Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan GENERAL PRINCIPLES GR: Ignorance of the law excuses no one from compliance therewith. XPN: 1. Mistake upon a doubtful or difficult question of law 2. Mutual error which results to vitiation of consent 3. Payment by reason of mistake ( solutio indebiti) Doctrine of Processual Presumption or Doctrine of Presumed-Identity Approach – if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local (domestic or internal) law. Requisites of a Valid Waiver of Rights 1. He must actually have the right which he renounces 2. He must have the capacity to make the renunciation 3. Renunciation must be made in a clear and unequivocal unequivocal manner 4. Waiver must not be contrary to law, public order, public policy, morals or good customs or prejudicial to a 3 rd person with a right recognized by law Repeal of Laws 1. Express – contained in the subsequent s ubsequent law NB: When the repealing law is repealed, the original law is not revived unless otherwise provided 2. Implied – requisites: (a) the laws contain the same SM; and (b) the latter is repugnant to the earlier NB: When the subsequent law is repealed, the original law is revived unless otherwise provided Stare Decisis – a point of law already established will, generally, be followed followed by the same determining court and by all courts of lower rank in subsequent cases where the same legal issue was raised Obiter Dictum – an opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it GR: Philippine Penal Laws and those of public security and safety are obligatory upon all who live or sojourn in the Philippine Territory. XPN: provisions to the contrary of: 1. Treaty Stipulations 2. Principles of Public International Law 3. Laws of Preferential Application
Nationality Principle – Philippine laws relating to (1) family rights and duties, or (2) to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, Philippines, although living abroad. Absolute Divorce See case case of Marelyn Tanedo Manalo v. Japanese Spouse: the SC upheld the decision of the CA saying that: A foreign divorce secured by a Filipino is also considered valid in the Philippines, even if it is the Filipino spouse files for divorce abroad.
The court based its decision on its interpretation of Article 26 (2) of the Family Code. The said provision states that when a foreigner spouse obtains divorce allowing him or her to remarry, the Filipino spouse “shall likewise have capacity to remarry u nder Philippine law.” NB: However, the rule on absolute divorce as against Filipino spouses is still the same – it being still contrary to public policy and morality Lex Rei Sitae – with respect to property, be it personal or real, it is subject to the law of the country where it is situated. XPNs: The national law of the person whose succession is under consideration and not the law of the country where the property is situated will govern with respect to the following aspects of succession, testate or intestate: 1. Order of succession 2. Amount of successional rights 3. Intrinsic validity of testamentary provisions 4. Capacity to succeed from a decedent Lex Loci Celebrationis – the forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed Lex Loci Contractus – when what is involved is the nature, construction and validity of contracts; it could either be: 1. Lex Loci Voluntatis – law voluntarily agreed upon by the parties 2. Lex Loci Intentionis – law intended by the parties expressly or implicitly HUMAN RELATIONS Damnum Absque Injuria – the proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie, although the act may result in damage to another, for no legal right has been invaded
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan Principle of Abuse of Rights – the exercise of right ends when the right disappears, and it disappears when it is abused especially to the prejudice of others; elements: 1. There is a legal right or duty 2. It is exercised in bad faith 3. For the sole intent of prejudicing or injuring another Breach of Promise to Marry GR: Per Se is not an actionable wrong XPN: 1. When the woman is a victim of moral seduction 2. When the plaintiff has actually incurred expenses for the wedding – he/she has the right to recover money or property advanced by him or her upon the faith of such promise Accion in Rem Verso – an action for recovery of what has been paid or delivered without just cause or legal ground; requisites: 1. Defendant has been enriched 2. Plaintiff suffered a loss 3. Enrichment of the defendant is without just or legal ground 4. Plaintiff has no other action based on contract, quasi-contract, delict or quasi-delict.
