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CIVIL LAW REVIEW Notes and Cases in Persons and Family Relations Part II

Compiled by Lianne Tan

Notes and Cases by Butch San Juan and Annie del Rosario

Edited and Updated by Rodell A. Molina

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V. PROPERTY RELATION BETWEEN HUSBAND AND WIFE

A. IN GENERAL

Art. 74. The property relations between husband and wife shall be governedin the following order:

(1) By marriage settlements executed before the marriage;(2) By the provisions of this Code; and(3) By the local customs.

Balane: The husband and wife can agree on anything they want. This follows the principle of autonomy of contract. Note the order given in Art 74: (1) the marriagesettlement; (2) the provisions of the Family Code; (3) local custom.

In the absence of a marriage settlement, or when such marriage settlement is void,the ACP regime governs.

An exception to the immediately preceding rule is when the 1st marriage isdissolved by reason of death, and the 2nd marriage was entered into before the liquidationof the 1st....the Code requires a mandatory separation of property (130(3))

All modifications to the marriage settlement must be made before the marriage iscelebrated, except: Art. 66, 67, 128, 135 and 136.

General rule: once marriage is celebrated, there is already a property regime and thiscannot be changed: Except:(1) legal separation (ACP/CPG is dissolved)(2) revival of former property regime upon reconciliation

(3) petition of one spouse for separation in case of abandonment or failure to comply withmarital obligations(4) judicial dissolution of regime: joint petition or petition by one spouse for cause. (Art135/136)

Art. 75. The future spouses may, in the marriage settlements, agree upon theregime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlements, or when the



CIVIL LAW REVIEWNotes and Cases in Persons and Family Relations Part II

Butch, Annie and RAM

regime agreed upon is void, the system of absolute community of property asestablished in this Code shall govern.

- ACPCPG

SOPOther if none or void - ACP

Art. 76. In order that any modification in the marriage settlements may bevalid, it must be made before the celebration of the marriage, subject to theprovisions of Articles 66, 67, 128, 135 and 136.

Art. 66. The reconciliation referred to in the preceding Article shall havethe following consequences:

(1) The legal separation proceedings, if still pending, shall thereby beterminated at whatever stage; and

(2) The final decree of legal separation shall be set aside, but the

separation of property and any forfeiture of the share of the guilty spouse alreadyeffected shall subsist, unless the spouses agree to revive their former propertyregime.

The court order containing the foregoing shall be recorded in the propercivil registries.

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

(1) The properties to be contributed anew to the restored regime;(2) Those to be retained as separated properties of each spouse; and(3) The names of all their known creditors, their addresses and the

amounts owing to each.The agreement of revival and the motion for its approval shall be filed

with the court in the same proceeding for legal separation, with copies of both

furnished to the creditors named therein. After due hearing, the court shall, in itsorder, take measures to protect the interest of creditors and such order shall berecorded in the proper registries of properties.

The recording of the order in the registries of property shall not prejudiceany creditor not listed or not notified, unless the debtor-spouse has sufficientseparate properties to satisfy the creditor's claim.

Art. 128. If a spouse without just cause abandons the other or fails tocomply with his or her obligations to the family, the aggrieved spouse may petitionthe court for receivership, for judicial separation of property, or for authority tobe the sole administrator of the conjugal partnership property, subject to suchprecautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph referto marital, parental or property relations.

A spouse is deemed to have abandoned the other when he or she has leftthe conjugal dwelling without intention of returning. The spouse who has left theconjugal dwelling for a period of three months or has failed within the same periodto give any information as to his or her whereabouts shall be prima facie presumedto have no intention of returning to the conjugal dwelling.

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty whichcarries with it civil interdiction;

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(2) That the spouse of the petitioner has been judicially declared anabsentee;

(3) That the loss of parental authority of the spouse of the petitioner hasbeen decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed tocomply with his or her obligations to the family as provided for in Article 101.

(5) That the spouse granted the power of administration in the marriagesettlements has abused that power; and

(6) That at the time of the petition, the spouses have been separated in factfor at least one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for thegrant of the decree of judicial separation of property.

Art. 136. The spouses may jointly file a verified petition with the court forthe voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties.

All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petitionnotified of the filing thereof. The court shall take measures to protect the creditorsand other persons with pecuniary interest.

Art. 77. The marriage settlements and any modification thereof shall be inwriting, signed by the parties and executed before the celebration of the marriage.They shall not prejudice third persons unless they are registered in the local civilregistry where the marriage contract is recorded as well as in the proper registries of property.

Baviera: Marriage settlement/ modification1. in writing2. signed by the parties

3. executed before the marriage4. not prejudice 3Ps unless registered

Balane:

formal requirement of a marriage settlement:in writingin a public or private instrumentto bind third persons, it must be recorded in the registry of property.

Art. 78. A minor who according to law may contract marriage may also enterinto marriage settlements, but they shall be valid only if the persons designated in

Article 14 to give consent to the marriage are made parties to the agreement, subjectto the provisions of Title IX of this Code.

Art. 14. In case either or both of the contracting parties, not having beenemancipated by a previous marriage, are between the ages of 18 and 21, they shall,in addition to the requirements of the preceding articles, exhibit to the local civilregistrar, the consent to their marriage of their father, mother, surviving parent orguardian, or persons having legal charge of them, in the order mentioned. Such

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consent shall be manifested in writing by the interested party, who personallyappears before the proper local civil registrar, or in the form of an affidavit madein the presence of two witnesses and attested before any official authorized by lawto administer oaths. The personal manifestation shall be recorded in bothapplications for marriage license, and the affidavit, if one is executed instead, shallbe attached to said applications.

