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if marriage, almost always referring to the childhood of the individual. People who have dysfunctional
such incapacity becomes manifest only after its solemnization. (As amended by Executive Order Number childhood almost always suffer from these psychological incapacities.
227 dated July 17, 1987) In the case of People vs. Buenaventura, psychological incapacity is caused by something not of the
person’s own making. In fact, a psychologically incapacitated person should be viewed more as a
Psychological Incapacity under article 36 has been perceived by many as pseudo-divorce. This is a victim of circumstances, that is why in this case, a petition for nullity under article 36 can not be
compromise between advocates for divorce and those who are against it, in order to balance the interests, awarded moral damages because a psychological incapacitated person does not have bad faith, he is
Article 36 was [Link] law, however, does not define Psychological Incapacity. the victim.
2. Gravity – it must be of such degree of character as would result in the inability to perform marital
obligations. If that personality disorder does not cause inability to perform marital obligations it would Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
not constitute psychological incapacity 1. Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
3. Incurability - there should be no known cure or even if there was a cure, the cure is beyond the means Fourth civil degree – up to first cousin. Beyond that is marriageable.
of the person incapacitated. 2. Between step-parents and step-children;
For purposes of incurablity what is meant by the law is relative incurablity, meaning incurable You can marry your step-father or step-children only if the marriage bond between your real parent
insofar as the other party is concerned. Psychological incapacity may exist only with respect for that and you step parent is dissolved either by death or legal means. However, if your real parent and your
particular spouse. It does not matter if he is psychological incapacitated with other people. step parent begot a child, you cannot marry your step-parent.
3. Between parents-in-law and children-in-law;
If a person is found by the court as guilty of psychological incapacity, and for which the marriage is declared If you have your wife, you cannot marry the mother of your wife, except if there is a surviving issue.
void can therewith contract a subsequent marriage. That is why psychological incapacity is not a ground for 4. Between the adopting parent and the adopted child;
disqualification from contracting a subsequent marriage because of the principle that psychological The adopted child is considered the legitimate child of the adopter. There is no prohibition of a
incapacity is only relative. It is always possible that that person, although psychologically incapacitated with marriage between the adopter and the child of the adopted, your supposed apo.
his former spouse, may be capacitated with regards to his subsequent partner. 5. Between the surviving spouse of the adopting parent and the adopted child;
This contemplates a situation where the adopter dies and has a spouse which is still alive. But if the
In psychological incapacity, either party may file for a petition. The principle that he who comes to court marriage was dissolved legally, this provision does not apply.
should come with clean hands should not abide. The person suffering from psychological incapacity is not 6. Between the surviving spouse of the adopted child and the adopter;
an offender, he is a victim, and thus he does not have bad faith. This also does not apply if the marriage was dissolved legally or by reason other than death.
7. Between an adopted child and a legitimate child of the adopter;
Filing a petition for nullity under article 36 can be an easy proceeding when the other party does not 8. Between the adopted children of the same adopter;
contest. It is always favorable that some arrangements may be made such that the other party will not 9. Between parties where one, with the intention to marry the other, killed that other person’s spouse or