vs. Solutio Indebiti – mistake is an essential requisite here and unlike solution indebiti, action in rem verso is merely an auxiliary action Unfair Competition – what is sought to be prevented is the use of unjust, oppressive or high-handed methods which may deprive others of a fair chance to engage in business or to earn a living; requisites: 1. Injury to a competitor or trade rival 2. Involves acts which are characterized as contrary to good conscience or shocking to judicial sensibilities or otherwise unlawful Effects of Acquittal upon Civil Liability 1. Accused is not the author of the crime complained of – civil liability ex delicto is extinguished (but this does not extend to those arising from quasi-delict or culpa aquiliana) 2. Acquittal based on Reasonable Doubt – accused is NOT exempt from civil liability ex delicto which may be proved by preponderance of evidence only GR: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged is deemed instituted with the criminal action XPN: 1. Waiver of the Civil Action
2. 3.
Reserves the right to institute it separately Institutes the Civil Action prior to the criminal action
Prejudicial Question – that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal; elements: 1. A previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and 2. The resolution of such issue determines whether or not the criminal action may proceed. PERSONS AND FAMILY RELATIONS PERSONS AND PERSONALITY Juridical Capacity – the fitness to be the subject of legal relations; it is inherent in every natural person; it is only lost through death; and it cannot be limited or restricted Capacity to Act – the power to do acts with legal effects; it is not inherent but is acquired; it may be lost through other means or circumstances; and it can be limited or restricted Civil Interdiction – an accessory penalty imposed upon the accused whose penalty is not lower than RT; effects: 1. Deprivation of the rights of Parental Authority or guardianship 2. Deprivation of Marital Authority 3. Deprivation of the right to manage his property 4. Deprivation of the right to dispose of his property by any act or conveyance inter vivos. Civil Personality – is the aptitude of being the subject of rights and obligations; it begins from birth (after the complete delivery from the mother’s womb or after the cutting of the umbilical cord) Consequences of the Provisional Personality of Conceived Child 1. The right to be a done of simple donation but the acceptance is made by the persons who would legally represent him if he were already born 2. The right to receive support from his progenitors 3. He may not be ignored by his parents in the testament – otherwise, there is preterition Applicability of Arts. 40, 41, and 42, NCC 1. There is no need to establish the civil personality of the unborn is his/her juridical capacity and capacity to act as a person are not in issue and the case is not whether the unborn child has acquired 2
Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan
2.
any rights or incurred any obligations prior to his/her death that were passed on to or assumed by the child’s parents. One need not acquire civil personality first before he/she could die. Death is defined as the cessation of life. Life is not synonymous with civl personality.
husband and wife for at least 5 years before the marriage; (b) parties have no legal impediment to marry the other during the 5-year period of cohabitation C. Void and Voidable Marriages a. Void Marriages
FAMILY CODE: August 3, 1988 MARRIAGE A. Requisites of Marriage Essential Requisites: (1) legal capacity; and (2) consent of the contracting parties
NB: (a) Absence makes the marriage void; (b) defect in consent makes the marriage voidable Formal Requisites: (1) authority of the solemnizing officer; (2) a valid marriage license – validity is 120 days from issue (issued by the Local Civil Registrar); and (3) marriage ceremony
NB: (a) Absence makes the marriage void. XPN: belief in GF by either or both of the parties that the solemnizing officer has authority to do so; (b) irregularity shall not affect the validity of the marriage BUT the person responsible shall be civilly, criminally and administratively liable. Two Basic Requirements for a Valid Marriage Ceremony: 1. There should be a personal appearance of the contracting parties before a solemnizing officer 2. Their declaration in the presence of not less than 2 witness of legal age that they take each other as husband and wife B. Marriages Exempt from the License Requirement
1. Marriage in Articulo Mortis – in lieu of license, the solemnizing officer issues an Affidavit 2. Marriage in Remote Places – no means of transportation to appear personally before the local civil registrar 3. Marriage among Muslims and Ethnic Cultural Communities – marriage must be solemnized according to their customs, rites and practices NB: Marriage between a Muslim and a Non-Muslim is NOT covered by this rule, thus a marriage license is required 4. Legal Ratification of Marital Cohabitation: (a) man and woman must have been living together as
GR: It is ipso facto void without the need of any judicial declaration of nullity. XPN: For purposes of remarriage – even if the prior marriage is void ab initio, a judicial declaration of its nullity is required before a subsequent marriage is contracted, otherwise, the subsequent marriage is in itself void ab initio for being bigamous. A void marriage can be questioned even after the death of either party; procedure: (may only be done by compulsory or intestate heirs) 1. If the marriage is celebrated during the effectivity of the Civil Code – via petition for declaration of nullity of marriage
NB: A petition for the declaration of nullity of marriage is imprescriptible (XPN: if covered by AM-02-11-10-SC, then it may only be filed during the lifetime of the spouses) 2.