Title IX (Parental Authority)

Balane: The rule here remains unchanged by R.A. 6809...a minor between 18-21 can enter into a marriage settlement but the parents or guardians must sign.

A creditor is entitled to assume that the property regime is ACP if the marriagesettlement is not recorded...except where the creditor had actual knowledge.

Art. 79. For the validity of any marriage settlements executed by a personupon whom a sentence of civil interdiction has been pronounced or who is subject to

any other disability, it shall be indispensable for the guardian appointed by acompetent court to be made a party thereto.

Art. 80. In the absence of a contrary stipulation in a marriage settlements, theproperty relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:(1) Where both spouses are aliens;(2) With respect to the extrinsic validity of contracts affecting property not

situated in the Philippines and executed in the country where the property is located;and

( LEX SITUS - contract - abroad - property - abroad)

(3) With respect to the extrinsic validity of contracts entered into in thePhilippines but affecting property situated in a foreign country whose laws requiredifferent formalities for their extrinsic validity.

( LEX SITUS - contract - Philippines - property - abroad)Balane: Does this article imply that the couple can validly stipulate that a foreign lawshall govern their relation?Art. 80(3) seems inconsistent with Art. 17 (1) NCC....Balane believes that this article(80(3)) should be suppressed.

Art. 81. Everything stipulated in the settlements or contracts referred to inthe preceding articles in consideration of a future marriage, including donationsbetween the prospective spouses made therein, shall be rendered void if the marriagedoes not take place.

However, stipulations that do not depend upon the celebration of themarriage shall be valid.

Balane: This article is inconsistent with Art. 86(1)

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Suppose that donation propter nuptias are made but the marriage is not celebrated...whathappens to the donations:Art. 81...VoidArt. 86...revocableBalane: if the marriage is not celebrated, the DPN should be void.

Donation Propter Nuptias (requisites)(1) made before marriage(2) in consideration of marriage-consideration must be understood in layman's terms, i.e. what motivates one to make thedonation.(3) in favor of one or both of the betrothed.

recipient may be one or both of the betrotheddonor can be anybody.

B. CAPACITY TO EXECUTE MARRIAGE SETTLEMENT

MINOR

Art. 78. A minor who according to law may contract marriage may also enterinto marriage settlements, but they shall be valid only if the persons designated inArticle 14 to give consent to the marriage are made parties to the agreement, subjectto the provisions of Title IX of this Code.

- Art. 14 - father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned.- Title IX - Parental authority

CIVIL INTERDICTION

Art. 79. For the validity of any marriage settlements executed by a personupon whom a sentence of civil interdiction has been pronounced or who is subject toany other disability, it shall be indispensable for the guardian appointed by acompetent court to be made a party thereto.

C. FORMALITY

Art. 76. In order that any modification in the marriage settlements may bevalid, it must be made before the celebration of the marriage, subject to theprovisions of Articles 66, 67, 128, 135, and 136.

Art. 77. The marriage settlements and any modification thereof shall be inwriting, signed by the parties, and executed before the celebration of the marriage.They shall not prejudice third persons unless they are registered in the local civilregistry where the marriage contract is recorded as well as in the proper registries of property.

D. CONFLICT OF LAW

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Art. 80. In the absence if a contrary stipulation in a marriage settlement, theproperty relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:

(1) Where both spouses are aliens;(2) With respect to the extrinsic validity of contracts affecting property not

situated in the Philippines and executed in the country where the property is located;and

(3) With respect to the extrinsic validity of contracts entered into in thePhilippines but affecting properties situated in a foreign country whose laws requiredifferent formalities for their extrinsic validity.

E. EFFECT OF MARRIAGE NOT TAKING PLACE

Art. 81. Everything stipulated in the settlements or contracts referred to inthe preceding articles in consideration of a future marriage, including donations

between the prospective spouses made therein, shall be rendered void if the marriagedoes not take place. However, stipulations that do not depend upon the celebration of the marriage shall be valid.

F. DONATIONS BY REASON OF MARRIAGE

1. before the celebration of marriage2. in consideration of marriage

3. in favor of one or both of the future spouses

1. Nature

Art. 82. Donations by reason of marriage are those which are made before itscelebration, in consideration of the same, and in favor of one or both of the futurespouses.

Solis v. Barroso

Art. 1279 cannot be applied to donation propter nuptias. Donation propter nuptiasare governed by the rules of ordinary donations. Under Art. 633, for donations of real property to be valid, it must be contained in a public instrument.(not exceptions in Art.633 and 622). Art. 1279 presupposes a valid contract...it cannot apply to a donation propter nuptias conveying real property where form is essential for validity. It may beinferred from Art. 1333 that there may be a valid DPN even if marriage does not take place...insofar as it provides that a ground for "revoking" a DPN is that the marriage doesnot take place.

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Art. 85. Donations by reason of marriage of property subject toencumbrances shall be valid. In case of foreclosure of the encumbrance and theproperty is sold for less than the total amount of the obligation secured, the doneeshall not be liable for the deficiency. If the property is sold for more than the totalamount of said obligation, the donee shall be entitled to the excess.

Baviera Case:

SERRANO V. SOLOMON [105 P 998 (1959)] - Before the marriage, the future husbandexecuted a purported donation propter nuptias which provides that (1) he donates all his propertiesto his future children, if any; or (2) if there are none and he dies before his wife, one-half of his

properties and those acquired during the marriage shall go to his brothers and sisters; or (3) if there are no children and his wife dies before him, one half of all his properties and those acquiredduring the marriage shall go TO THOSE WHO REARED HIS WIFE (plaintiff). The wife prede-ceased him and plaintiff filed an action to enforce the donation. There is no valid donation propter nuptias. While the donation was made before the marriage, it was not made in consideration of marriage, because marriage was not the only consideration for the donation since other conditionswere imposed; and even if in consideration of the marriage, it was not in favor of one or both of the spouses, but IN FAVOR OF 3Ps or persons other than the spouses. It is not a valid donation

inter vivos because it was not accepted by the donee in the same or a different instrument. It is nota donation mortis causa because it did not comply with the formalities of wills. Hence, thedonation is void.