contest the petition. his or her spouse.
Opposition to petition for nullity is likely to arise when the other party is demonized by the one who filed
the petition. Usually, a party is offended and will contest the petition. -----------------------------------------------------------------------------------------------------------------------------------------------
A BETTER STRATEGY would be demonizing yourself, specially where there is no way that the parties can Art 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the
reconcile. Anyway, the court will grant the petition and there is less possibility of opposition from the basis solely of a final judgment declaring such previous marriage void.
other. – TIPS FROM ATTY. TORREGOSA. This contemplates of a situation where the previous marriage is void, but either or both parties contract
subsequent marriage without securing a JUDICIAL DECLARATION OF NULLITY thus, constituting the
Before, particularly in the case of Republic vs. Molina, the Supreme Court imposed a very stringent subsequent marriage void. You need JDN to contract a subsequent marriage pursuant to articles 52 and 53,
requirement for Nullity under Article 36 to be granted. Before, presentation of expert witnesses is to record your liquidations in the JDN in the Local Civil Registrar and Registry of Properties.
indispensable because the cause constituting psychological incapacity was required to be medically and Ex.
clinically proven. Suppose your first marriage is void due to psychological incapacity and you want to contract a subsequent
marriage. For that subsequent marriage to be valid, you need to go to court and secure a JUDICIAL
As the rules now stand, now reinforced by recent Jurisprudence, the guidelines laid down in Molina, DECLARATION OF NULLITY. Suppose the court grants your petition and grants you a JDN. The law requires
although not totally abandoned, the Supreme Court made an admission that this requirement should be that the JDN must contain provisions on the liquidation, partition, distribution of properties, delivery of
relaxed. So under recent ruling, presentation of expert witnesses is no longer indispensable. Although the presumptive legitimes, and custody of the children. Failure to record decisions and liquidations will render
rules provide that the court may on its discretion appoint experts to help the court determine the existence the subsequent marriage by virtue of article 52 and 53.
of psychological incapacity or the parties themselves may, on their own, avail of expert’s opinion, but it is
no longer indispensable. The Supreme Court has never been consistent in its pronouncement as to the rule on the need for JDN vis-
à-vis criminal liability for Bigamy. Historically, the SC has been flip-flopping in the requirement of JDN.
While it is not indispensable, it is always advisable to strengthen your petition. There are cases where the SC said that for purposes of Bigamy, if the previous marriage is void, no liability
----------------------------------------------------------------------------------------------------------------------------------------------- of bigamy can attach even if there was no JDN.
C. VOID MARRIAGES DUE TO IT BEING INCESTUOUS
The argument in support of this advocacy is that under Art. 349 of the RPC, Bigamy consists of 2 elements:
Art. 37. Marriages between the following are incestuous and void from the beginning, whether the
relationship between the parties be legitimate or illegitimate: 1. There has to be a VALID existing prior marriage, and during that marriage, the offender contracts a
1. Between ascendants and descendants of any degree; and subsequent VALID marriage. In other words, there must be TWO VALID MARRIAGES.
2. Between brothers and sisters, whether of the full or half-blood.
----------------------------------------------------------------------------------------------------------------------------------------------- Conversely, if the previous marriage is void, there can be no bigamy.