If the marriage is covered by AM 02-11-10-SC – a proceeding for the settlement of the estate of the deceased spouse. Reason: a petition for declaration of nullity of the marriage can only be filed during the lifetime of the spouses, if the marriage is covered by AM 0211-10-SC (March 15, 2003).
The following marriages are void from the beginning: 1. If any of the party is below 18 years old 2. The solemnizing officer is not legally authorized (XPN: belief in GF by either or both of the spouses) 3. Lack of Valid Marriage License 4. Bigamous or Polygamous Marriages XPN: Article 41, Family Code a. The prior spouse (absentee) must have been absent for 4 consecutive years or 2 years where there is danger of death; b. The spouse present has a well-founded belief that the absent spouse is already dead; and c. The spouse present has obtained a judicial declaration of presumptive death. NB: The rule on obtaining the judicial declaration applies only to subsequent marriages celebrated during the effectivity of
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan the Family Code. If it was under the Civil Code, it suffices that the prescribed period of absence is met. 5. Mistake in Identity 6. Non-compliance with Art. 52, FC Rules: If previous marriage is annulled or judicially declared void, the following shall be recorded in the appropriate civil registry: a. Judgment of annulment or of absolute nullity of marriage b. Partition and distribution of the properties of the spouses c. Delivery of the children’s presumptive legitimes. 7. Psychological Incapacity Characteristics: a. Gravity – illness must be shown as downright incapacity or inability, not a mere refusal, neglect or difficulty, much less ill will. b. Juridical Antecedence – must be shown to be existing at the time of the marriage, although overt manifestations may emerge only after the marriage. c. Incurability – must be shown to be medically or clinically permanent or incurable and such incurability may be absolute or even relative only. 8. Incestuous Marriages a. Between ascendants and descendants of any degree, whether legitimate or illegitimate b. Between brothers and sisters, full or halfblood, legitimate or illegitimate 9. By reason of Pubic Policy a. Between Collateral Blood Relatives – up to 4 th civil degree, legitimate or illegitimate b. Between Step-Parents and Step-Children NB: Marriage between step-brothers and step-sisters are now valid under the Family Code c. Between Parents-in-Law and Children-inLaw d. Adoptive Relationships e. By Reason of Intentional Killing of Another’s Spouse 10. Void Marriage under Article 40, FC The article refers to a situation where the prior marriage is void in itself buy a party thereto did not secure a judicial declaration of nullity of the former marriage before contracting a subsequent marriage. NB: This must be distinguished with Art. 35(4), FC since in Article 40, the subsequent marriage is void not because of being bigamous but for failure to comply with the requirement of the law
– but take note that the law still considers the party liable for bigamy; on the other hand, the subsequent marriage under Art. 35(4), FC is void for being bigamous since it was celebrated while a valid marriage is still existing. 11. Both the present spouse and the subsequent spouse acted in Bad Faith, for the both knew at the time of the celebration of the subsequent marriage that the absentee spouse is still alive (re: Article 41, Family Code) Valid Subsequent Bigamous Marriages under Art. 41, Family Code; requisites: 1. The prior spouse (absentee) must have been absent for 4 consecutive years or 2 years where there is danger of death; 2. The spouse present has a well-founded belief that the absent spouse is already dead; and 3. The spouse present has obtained a judicial declaration of presumptive death. (This judicial declaration is obtained when the present spouse wishes to marry and he/she files a summary proceeding of such nature) Termination of the Subsequent Marriage under Art. 41 of the Family Code 1. If marriage was celebrated under the Civil Code, it is terminated by final judgment of annulment in a case instituted by the absent spouse who reappears of by either or the spouses in the subsequent marriage for the ground – reappearance of the absentee spouse 2. If marriage was celebrated during the effectivity of the Family Code, either: (a) by the recording of the affidavit of reappearance; or (b) by by judicial declaration of dissolution or termination of the subsequent marriage. 