2. Form

Art. 83. These donations are governed by the rules on ordinary donationsestablished in Title III of Book III of the Civil Code, insofar as they are not modifiedby the following articles.

Art. 84. If the future spouses agree upon a regime other than the absolutecommunity of property, they cannot donate to each other in their marriagesettlements more than one-fifth (1/5) of their present property. Any excess shall beconsidered void.

Donations of future property shall be governed by the provisions ontestamentary succession and the formalities of wills.

Art. 748. The donation of a movable may be made orally or in writing.An oral donatiion requires the simultaneous delivery of the thing or of the document

representing the right donated.If the value of the personal property donated exceeds five thousand pesos (P5,000), the

donation and the acceptance shall be made in writing. Otherwise, the donation shall be void. (CivilCode.)

Art. 749. In order that the donation of an immovable may be valid, it must be madein a public document, specifying therein the property donated and the value of the chargeswhich the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate publicdocument, but it shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notifiedthereof in an authentic form, and this step shall be noted in both instruments.

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Balane: This article applies only if the regime agreed upon is one other than the ACP. If the regime is ACP, there is really no sense in making DPN's to each other, because DPN'smade between the two become community property. In a CPG and a regime of AbsoluteSeparation, DPN's made are not communalized.

The ordinary limitations to donations apply. i.e. one cannot donate all of his/her property,leaving nothing to him/herself.

With regard to future property, a donation may be made only by will, and only as to thedisposable portion.

3. Distinguished from donations inter vivos

a. Consideration and Donee

Art. 87. Every donation or grant of gratuitous advantage, direct or indirect,

between the spouses during the marriage shall be void, except moderate gifts whichthe spouses may give each other on the occasion of any family rejoicing. Theprohibition shall also apply to persons living together as husband and wife without avalid marriage.

Balane: This article does not refer to donation propter nuptias.

Matabuena v. Cervantes

The prohibition under Art. 133 of the CC regarding donations made betweenspouses during the marriage must apply likewise to a common-law relationship. The policy behind the law, i.e. to protect the would-be donor spouse from the exercise of

undue and improper pressure and influence by the other spouse, is equally or even moreapplicable to the case of common-law relationships.

Art. 82. Donations by reason of marriage are those which are made before itscelebration, in consideration of the same, and in favor of one or both of the futurespouses.

Baviera Cases: NAZARENO V. BIROG [45 O.G. No. 5, p. 268 (1947)] - A donation made to a grandchild of awife by a previous marriage falls under the prohibition Article 133 of the Civil Code (Art. 87,FC). Said prohibition applies notwithstanding the fact that the provision mentions only legitimate

children. (9 Manresa 236).

MATABUENA V. CERVANTES [38 S 284 (1971)] - While Art. 133 of the Civil Code (Art. 87FC) considers as void a "donation between the spouses during the marriage," policy considerationsof the most exigent character as well as the dictates of morality require that the same prohibitionshould apply to a common-law relationship. Citing Buenaventura v. Bautista, if the policy of thelaw is to prohibit donations in favor of the other consort and his descendants because of fear of undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law, then there is every reason to apply the same prohibitive policy to persons livingtogether as husband and wife without the benefit of nuptials. For it is not to be doubted that assent

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to such irregular connection for thirty years bespeaks greater influence of one party over the other,so that the danger that the law seeks to avoid is correspondingly increased. Moreover, it would not

be just that such donation should subsist, lest the condition of those who incurrd guilt should turnout to be better. So long as marriage remains the cornerstone of our family law, reason andmorality alike demand that the disabilities attached to marriage should likewise attach toconcubinage.

b. Revocation

Art. 765. The donation may also be revoked at the instance of the donor, by reasonof ingratitude in the following cases:

(1) If the donee should commit some offense against the person, honor or theproperty of the donor, or of his wife or children under his parental authority;

(2) If the donee imputes to the donor any criminal offense, or any act involvingmoral turpitude, even though he should prove it, unless the crime or the act has beencommitted against the donee himself, his wife or children under his authority;

(3) If he unduly refuses to give him support when the donee is legally or morallybound to give support to the donor.

Art. 760. Every donation inter vivos, made by a person having no children ordescendants, legitimate or legitimated by subsequent marriage, or illegitimate, may berevoked or reduced as provided in the next article, by the happening of any of these events:

(1) If the donor, after the donation, should have legitimate or legitimated orillegitimate children, even though they be posthumous;

(2) If the child of the donor, whom the latter believed to be dead when he made thedonation, should turn out to be living;

(3) If the donor should subsequently adopt a minor child. (Civil Code.)

Art. 86. A donation by reason of marriage may be revoked by the donor inthe following cases:

(1) If the marriage is not celebrated or judicially declared void ab initioexcept donations made in the marriage settlements, which shall be governed byArticle 81;

Art. 81. Everything stipulated in the settlements or contracts referred to inthe preceding articles in consideration of a future marriage, including donationsbetween the prospective spouses made therein, shall be rendered void if themarriage does not take place. However, stipulations that do not depend upon thecelebration of the marriage shall be valid.

(2) When the marriage takes place without the consent of the parents orguardian as required by law;

(3) When the marriage is annulled, and the donee acted in bad faith;(4) Upon legal separation, the donee being the guilty spouse;(5) If it is with a resolutory condition and the condition is complied with;(6) When the donee has committed an act of ingratitude as specified by the

provisions of the Civil Code on donations in general.