On the other hand, there are cases where the SC consistently ruled that even if the previous marriage
D. VOID MARRIAGES BY REASON OF PUBLIC POLICY was void, it is not for the parties to assume that their marriage is void but it is for the court so that
even if it is void, the subsequent marriage will constitute bigamy in the absence of a JDN of the Santa Maria’s opinion states that if the previous or subsequent marriage is void, due to
previous marriage. absence of essential or formal requisite, no BIGAMY is incurred even if there is no JDN since
bigamy can only be committed when there are TWO VALID MARRIAGES. This is consistent
What now is the prevailing rule? with the dissenting opinion of Justice Vitug. This does not apply if the marriage is void other
You can prepare either for yourself, or as lawyers, these schools of thought. than the absence of essential or formal requisite. AGREE SI ATTY NI STA MARIA.

SCHOOLS OF THOUGHT WITH REGARDS TO BIGAMY AND JUDICIAL DECLARATION OF NULLITY: -----------------------------------------------------------------------------------------------------------------------------------------------
Subsequent Marriages celebrated before August 3, 1988 and those celebrated after (Effectivity of EFFECTS OF THE TERMINATION OF SUBSEQUENT MARRIAGE DUE TO REAPPEARANCE
the Family Code)
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the
What is the rule if the subsequent marriage is celebrated before FCP? following effects:
Settled Jurisprudence and the book of Santa Maria, you apply the prevailing jurisprudence as of 1. The children of the subsequent marriage conceived prior to its termination shall be considered
the time the marriage was celebrated. If you trace the history of jurisprudence on the need for legitimate and their custody and support in case of dispute shall be decided by the court in a proper
JDN vis-à-vis BIGAMY, you will realize that from time-to-time SC flipfloppes. proceeding;
- Even if one of the parties acted in bad faith, legitimate gihapon ang children born prior to the
In the case of People vs. Mendoza, Sept. 30, 1954, for purposes of remarriage, there is no need termination
for JDN. Since it is not a requirement, entering into a subsequent marriage does not result in 2. The absolute community of property or the conjugal partnership, as the case may be, shall be
BIGAMY. dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share
In the case of Gomez vs. Lipana, June 30, 1970, the Supreme Court ruled that there is a need for of the net profits of the community property or conjugal property shall be forfeited in the favor of
JDN before one can contract subsequent marriage. the common children or, if there are non, the children of the guilty spouse by a previous marriage
In the case of Odayat vs. Amante, June 2, 1977, the Supreme Court reverted to the old rule that or in default of children, the innocent spouse;
there was no need of JDN. - Net profits = Market value at the time of Dissolution – Market value at the time of Marriage
In the case of Wiegel vs. Sempio Diy, August 19, 1986, SC ruled there is a need. - Guilty spouse is still entitled to the Principal Share in the Conjugal Property
In the case of Yap vs. Court of Appeals, October 28, 1986, SC ruled no need. 3. Donations by reason of marriage shall remain valid, except that if the done contracted the marriage in
Finally with the effect of the Family Code, August 3, 1988, SC there is a need. bad faith, such donations made to said done are revoked by operation of law;
4. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a
What is the relevance of enumerating the flip-flopping decisions? beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and
Apiag vs. Cantero and Sta. Maria provides that if the subsequent marriage was solemnized - if the beneficiary is guilty of bad faith, the insurance policy is revocable, distinguished from
before the FCP, the issue on BIGAMY and JDN should be determined as of the controlling decision revoked by operation of law.
at the time the subsequent marriage was solemnized. 5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from
the innocent spouse by testate and intestate succession
What is the rule if the subsequent marriage is celebrated after FCP? - Distinguished from share in conjugal property; applies only if the innocent spouse dies, if such,
the guilty spouse is not entitled to legitime.
1. In the case of Nicdao-Cariño vs. Cariño, February 2, 2001, among others, the SC, while
acknowledging that the previous marriage was void for having been solemnized without a Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab
marriage license, nevertheless stated that the subsequent marriage of one of the parties initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the
was bigamous because the first marriage, though void, was still presumed to be valid other are revoked by operation of law.
considering that there was no JDN of the prior marriage. - Children born are illegitimate
- Rule on forfeiture of net profile does not apply
THERE IS A NEED FOR ONE TO SECURE A JUDICIAL DECLARATION OF NULLITY IN ORDER TO - Donations by marriage are revoked by operation of law
SHED HIMSELF OF THE CRIMINAL LIABILITY OF BIGAMY AND AN ACTION FOR NULLITY - All other donations is void under 739 of the Civil Code.
WOULD NOT CONSTITUTE A PREJUDICIAL QUESTION TO A SUBSEQUENT BIGAMY CASE. - Wills in favor of the other is revoked by law
(Mercado vs. Tan) - Neither one can inherit from the other

2. In the case of People vs. Morigo, the accused was also prosecuted for BIGAMY for Ang BAD FAITH nga gipasabot ani kay if at the time of the marriage, the party knew that the previous
contracting a second marriage. It was established during the trial that the first marriage spouse was still alive
was void because there was no marriage ceremony. The State argued that consistent with
the ruling in Mercado vs. Tan, cannot invoke the nullity of a previous marriage in the These apply only if the subsequent marriage is terminated by virtue of an affidavit of reappearance
absence of a JDN. SC said that there is no BIGAMY because BIGAMY is when a person terminating the presumption of death.
contracts TWO VALID MARRIAGES and since the prior marriage was void due to absence of
formal requisite, there is no marriage to speak of and there can be no liability for bigamy.
E. VOIDABLE MARRIAGES DUE TO DEFECT IN ESSENTIAL REQUISITE (GROUNDS FOR ANNULMENT)
ART 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