3. If the declaration of the absentee spouse’s presumptive death is through fraud or is a sham – the remedy of that spouse is NOT to file an affidavit of reappearance BUT an action to annul the judgment declaring him presumptively dead. Effects of Judicial Declaration of Nullity of Marriage GR: It retroacts to the date of its celebration – hence, it is considered as having never taken place at all. XPN: 1. Void ab initio first marriage and there is no judicial declaration of its nullity – subsequent marriage is still considered void because of bigamy (re: Art. 52, FC) 2. There is no retroactive application if the marriage was annulled on the ground of psychological incapacity – thus, subsequent marriage contracted is still considered void for being bigamous. (re: Art. 36, FC)
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan
Property Relations of Void Marriages 1. Art. 147, FC – applies to marriages where the parties are legally capacitated to get married and are not barred by any impediment, but nonetheless the marriage is Void. (i.e. marriage declared void due to psychological incapacity or when it was celebrated without a marriage license) 2. Art. 148, FC – applies where the parties are incapacitated to marry each other (i.e. bigamous marriage or when the parties are below 18 years old) 3. If the subsequent marriage is void by reason of non-compliance with Article 40, the property relations under the Family Code remains the same. b. Voidable Marriages Characteristics: 1. Valid until set aside by final judgment of a competent court in an action for annulment NB: the children conceived or born before the finality of the judgment of annulment are legitimate 2. The defects of a voidable marriage can generally be ratified or confirmed by free cohabitation or prescription; exception: a. Ground is physical incapability to consummate the marriage (impotency) b. Ground is affliction with STD which is serious and incurable 3. Action for annulment is subject to prescriptive period or statute of limitations. 4. Can only be assailed by a direct proceeding and not collaterally 5. Can be questioned only during the lifetime of the parties and not after death of either 6. Ground or defect must be in existence at the time of the celebration of the marriage Grounds for Annulment of Voidable Marriages 1. Lack of Parental Consent 2. Insanity 3. Consent is Obtained Through Fraud a. Non-disclosure of Previous Conviction by final judgment of a crime involving moral turpitude b. Concealment of pregnancy by a man other than the husband at the time of the celebration of marriage c. Concealment of STD at the time of the celebration of the marriage d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism
4. Consent is obtained Through Force, Intimidation or Undue Influence 5. Either Party was Physically Incapable of Consummating the Marriage (Impotence) – this refers to the inability to perform the act itself and not sterility or inability to procreate; must be incurable and unknown to the injured party at the time of the marriage Doctrine of Triennial Cohabitation – if the wife remains a virgin after 3 years of cohabitation, the husband will be presumed impotent 6. Either Party was Afflicted with STD which is Serious and Incurable – must be existing at the time of the marriage (different from the one under fraud since in fraud, it is regardless of its nature) LEGAL SEPARATION Grounds for Legal Separation 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; 4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; 5. Drug addiction or habitual alcoholism of the respondent; 6. Lesbianism or homosexuality of the respondent; 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; 8. Sexual infidelity or perversion; 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. Defenses in Legal Separation 1. Where the aggrieved party has condoned the offense or act complained of; 2. Where the aggrieved party has consented to the commission of the offense or act complained of; 3. Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; 4. Where both parties have given ground for legal separation; 5. Where there is collusion between the parties to obtain decree of legal separation; or
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan 6. Where the action is barred by prescription (5 years from the occurrence of the cause) PROPERTY RELATIONS OF SPOUSES A. General Provisions