Baviera: Art. 86 FC compared to Art. 43 FCEven if marriage does not take place, can be revoked Need for action to revoke because the law says "may"If in bad faith, no need for action to revoke, Art. 60 FC, by operation o law.

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Mateo v. Lagua

A donation propter nuptias may be revoked for being inofficious. It is wrong tosay that a donation propter nuptias has an onerous consideration, the marriage in this case

being merely the occasion or motive, not the causa. Being liberalities, they remain subjectto reduction for being inofficious upon the donor's death if it infringes on the legitime of any of the donor's heirs. The DPN in this case was not annuled in its entirety, but only tothe extent that it infringed on the legitime of the donor's heir.

Note that under Art 43(3), a donation is revoked by operation of law, under thecircumstances therein provided. However, Art. 86(1) provides that any revocation inelective, not automatic.

Balane: For acts of ingratitude, refer to Art. 765 of the NCC.

Art. 43. The termination of the subsequent marriage referred to in the

preceding Article (Marriage after declaration of presumptive death of absent spouse)shall produce the following effects:

xxx(3) Donations by reason of marriage shall remain valid, except that if the

donee contracted the marriage in bad faith, such donations made to said donee arerevoked by operation of law.

Art. 50. The effects provided for by paragraphs (2), (3), (4), and (5) of Article43, and 44 shall also apply in the proper cases to marriages which are declared voidab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition

and distribution of the properties of the spouses, the custody and support of thecommon children, and the delivery of their presumptive legitimes, unless suchmatters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or theconjugal partnership shall be notified of the proceedings for liquidiation.

In the partition, the conjugal dwelling and the lot on which it is situated,shall be adjudicated in accordance with the provisions of Articles 102 and 129.

Baviera Case:

SOLIS V. BARROSO [53 P 912 (1928)] - A donation propter nuptias of lands in a private instru-ment is not valid because the law requires donations of real property to be made in a publicinstrument. A donation propter nuptias is not onerous and thus must necessarily be contained in a

public instrument. While the marriage is indeed its consideration it is not so in the sense of beingnecessary to give birth to the obligation. In fact, a donation propter nuptias remains valid even if the marriage does not take place provided it is not revoked within the period allowed by law. Themarriage in donation propter nuptias is rather a resolutory condition which as such presupposes theexistence of the birth of the obligation.

c. Extent of Property Donated

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- as to spouses, not > 1/5 of present property- as to 3Ps, not limit provided not officious (Art. 750 CC)

Art. 752. The provisions of article 750 notwithstanding, no person may give orreceive, by way of donation, more than he may give or receive by will.

The donation shall be inofficious in all that it may exceed this limitation. (CivilCode.)

- donee beware that donation revocable!

Art. 750. The donation may comprehend all the present property of the donor, orpart thereof, provided he reserves, in full ownership or in usufruct, sufficient means for thesupport of himself, and of all relatives who, at the time of the acceptance of the donation, areby law entitled to be supported by the donor. Without such reservation, the donation shall bereduced on petition of any person affected. (Civil Code.)

Art. 751. Donations cannot comprehend future property.By future property is understood anything which the donor cannot dispose of at the

time of the donation. (Civil Code.)

Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing,and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (Civil Code.)

Art. 84. If the future spouses agree upon a regime other than the absolutecommunity of property, they cannot donate to each other in their marriagesettlements more than one-fifth of their present property. Any excess shall beconsidered void.

Donations of future property shall be governed by the provisions ontestamentary succession and the formalities of wills.

Baviera Case:

MATEO V. LAGUA [29 S 865 (1969)] - Donations propter nuptias are without onerousconsiderations, the marriage being merely the occasion or motive for the donation, not its causa.Being liberalities, they remain subject to reduction for inofficiousness upon the donor's death, if they should infringe upon the legitime of a forced heir.

G. ABSOLUTE COMMUNITY

Balane:

There is ACP when:-there is no marriage settlement

-there is a marriage settlement and the parties agree on ACP-the marriage settlement is void.

When commences

Art. 88. The absolute community of property between spouses shallcommence at the precise moment that the marriage is celebrated. Any stipulation,express or implied, for the commencement of the community regime at any othertime shall be void.

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- importance: see Art. 92 (1)

Waiver not allowed

Art. 89. No waiver of rights, interests, shares and effects of the absolutecommunity of property during the marriage can be made except in case of judicialseparation of property.

When the waiver takes place upon a judicial separation of property, or afterthe marriage has been dissolved or annulled, the same shall appear in a publicinstrument and shall be recorded as provided in Article 77.

Art. 77. The marriage settlements and any modification thereof shall be inwriting, signed by the parties and executed before the celebration of the marriage.They shall not prejudice third persons unless they are registered in the local civilregistry where the marriage contract is recorded as well as in the proper registriesof property.

The creditors of the spouse who made such waiver may petition the courtto rescind the waiver to the extent of the amount sufficient to cover the amount of their credits.

Co-ownership

Art. 90. The provisions on co-ownership shall apply to the absolutecommunity of property between the spouses in all matters not provided for in thisChapter.

What Constitutes Community Property

Art. 91. Unless otherwise provided in this Chapter or in the marriagesettlements, the community property shall consist of all the property owned by thespouses at the time of the celebration of the marriage or acquired thereafter.