1. That the party in whose behalf it is sought to have the marriage annulled was eighteen years or over
but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or GROUNDS PARTY TO FILE THE SUIT PRESCRIPTIVE PERIOD
person having substitute parental authority over the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other and both lived together as husband and wife; 1. No parental consent a. Parent or guardian of a. Anytime before no
- Defect in the essential requisite of legal capacity no consent party consent party reaches
21
2. That either party was of unsound mind, unless such party after coming to reason, freely cohabited b. No consent party
with the other as husband and wife; b. Within five years after
- Defect in the essential requisite of consent attaining 21
2. Insanity a. Sane spouse without a. Anytime before death
3. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of either party
knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
- Defect in the essential requisite of consent b. Relative, guardian or b. Any time before death
person having legal of either party
4. That the consent of either party was obtained by force, intimidation or undue influence, unless the charge of insane
same having disappeared or ceased, such party thereafter freely cohabited with the other as husband spouse
and wife;
- Defect in the essential requisite of consent; vitiated consent c. Insane Spouse c. During lucid interval or
- Ratification ratifies the voidable marriage and validates it after regaining sanity
3. Fraud Injured Party Within 5 years after discovery of
5. That either party was physically incapable of consummating the marriage with the other, and such Fraud
incapacity continues and appears to be incurable; or 4. Vitiated Consent Injured Party Within 5 years from time the
- Considered ground as annulment due to it being essentially destructive of the institution of Marriage Force, Intimidation, or Undue
Influence disappeared
6. That either party was afflicted with a sexually transmissible disease found to be serious and appears to 5. Physical Injured Party Within 5 years after the marriage
be incurable. incapacity/STD ceremony
- Considered ground as annulment due to it being essentially destructive of the institution of Marriage
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DEFECTS OR MERE IRREGULARITIES OF FORMAL REQUISITES DOES NOT NULLIFY THE MARRIAGE BUT
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the RENDERS THE PARTY ADMINISTRATIVELY, CIVILLY OR CRIMINALLY LIABLE
preceding Article:
1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral - When the marriage license is issued by the LCR where none of the contracting parties is a resident
turpitude; - When the marriage is solemnized other than the prescribed venue
- As distinguished from conviction by final judgment of more than 6 years, the ground for legal - When the marriage is solemnized by an incumbent member of the judiciary outside jurisdiction as held in
separation; for it to be an ground for annulment, it should involve moral turpitude regardless of the cases of Navarro vs. Domagtoy, Beso vs. Daguman, Arañes vs Occiano. The book of Santa Maria
the penalty. argues that this should be an absence of authority of the solemnizing officer, HOWEVER, In these cases, SC
2. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other laid down the ruling that the judge is really authorized by law, only that the place where the marriage
than her husband; was solemnized was beyond his territorial jurisdiction, thus a mere irregularity. It would be otherwise if
- Cannot apply to husband concealing the judge was not authorized to solemnize marriage under the law.
3. Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the - Marriages solemnized without witnesses or witnesses are not of age
marriage; or - Marriage License issued without the 10 day posting period
- As distinguished from Number 5 of Article 45, there is concealment regardless of curability - Where the parties failed to sign a marriage contract, so long as the marriage actually took place
4. Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism existing at the - Where the parties failed to declare each other as husband and wife, so long as the marriage actually took
time of the marriage. place
- Where there is no marriage contract, because this is not a formal requisite, it is only proof of marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall
constitute such fraud as will give grounds for action for the annulment of marriage.
PROCEDURES FOR FILING ACTION FOR NULLITY AND ANNULMENT
-----------------------------------------------------------------------------------------------------------------------------------------------
WHERE:
It should be filed in the Family Court of the place where either of the parties has been residing for at least 6 Status of children conceived within a voidable marriage:
months prior to the filing of the action. If the alien spouse is a non resident, you may file the action in the - Legitimate
Family Court of your place or your place where your non-resident can be found.
The Family Courts – refers to RTC’s designated by the SC as Family Courts, while all Family Courts are RTC’s, Status of children conceived or born within a void marriage:
not all RTC’s are Family Courts because only those designated by the SC are Family Courts. - Illegitimate; except on a void marriage pursuant to Article 36 and born before final judgment.

Upon the filing of the petition, the Family Court acquired jurisdiction over the petitioner. But for the court Status of children conceived or born within a subsequent marriage rendered void by failure to comply with
to take cognizance of the action it needs to acquire jurisdiction over the two of them, otherwise, the action Article 52:
may be dismissed in the ground of lack of jurisdiction. - Legitimate by express provision of law

SUMMON: LEGAL SEPARATION

How do you serve a summon? Legal Separation, otherwise known as relative divorce, unlike nullity and annulment, does not involve the
A summon is served personally if the address of the respondent is known. If the address of the respondent dissolution of the marital bond, the only effect of LS is separation from bed and home. Legal Separation
is unknown to the petitioner or if he cannot be found, you have to go to court to ask for leave of court neither spouse can remarry because there are only restrictions in their rights and obligations. The grounds
effected upon him by publication once a week for two consecutive weeks in a newspaper of general for legal separation may exist before, during or after solemnization of the marriage.
circulation in the Philippines and in such places the court may order.
GROUNDS FOR LEGAL SEPARATION
The respondent is now required to file a reply and is given 15 days if jurisdiction is acquired by personal
summon. But if the summon is effected by publication, the respondent is required to file within 30 days. Art 55. A petition for legal separation may be filed on any of the following grounds:

What is the effect of failure to file answer or fails to tender genuine issue? 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child,
or a child of the petitioner;
Under cases other than Nullity and Annulment, when the respondent fails, the court will normally declare - Physical violence should be repeated, while Grossly abusive conduct does not have to be
the respondent in default. The case will continue and the court will decide on the basis of the evidence repeated in order to be a ground for LS
presented by the petitioner. There is a one-way case. 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
- Needs not be repeated
But if the respondent fails to answer or fails to tender a genuine issue under cases of Nullity and 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the
Annulment, the court should direct the office of the public prosecutor to conduct if there was collusion petitioner, to engage in prostitution, or connivance in such corruption or inducement;
between the parties. If collusion exists, PP should report to the court and the parties would be given a 4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
chance to deny and present evidence and if the court is convinced that there was collusion, the case will be 5. Drug addiction or habitual alcoholism of the respondent;
dismissed. On the other hand, if the PP finds no collusion, the court will direct that the case will proceed to 6. Lesbianism or homosexuality or the respondent;
pre-trial and trial. Unlike in ordinary cases, the court cannot render judgment of the pleadings, confession 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or
or stipulation made by the parties. abroad;
8. Sexual infidelity or perversion;
If the defendant contested the petition, there is no danger of collusion and there is no longer need for the - For purposes of the ground, perversion is to be defined as any unnatural sexual act
public prosecutor to investigate. 9. Attempt by the respondent against the life of the petitioner; or
10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
It is indispensable that during trial, where the petitioner is required to present evidence, the State should
be represented by the OSG or OPP as delegated by the OSG. In the absence of which, any judgment the For purposes of this Article, the term “child” shall include a child by nature or by adoption.
court may render is void.
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STATUS OF THE CHILDREN: GROUNDS FOR DENIAL OF PETITION FOR LEGAL SEPARATION

The status of the children whether legitimate or illegitimate, depends on the kind of relationship that the Art 56. The petition for legal separation shall be denied on any of the following grounds:
parties entered into. Children conceived and born without marriage at all, children are illegitimate but
subject to the rights of legitimation. 1. Where the aggrieved party has condoned(forgive) the offense or act complained of;
- Condonation is the act of forgiving the offense after its commission. However, it has been held
Legitimation – is a process of legitimizing an otherwise illegitimate child that condonation implies a condition of future good behavior by the offending spouse. Any
subsequent offense revokes or nullifies the condonation and revives the original offense.
This is possible when at the time of his birth, the parents were legally capacitated to marry. Condonation can no longer be made after the case is filed.
2. Where the aggrieved party has consented to the commission of the offense or act complained of;
 - When either of the spouses agreed to or did not object, despite full knowledge, to the act giving Prayer for taking the Exams
rise to a ground for legal separation before such act was committed. It may also be deduced Lord Jesus, help me do good in this examination in a way which will make you glad ang bring you honor and
from the acts of the spouses glory. Help me understand the questions and see the best way to answer them. Give me peace and
3. Where there is connivance between the parties in the commission of the offense or act constituting confidence in your help as I take this test. Amen.
the ground for legal separation;
- Takes place when the spouse, directly or indirectly, participates in the act which is a ground for Mary Help of Christians, pray for us.
legal separation.
4. Where both parties have given ground for legal separation;
- In Pari Delicto. When both parties commit a ground for legal separation
5. Where there is collusion of between the parties to obtain the decree of legal separation; or
- When the parties enter into a corrupt agreement to manufacture evidence in order to obtain a
decree of legal separation. There must not be an inherent ground, the parties must manufacture
the evidence
6. Where the action is barred by prescription.

PRESCRIPTIVE PERIOD FOR LEGAL SEPARATION

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

Actions for Legal Separation may occur before, during, or after the solemnization of marriage. Prescriptions
should be reckoned from the time the cause OCCURRED.

In an action for nullity and annulment, there is no six month cooling off period. The rule provides that the
court should set the pre-trial and trial period not earlier than six months to give the parties a cooling off
period. This is for the court to give the parties a possible reconciliation, if there is no reconciliation then it
can proceed to trial. This is only applicable for the petition on legal separation but it does not apply to any
other incidental case e.g. physical injury or possession or concubinage, or to compel pendente lite.

EFFECTS OF LEGAL SEPARATION

Art. 63. The decree of legal separation shall have the following effects:
1. The spouses shall be entitled to live separately from each other, but the marriage bond shall not be
severed;
2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute
community or conjugal partnership, which shall be forfeited in accordance with the provisions of
Article 43(2);
3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions
of Article 213 of this Code; and
- Children below seven shall be entrusted to the mother, even if the mother was the offender,
unless the court finds a compelling reason not to do so. Children seven and above shall be given
the privilege to choose.
4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse in the will of the innocent spouse
shall be revoked by operation of law.

Donations and insurance policies in favor of the offending spouse shall be revocable to the discretion of
the innocent spouse. (Article 64)

- End of Notes -