What shall govern their property relations? a. The marriage settlement, if one is executed – such must be in writing, signed and executed before the celebration of the marriage. In order to be enforceable as against 3 rd persons, it must be registered in the local civil registry where the marriage contract is registered as well as in the registries of the properties. b. In absence of marriage settlement or in case it is void: i. Conjugal Partnership of Gains – is marriage was celebrated before the Family Code ii. Absolute Community of Property – if marriage is celebrated during the effectivity of the Family Code iii. Complete Separation of Property – if no liquidation of the property regime is made within 1 year from death of the deceased spouse B. Donations by Reason of Marriage or Donation Propter Nuptias
Formalities 1. Personal Property with value more than PHP 5000 – must be in writing to be valid 2. Real Property – must be in public instrument to be valid Donation Propter Nuptias 1. With respect to present property – a. Regime of Absolute Community – no limitation of donation to future spouse b. Other Regimes – not more than 1/5 of the present property, anything in excess is void. 2. With respect to future property – must be in a form of a will. But if the donor is other than the future spouses, such donation is void pursuant to Art. 751 of the Civil Code. C. Systems of Absolute Community
In General The H and W become joint owners of all the properties of the marriage (brought or acquired thereafter), except those excluded under Art. 92, FC. Properties Excluded Properties Acquired Prior The Marriage
Properties Acquired After The Marriage
Those acquired by either Those acquired through spouse who has gratuitous title, including legitimate descendants fruits and income (XPN: by former marriage, the grantor expressly including fruits and provides that they shall income form part of the ACP) For Personal and For Personal and Exclusive Use (XPN: Exclusive Use (XPN: Jewelries) Jewelries) Excluded in the Marriage Settlement Obligations Chargeable to the Absolute Community 1. Support of spouse, common children and legitimate children of either spouse 2. Debts and Obligations a. Ante-nuptial Debts: chargeable to ACP only if it redounded to the benefit of the family b. Those contracted during the marriage by: (a) both spouses; (b) by one spouse with the consent of the other; (c) by one spouse without the consent of the other but redounded to the benefit of the family; or (d) by the administrator-spouse if it redounded to the benefit of the family 3. Others – see Art. 94, Family Code NB: The following shall be paid by the ACP, considered as an advance share of the debtor-spouse, in case that his separate property is not sufficient to pay such: a. Ante-nuptial Debt which did not redound to the benefit of the family b. Support of Illegitimate Children c. Those expenses for a crime or quasi-delict Administration and Disposition of ACP NB: The power to administer by one of the spouses does not include the power to dispose or encumber without the authority of the court or written approval of the other spouse. Continuing Offer – if the disposition or encumbrance is void, the transaction shall be considered as a continuing offer on the part of the consenting spouse and the 3 rd person, and may be perfected upon acceptance or authorization by the other spouse or the court before the offer is withdrawn. NB: This is NOT ratification since a void contract cannot be ratified! Dissolution or Termination of the Absolute Community 1. Death by either spouse – it is mandatory that the ACP must be liquidated a year from the death of the deceased spouse, otherwise: any encumbrance shall be considered void (however, SC said that the sale shall be considered valid so long as there is yet a 6
Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan
2. 3. 4.
5.
partition of the property and the sale is limited only to the ideal share of the selling co-heir) and a regime of complete separation of property shall govern the subsequent marriage of the surviving spouse Finality of a Decree of Legal Separation – this does not include separation in fact Finality of Judgment of Annulment Finality of Judgment declaring the marriage Void – available only to a Void Marriage by reason of noncompliance with Art. 40, FC. Upon Judicial Separation of property during the marriage, voluntarily or for a cause.