Exceptions

Art. 92. The following shall be excluded from the community property:(1) Property acquired during the marriage by gratuitous title by either

spouse, and the fruits as well as the income thereof, if any, unless it is expresslyprovided by the donor, testator or grantor that they shall form part of the

community property;(2) Property, for personal and exclusive use of either spouse. However, jewelry shall form part of the community property;

(3) Property acquired before the marriage by either spouse who haslegitimate descendants [under CC - children only, but JBL loved his grandchildren] by aformer marriage, and the fruits as well as the income, if any, of such property.

Baviera: Relate to Art. 51 and 53

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Balane: Suppose A and B married under the Family Code. A inherited from his father before the marriage and this becomes community property. If A inherits from his mother during the marriage, this becomes paraphernal property.

The fruits of separate property remain separate under the ACP but become community

property under the CPG.

The following example illustrates an instance where the CPG regime is stricter:A marries B (ACP). They bring nothing into the marriage. All that they inherit,

they get during the marriage. The property thus inherited is separate, and the fruits thereof are likewise separate.

Given the same set of facts, except that the governing regime is CPG, what thespouses inherit during the marriage is separate, but the fruits are communalized. It is inthis sense that the CPG regime is stricter.

Presumption

Art. 93. Property acquired during the marriage is presumed to belong to thecommunity, unless it is proved that it is one of those excluded therefrom.

Charges Upon and Obligations of the Absolute Community

Art. 94. The absolute community of property shall be liable for:(1) The support of the spouses, their common children, and legitimate

children of either spouse; however, the support of illegitimate children shall begoverned by the provisions of this Code on Support;

(2) All debts and obligations contracted during the marriage by the

designated administrator- spouse for the benefit of the community, or by bothspouses, or by one spouse with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

(4) All taxes, liens, charges and expenses, including major or minor repairs,upon the community property;

(5) All taxes and expenses for mere preservation made during marriage uponthe separate property of either spouse used by the family;

(6) Expenses to enable either spouse to commence or complete a professionalor vocational course, or other activity for self-improvement;

(7) Ante-nuptial debts of either spouse insofar as they have redounded to thebenefit of the family;

(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing orcompleting a professional or vocational course or other activity for self-improvement;

(9) Antenuptial debts of either spouse other than those falling underparagraph (7) of this Article, the support of illegitimate children of either spouse,and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in caseof absence or insufficiency of the exclusive property of the debtor-spouse, thepayment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

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(10) Expenses of litigation between the spouses unless the suit is found to begroundless.

If the community property is insufficient to cover the foregoing liabilities,except those falling under paragraph (9), the spouses shall be solidarily liable for theunpaid balance with their separate properties.

Balane: Liabilities of the ACP.

94.1 in case of illegitimate children of either spouse, the community is only subsidiarilyliable.

94.2 all that is required in this case is a determination of the purpose of the obligationcontracted

Luzon Surety v. De Garcia

Any debt contracted by the husband-administrator with the intention of bindingthe community property, must redound to the community property's benefit. Anyobligation incurred by the husband to be chargeable against the community property, must be incurred in the legitimate pursuit of his career, profession, business, and with an honest belief that he is doing right for the benefit of the family.

Gelano v. C.A.

It was an error for the court to hold the spouses liable jointly and severally on anobligation that redounded to the benefit of the community. The community partnership, asa single and separate entity, should be liable for the obligation.

G-Tractors v. C.A.

The obligation incurred here redounded to the benefit of the community partnership, and thus was a partnership obligation. The land where the logging concessionwas located belonged to the family and not to the husband exclusively. Furthermore, theobligation was incurred to enhance productivity for the logging business, a commercialenterprise for gain, which the husband, as administrator had every right to enter into on behalf of the community partnership. The realization of actual profits and benefit on the part of the partnership is not required, it being sufficient to show that the transactionnormally benefits the partnership.

Gambling

Art. 95. Whatever may be lost during the marriage in any game of chance,betting, sweepstakes, or any other kind of gambling, whether permitted or prohibitedby law, shall be borne by the loser and shall not be charged to the community butany winnings therefrom shall form part of the community property.

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Ownership, Administration, Enjoyment and Disposition of the Community Property

Art. 96. The administration and enjoyment of the community property shallbelong to both spouses jointly. In case of disagreement, the husband's decision shallprevail, subject to recourse to the court by the wife for proper remedy, which must

be availed of within five years from the date of the contract implementing suchdecision.

In the event that one spouse is incapacitated or otherwise unable toparticipate in the administration of the common properties, the other spouse mayassume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the writtenconsent of the other spouse. In the absence of such authority or consent, thedisposition or encumbrance shall be void. However, the transaction shall beconstrued as a continuing offer on the part of the consenting spouse and the thirdperson, and may be perfected as a binding contract upon the acceptance by the otherspouse or authorization by the court before the offer is withdrawn by either or bothofferors.

Baviera: Better: unenforceable until ratifiedvoid tapos = continuing offer - weird (Baviera)

Balane: Ownership, administration, enjoyment and disposition of Community property...all joint responsibility and right of both spouses. In case of a spouse'sunjustified refusal to give his/her consent, the other may go to court.

There is no provision on alienation and encumbrance but it is understood that the same isincluded.

Art. 97. Either spouse may dispose by will of his or her interest in the

community property.

Art. 98. Neither spouse may donate any community property without theconsent of the other. However, either spouse may, without the consent of the other,make moderate donations from the community property for charity or on occasionsof family rejoicing or family distress.

Balane: All donations must be made jointly, except moderate donations.

Dissolution of Absolute Community Regime

Art. 99. The absolute community terminates:(1) Upon the death of either spouse;(2) When there is a decree of legal separation;(3) When the marriage is annulled or declared void; or(4) In case of judicial separation of property during the marriage under

Articles 134 to 138.