D. Conjugal Partnership of Gains
In General A special type of partnership where the H and W 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. NB: Like in ACP, there is also no waiver of Rights, Interests, Shares and Effects (RISE) during marriage. Properties Excluded 1. Properties acquired prior to the marriage (XPN: Net Fruits and those included in the settlement subject to 1/5 limitation [re: donation propter nuptias]) 2. Properties acquired during the marriage by gratuitous title. 3. Properties acquired by right of redemption, barter or exchange with property belonging to only one of the spouses. (NB: the property so redeemed remains to be a separate property even if the money paid for it is from the CPG only that it is subject to reimbursement) 4. Properties purchased with exclusive money. Properties Included 1. Properties acquired by onerous title during the marriage at the expense of the common fund. 2. Property obtained during the marriage from the labor, industry, work or profession of either or both spouses. 3. Fruits from Conjugal Properties and “net fruits” from separate properties. 4. Share in hidden treasure and those acquired through fishing or hunting 5. Those acquired through chance, such as winnings from gambling or betting (losses are taken from exclusive properties) 6. Livestock existing at the dissolution od the partnership, in excess of the number of each kind brought to the marriage by either spouse. Obligations Chargeable to CPG
1. Support of spouse, common children and legitimate children of either spouse 2. Debts and Obligations a. Ante-nuptial Debts: chargeable to CPG only if it redounded to the benefit of the family b. Those contracted during the marriage by: (a) both spouses; (b) by one spouse with the consent of the other; (c) by one spouse without the consent of the other but redounded to the benefit of the family; or (d) by the administrator-spouse if it redounded to the benefit of the family c. Taxes and Expenses The buyers of Conjugal Property must observe 2 kinds of requisite diligence: 1. The diligence in verifying the validity of the title covering the property 2. The diligence in inquiring into the authority of the transacting spouse to sell conjugal property in behalf of the other spouse. E. Separation of Property of Spouses
When Can It Govern? 1. Agreed upon in Marriage settlement NB: This can be full or partial. In case of partial separation, the separate properties shall pertain to absolute community 2. By Judicial Order: a. Finality of Decree of Legal Separation b. Joint Petition of the Spouses for Voluntary Separation c. Upon petition for Judicial Separation due to a sufficient cause (Art. 135, FC) 3. Failure of SS to liquidate within 1 year from death of the former spouse F. Property Regime of Unions without Marriage
Property Regime under Article 147, Family Code a. Requisites: i. The parties must be capacitated to marry each other; ii. That they exclusively live each other as husband and wife; and iii. Their union is w/o the benefit of marriage or their marriage is void. b. Rule on Distribution of Property i. Wages and Salaries – divided in equal shares ii. Property Acquired during cohabitation – rules on equal co-ownership shall govern. NB: During the cohabitation, the parties are prohibited from disposing by acts inter vivos their respective share in the co-owned property
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan
In case the void marriage is brought about by the BF of one of the spouses, the share of the guilty spouse shall be distributed as follows: a. The common children, if any; b. In the absence of the common children, the surviving descendants of the guilty party; c. In their default, the innocent party.
Property Regime under Article 148, Family Code a. Requisites: i. The man and woman must be incapacitated to marry each other or they do not live exclusively together as husband and wife; and ii. Their union is w/o the benefit of marriage or their marriage is void. b. Rules on Distribution of Properties i. Wages and Salaries – that which earned by him or her are owned by him or her exclusively ii. Property acquired during cohabitation – only the properties that acquired by both the parties thereto through their actual joint contribution of money, property and industry shall be owned by them in common in proportion to their respective contributions. NB: If one of the parties in the cohabitation is validly married to another, his or her share shall form part of the ACP or CPG existing in such valid marriage. THE FAMILY A. The Family as an Institution
Suit between members of the same family “Earnest Efforts” for a compromise must be shown by the parties, as a condition sine qua non, before a case may be filed as against each other. XPN: the following cases are not subject to compromise: a. Jurisdiction of courts b. Civil status of persons c. Future Support d. Future Legitime e. Any ground for legal separation f. Validity of Marriage or Legal Separation B. The Family Home
Requisites in order for the relatives be considered as beneficiaries of the Family Home: 1. They reside therein 2. They are one of those enumerated under Art. 154, FC 3. They depend for legal support from the head of the Family Home Value of Exemption for the Family Home 1. Urban Areas – 300k 2. Rural Areas – 200k
Exception to non execution, forced sale or attachment of the Family Home: 1. Non-payment of Taxes 2. Debts incurred prior to the constitution of the FH 3. Debts secured by mortgages on the premises before or after such constitution 4. Debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building PATERNITY AND FILIATION A. Legitimate Children
Status of Children 1. Generally determined by status of marriage a. Legitimate – conceived or born of a valid marriage b. Illegitimate – conceived and born outside of a valid marriage c. Legitimated – at the time of the child’s conception, the parents of an illegitimate child are not barred from marrying each other or their only impediment is minority and subsequently, they enter into a valid marriage, the child through legitimation becomes legitimate and enjoys all rights and privileges as a legitimate child. d. Children Conceived of AI – WON the sperm is of the husband or the donor the child is legitimate if: (1) husband and wife authorized or ratified such insemination in a written instrument; and (2) such written instrument is executed and signed by them before the birth of the child. e. Surrogate Mother Contract – such agreement is not recognized under the Philippine Law it being contrary to law, morals and public policy. 2. Presumption of Legitimacy a. A child conceived through a wife’s infidelity to another man while legally married to her husband, is considered as a legitimate child of the husband and wife for that child was conceived during a valid and subsisting marriage. b. Referring to (a.) the mother cannot declare against the child’s legitimacy by denying the paternity of her husband. Impugning Legitimate Child’s Legitimacy a. Who can impugn: GR: Personal Right of the Husband XPN: Heirs of the husband; if: i. The husband dies before the expiration of the prescriptive period;
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan ii. The husband dies after the filing of the action without desisting therefrom; and iii. If the child was born after the death of the husband b. Prescriptive Period of Action to Impugn Legitimacy i. 1 year from knowledge of birth or recording of such birth in the civil register – if the husband or his heirs resides in the city or municipality where the birth took place or was recorded ii. 2 years – if the husband or his heirs do not reside at the place of birth or where it was recorded, but are all residing in the Philippines iii. 3 years – if husband or heirs reside abroad c. Grounds to Impugn Legitimacy i. Physical Impossibility of Sexual Intercourse – or within the first 120 days of the 300 days immediately preceding the birth of the child: (a) Impotency (not sterility) (b) Fact that they are living separately and sexual intercourse was impossible (c) Serious Illness of the husband which absolutely prevented sexual intercourse ii. Biological or Scientific Reasons (i.e. the written authorization of either parent was obtained through mistake, fraud, violence, intimidation or undue influence) d. Legitimacy of the Child is NOT subject to a collateral attack but only through a direct action brought for that purpose Collateral Attacks like: (a) an action for reconveyance; (b) action for partition; (c) petition for correction of entries under R. 108, ROC Effect of Termination of Marriage and Remarriage of Mother on Child’s Status a. Applicability of Article 168, FC i. Requisites: (a) A previous marriage is terminated (b) The mother contracted another marriage within 300 days after the termination of the previous marriage (c) A child is born within 300 days after the termination of previous marriage ii. Rules in determining Paternity: (a) The child belongs to the first marriage and the first husband is considered the father if: (1) it be born BEFORE 180 days after the solemnization of the second marriage; and (2) within 300 days after the termination of the previous marriage. (b) The child belongs to the first marriage and the first husband is considered the father if: (1) it be born AFTER 180 days after the solemnization of the second marriage; and (2) even if born within 300 days after the termination of the previous marriage.