Art. 134. In the absence of an express declaration in the marriagesettlements, the separation of property between spouses during the marriage shall

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not take place except by judicial order. Such judicial separation of property mayeither be voluntary or for sufficient cause.


(1) That the spouse of the petitioner has been sentenced to a penalty which

carries with it civil interdiction;(2) That the spouse of the petitioner has been judicially declared an

absentee;(3) That loss of parental authority of the spouse of petitioner has been

decreed by the court;(4) That the spouse of the petitioner has abandoned the latter or failed to

comply with his or her obligations to the family as provided for in Article 101;

Art. 101. If a spouse without just cause abandons the other or fails tocomply with his or her obligations to the family, the aggrieved spouse may petitionthe court for receivership, for judicial separation of property or for authority to bethe sole administrator of the absolute community, subject to such precautionaryconditions as the court may impose.


A spouse is deemed to have abandoned the other when he or she has leftthe conjugal dwelling without intention of returning. The spouse who has left theconjugal dwelling for a period of three months or has failed within the same periodto give any information as to his or her whereabouts shall be prima faciepresumed to have no intention of returning to the conjugal dwelling.



In the cases provided for in Numbers (1), (2) and (3), the presentation of the the final judgment against the guilty or absent spouse shall be enough basis forthe grant of the decree of judicial separation of property.



Art. 137. Once the separation of property has been decreed, the absolutecommunity or the conjugal partnership of gains shall be liquidated in conformityof this Code.

During the pendency of the proceedings for separation of property, theabsolute community or the conjugal partnership shall pay for the support of the

spouses and their children.

Art. 138. After dissolution of the absolute community or of the conjugalpartnership, the provisions on complete separation property shall apply.

Balane: Note that dissolution of the ACP is not synonymous with dissolution of themarriage. In cases involving 99.2 and 99.4, there is dissolution of the ACP although themarriage is not dissolved.

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But dissolution of the marriage automatically results in dissolution of the ACP.

Note that when a marriage is declared as a nullity, there is no ACP to dissolve.The dissolution in this case is governed by the rules on co-ownership.

In case of liquidation, the following provisions apply:

(1) dissolution under 99.1...Art 103 governs liquidation(2) dissolution under 99.2...Art 63 and 64 apply (3) dissolution under 99.3...Art 50-52apply(4) dissolution under 99.4...Art 134-137 apply

Effect of separation in fact

Art. 100. The separation in fact between husband and wife shall not affect theregime of absolute community except that:

(1) The spouse who leaves the conjugal home or refuses to live therein,

without just cause, shall not have the right to be supported;(2) When the consent of one spouse to any transaction of the other is required

by law, judicial authorization shall be obtained in a summary proceeding;

(added in FC)

(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spousepresent shall, upon proper petition in a summary proceeding, be given judicialauthority to administer or encumber any specific separate property of the otherspouse and use the fruits or proceeds thereof to satisfy the latter's share.

(note: need for judicial authority)

Art. 101. If a spouse without just cause abandons the other or fails to complywith his or her obligations to the family, the aggrieved spouse may petition the courtfor receivership, for judicial separation of property or for authority to be the soleadministrator of the absolute community, subject to such precautionary conditionsas the court may impose.

The obligations to the family mentioned in the preceding paragraph refer tomarital, parental or property relations.

( Baviera - even if husband gives support)

A spouse is deemed to have abandoned the other when he or she has left theconjugal dwelling without intention of returning. The spouse who has left theconjugal dwelling for a period of three months or has failed within the same periodto give any information as to his or her whereabouts shall be prima facie presumedto have no intention of returning to the conjugal dwelling.

Liquidation of the Absolute Community Assets and Liabilities

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How liquidated

Art. 102. Upon dissolution of the absolute community regime, the followingprocedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of theabsolute community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liablefor the unpaid balance with their separate properties in accordance with theprovisions of the second paragraph of Article 94.

(Forfeiture of net profits)

Art. 94. The absolute community of property shall be liable for:(1) The support of the spouses, their common children, and legitimate

children of either spouse; however, the support of illegitimate children shall begoverned by the provisions of this Code on Support;

(2) All debts and obligations contracted during the marriage by thedesignated administrator-spouse for the benefit of the community, or by bothspouses, or by one spouse with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consentof the other to the extent that the family may have been benefitted;

(4) All taxes, liens, charges and expenses, including major or minorrepairs, upon the community property;

(5) All taxes and expenses for mere preservation made during marriageupon the separate property of either spouse used by the family;

(6) Expenses to enable either spouse to commence or complete aprofessional or vocational course, or other activity for self-improvement;

(7) Antenuptial debts of either spouse insofar as they have redounded tothe benefit of the family;

(8) The value of what is donated or promised by both spouses in favor of

their common legitimate children for the exclusive purpose of commencing orcompleting a professional or vocational course or other activity for self-improvement;

(9) Antenuptial debts of either spouse other than those falling underparagraph (7) of this Article, the support of illegitimate children of either spouse,and liabilities incurred by either spouse by reason of a crime of a quasi-delict, incase of absence or insufficiency of the exclusive property of the debtor-spouse, thepayment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

(10) Expenses of litigation between the spouses unless the suit is found tobe groundless.

If the community property is insufficient to cover the foregoing liabilities,except those falling under paragraph (9), the spouses shall be solidarily liable forthe unpaid balance with their separate propertied.)