Rights of a Legitimate Child 1. Right to use surnames of the mother and father 2. Right to Receive Support 3. Successional Rights 4. Citizenship – only legitimate children follows the citizenship of the father B. Proof of Filiation
Accepted Proofs of Filiation 1. The record of birth appearing in the civil register or a final judgment 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. a. Private Handwritten Instrument – (a) there must be a statement of admission of filiation; and (b) the handwritten instrument must be signed by the parent concerned NB: If this is the lone evidence, both requirements must be followed to be given weight; however, if it is mere corroborative of another evidence, absence of the signature of the parent concerned will not invalidate the instrument 3. The open and continuous possession of the status of a legitimate child; or 4. Any other means allowed by the Rules of Court and special laws. (i.e. DNA Test, Rule 130 ROC) by totality of evidence Who can file action to claim filiation a. Legitimate Filiation GR: the Child claiming such filiation XPN: His heirs when: (a) the child dies during minority; or (b) child dies during state of minority b. Illegitimate Filiation GR: the Child claiming such filiation XPN: His heirs when: (a) the child dies during minority; or (b) child dies during state of minority Prescriptive Periods to file action to claim filiation a. Legitimate Filiation GR: during the lifetime of the child XPN: in exceptional cases, 5 years from death of the child b. Illegitimate Filiation (a) If action is based on admission of paternity or birth certificate or written instrument GR: during lifetime of child even after death of putative father XPN: Heirs in exceptional cases (b) If action is based on either: (1) open and continuous possession of illegitimate status; or
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan (2) any other action allowed by the ROC or special laws RULE: only during the lifetime of the alleged parent NB: since the FC makes no distinction as to WON the child is a minor when the father dies – the court gives the child 4 years from the time of attaining the age of majority. C. Illegitimate Children
Rights of an Illegitimate Child 1. Right to use surname of the mother unless the child acquires the right to use the surname of the illegitimate father via (a) express recognition in certificate of birth; or (b) admission of paternity of the father in a public document or a private handwritten instrument 2. Parental Authority: with the mother even if the illegitimate child is recognized by the illegitimate father 3. Right to Receive Support (re: community property) 4. Successional Rights 5. Citizenship – only legitimate children follows the citizenship of the father D. Legitimation Is the process provided under our law where the status of a child conceived and born out of wedlock is improved, by operation of law, from illegitimacy to that of legitimacy by the mere subsequent marriage of the parents. Reckoning Point – the child’s conception NB: the prescriptive period to impugn legitimation by those whose rights may be prejudiced is 5 years from the time of death or either of the parents of the child, from whom the petitioner is a compulsory/intestate heir. ADOPTION A. Domestic Adoption Act (RA 8552)
Who May Adopt (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, Further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. Who May Be Adopted (a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; 10
Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or (f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s).
Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven.
B. Inter-Country Adoption Act (RA 8043)
Rights of an Adopted Child (re: 189-190, FC) Whose Written Consent is Necessary to the Adoption (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and (e) The spouse, if any, of the person adopting or to be adopted. Instances when Adoption may be Rescinded Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code. Effects of Rescission If the petition is granted, the parental authority of the adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate.
When Allowed The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps will be taken to place the child in the Philippines before the child is placed for inter-country adoption: Provided, however, That the maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years. Who May Adopt An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: 1. Is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent: 2. if married, his/her spouse must jointly file for the adoption; 3. has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; 4. has not been convicted of a crime involving moral turpitude; 5. is eligible to adopt under his/her national law; 6. is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; 7. agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; 8. comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited
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Civil Law Notes – Bar 2018 by: Kevin John D. Ampuan agency and that adoption is allowed under his/her national laws; and 9. possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. Who May Be Adopted Only a legally free child may be the subject of intercountry adoption. In order that such child may be considered for placement, the following documents must be submitted to the Board: 1. Child study; 2. Birth certificate/foundling certificate; 3. Deed of voluntary commitment/decree of abandonment/death certificate of parents; 4. Medical evaluation /history; 5. Psychological evaluation, as necessary; and 6. Recent photo of the child.
C. Distinction Between Domestic Adoption and InterCountry Adoption
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