(3) Whatever remains of the exclusive properties of the spouses shallthereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community shallconstitute its net assets, which shall be divided equally between husband and wife,unless a different proportion or division was agreed upon in the marriagesettlements, or unless there has been a voluntary waiver of such share as provided inthis Code. For purposes of computing the net profits subject to forfeiture inaccordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the

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increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

Art. 43. The termination of the subsequent marriage referred to in thepreceding Article shall produce the following effects:

xxx(2) The absolute community of property or the conjugal partnership, as

the case may be, shall be dissolved and liquidated, but if either spouse contractedsaid marriage in bad faith, his or her share of the net profits of the communityproperty or conjugal partnership property shall be forfeited in favor of thecommon children or if there are none, the children of the guilty spouse by aprevious marriage or, in default of children, the innocent spouse.

Art. 63. The decree of legal separation shall have the following effects:xxx(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 netprofits earned by the absolute community or the conjugal partnership, which shallbe forfeited in accordance with the provisions of Article 43 (2).

xxx.)

(5) The presumptive legitimes of the common children shall be deliveredupon partition, in accordance with Article 51.

Art. 51. In said partition, the value of the presumptive legitimes of allcommon children, computed as of the date of the final judgment of the trial court,shall be delivered in cash, property or sound securities, unless the parties, bymutual agreement judicially approved, had already provided for such matters.

The children or their guardian, or the trustee of their property may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in noway prejudice the ultimate successional rights of the children accruing upon thedeath of either or both of the parents; but the value of the properties already

received under the decree of annulment or absolute nullity shall be considered as

advances on their legitime.)

(6) Unless otherwise agreed upon by the parties, in the partition of theproperties, the conjugal dwelling and the lot on which it is situated shall beadjudicated to the spouse with whom the majority of the common children choose toremain. Children below the age of seven years are deemed to have chosen the mother,unless the court has decided otherwise. In case there is no such majority, the courtshall decide, taking into consideration the best interests of said children.

Balane: Basic steps in liquidation:

1) inventory (Art. 102)-3 sets: community propertylist of separate property of wifelist of separate property of husband

2) payment of community debts pay out of community assets first...if not enough, then pay out of separate property...thehusband and the wife shall be solidarily liable

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3) deliver to each spouse his or her respective share

4) division of the net community assets-note the special rule with regard to the family home...also take note that even after death,the family home remains undivided.

5) delivery of presumptive legitimes

The presumptive legitimes are given in the following cases:1) reappearance of former spouse (102.5; 43.2) which terminates the second marriage2) annulment, not the declaration of nullity, of the marriage3) legal separation (102.5;63.2)4) other cases of dissolution of the ACP/CPG

Effect of death

Art. 103. Upon the termination of the marriage by death, the community

property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shallliquidate the community property either judicially or extra-judicially within one yearfrom the death of the deceased spouse. If upon the lapse of the said period, noliquidation is made, any disposition or encumbrance involving the communityproperty of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage withoutcompliance with the foregoing requirements, a mandatory regime of completeseparation of property shall govern the property relations of the subsequentmarriage.

Balane: Liquidation of the ACP may be done in the settlement proceedings of thedeceased spouse's estate. Liquidation in such a case (death) may likewise be done judicially or extrajudicially. The law requires that liquidation be done within one(1) year from death...if not: any disposition or encumbrance is VOID (103.2) and the subsequentmarriage shall be made subject to a mandatory regime of separation of property...the 2ndmarriage shall be valid, but subject to mandatory absolute separation of property.

Art. 104. Whenever the liquidation of the community properties of two ormore marriages contracted by the same person before the effectivity of this Code iscarried out simultaneously, the respective capital, fruits and income of eachcommunity shall be determined upon such proof as may be considered according tothe rules of evidence. In case of doubt as to which community the existing propertiesbelong, the same shall be divided between the different communities in proportion tothe capital and duration of each.

Baviera: No actual case yet

Balane: The application of this article is possible only for marriages contracted before 3August 1988.

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E.G.1955 A married B

A diedACP/CPG was not liquidated

1965 B remarried to C

1995 C died

B wants to liquidate both marriages. He will then have to apply Art. 104. For propertywhose origin he is unsure of, the ratio/proportion; peso/years formula may be used.

x = no. of years of marriage 1y = capital of marriage 1A = duration of marriage 2B = capital of marriage 2

x = 8 years

y = P2 MA = 30B = P3 M

formula:xy

x value of the property = share of marriage 1xy + AB

ABx value of the property = share of marriage 2

xy = AB

Note that in cases of marriages under the Family Code made subject to mandatory absoluteseparation, Art. 104 will never apply.

H. CONJUGAL PARTNERSHIP OF GAINS

General Provisions

Art. 105. In case the future spouses agree in the marriage settlements that theregime of conjugal partnership of gains shall govern their property relations during themarriage, the provisions in this Chapter shall be of supplementary applicaion.

The provisions of this Chapter shall also apply to conjugal partnerships of gainsalready established between spouses before the effectivity of this Code, without prejudice tovested rights already acquired in accordance with the Civil Code or other laws, as providedin Article 256.

Art. 256. This Code shall have retroactive effect insofar as it does notprejudice or impair vested or acquired rights in accordance with the Civil Code orother laws.

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Art. 106. Under the regime of conjugal partnership of gains, the husband and wifeplace in a common fund the proceeds, products, fruits and income from their separateproperties and those acquired by either or both spouses through their efforts or by chance,and upon dissolution of the marriage or of the partnership, the net gains or benefits

obtained by either or both spouses shall be divided equally between them, unless otherwiseagreed in the marriage settlements.

Balane: Note that at the start of the marriage, the common fund is at 0 balance.

Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugalpartnership of gains.

Art. 88. The absolute community of property between spouses shallcommence at the precise moment that the marriage is celebrated. Any stipulation,express or implied, for the commencement of the community regime at any othertime shall be void.

Art. 89. No waiver of rights, interests, shares and effects of the absolutecommunity of property, or after the marriage has been dissolved or annulled, thesame shall appear in a public instrument and shall be recorded as provided inArticle 77. The creditors who made such waiver may petition the court to rescindthe waiver to the extent of the amount sufficient to cover the amount of theircredits.

Art. 77. The marriage settlements and any modificayion thereof shall be inwriting, signed by the parties and executed before the celebration of the marriage.They shall not prejudice third persons unless registered in the local civil registrywhere the marriage contract is recorded as well as in the proper registries of property.

Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapteror by the spouses in their marriage settlements.

Ansaldo v. Sheriff

The bank accounts garnished herein were conjugal property and the same may not belevied upon to pay for personal obligations. The money in the bank accounts were earned asfruits derived from paraphernal property. As such, they became assets of the conjugal partnership. No proof was shown here that the obligations were contracted for the benefit of the

partnership. Furthermore, the sheriff may not levy on 1/2 of the amount in these accounts as thesupposed share of the husband. A spouse's share in the conjugal assets is merely inchoate andcannot be determined until after dissolution of the partnership.

Exclusive Property of Each Spouse

Art. 109. The following shall be the exclusive property of each spouse:(1) That which is brought to the marriage as his or her own; [PLATA V. YATCO]

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(2) That which each acquires during the marriage by gratuitous title;(3) That which is acquired by right of redemption, by barter or by exchange with

property belonging to only one of the spouses; and(4) That which is purchased with exclusive money of the wife or of the husband.

Castillo v. Pasco

The fishpond is 1/6 paraphernal and 5/6 conjugal. The first P1000 was paid out of the paraphernal property of the wife. Of this amount, P600 was a debt owed to the wife by thevendor. It is presumed that this debt could bind only the wife since there was no showing thatthe husband authorized the wife to contract this debt. The P400 was paid out of proceeds fromthe sale of the wife's paraphernal property. The rest of the purchase price was paid out of partnership funds. The fact that the loan entered into to pay this purchase price was secured bymortgages over paraphernal property belonging to the wife did not make these obligations (loans) paraphernal. The mortgage was merely an accessory obligation. The principal obligation whichis the loan pertained to the conjugal partnership.

Balane: Although the terms are used interchangeably, the technical definitions of the followingterms are as follows:

paraphernal property: exclusive property of the wifecapital: exclusive property of the husband.

The owner has absolute dominion over his separate property.

With regard to separate property, the owner spouse may sue alone. With regard to the fruits of such separate property, since the same belongs to the partnership, both spouses must join in ini-tiating suit.

e.g. In a case where the separate property is being leased out...the owner spouse may sue alonefor eviction, but must be joined by the other spouse in a suit over rentals.

Art. 110. The spouses retain ownership, possession, administration and enjoymentof their exclusive properties.

Either spouse may, during the marriage, transfer the administration of his or herexclusive property to the other by means of a public instrument, which shall be recorded inthe registry of property of the place where the property is located.

Ong v. CA

The mere use of the surname of the husband in the tax declaration of the subject propertyis not sufficient proof that said property was acquired during the marriage and is therefore conju-gal. It is undisputed that the subject parcel of land was declared solely in the wife's name,although the house built thereon was declared in the name of the spouses. Under such circum-stances, the Court held that the subject lot was the paraphernal property of the wife and thusliable for her personal debts.

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Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone incourt to litigate with regard to the same.

Lim Queco v. Cartagena (Spanish case)

Palanca v. Smith Bell

When a loan is negotiated by a husband upon property belonging to his wife, with theconsent of the latter, the money becomes conjugal property, and if the funds are later invested inthe construction of a house, the building is likewise conjugal property and is liable for debts of the husband. The property in question was a parcel of land belonging to the wife which wasgiven by the husband as a guaranty for a loan contracted by him. The money obtained throughthe loan was later used for the construction of the house.

Balane: The proceeds of the loan pertain to the borrower. The borrower in this case was the partnership, regardless of the fact that the separate property of the wife was used as a security inobtaining the loan.

Art. 112. The alienation of any exclusive property of a spouse administered by theother automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse.

Art. 113. Property donated or left by will to the spouses, jointly and withdesignation of determinate shares, shall pertain to the donee-spouse as his or her ownexclusive property, and in the absence of designation, share and share alike, withoutprejudice to the right of accretion when proper.

Art. 753. When a donation is made to several persons jointly, it is understood to be in equalshares, and there shall be no right of accretion among them, unless the donor has otherwiseprovided.

The preceding paragraph shall not be applicable to donations made to the husband andwife jointly, between whom there shall be a right of accretion, if the contrary has not been providedby the donor. (Civil Code.)

Accretion - The right of heirs or legatees to unite or aggregate with their shares or portions of the estate the portion of any co-heir or legatee who refuses to accept it, fails tocomply with a condition, becomes incapacitated to inherit, or dies before, the testator. (Black'sLaw Dictionary, p. 19)

Art. 114. If the donations are onerous, the amount of the charges shall be borne by

the exclusive property of the donee-spouse, whenever they have been advanced by theconjugal partnership of gains.

Art. 115. Retirement, benefits, pensions, pensions, annuities, gratuities, usufructsand similar benefits shall be governed by the rules on gratuitous or onerous acquisitions asmay be proper in each case.

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Conjugal Partnership Property

Art. 116. All property acquired during the marriage, whether the acquisitionappears to have been made, contracted or registered in the name of one or both spouses, ispresumed to be conjugal unless the contrary is proved.

Torela v. Torela

While it is true that all property acquired during the marriage is presumed to be conjugal,as above stated, nonetheless, the party who invokes the presumption must first prove that the property was acquired during the marriage. This proof is a condition sine qua non for theapplication of the presumption.

Mendoza v. Reyes

The presumption of conjugality is a strong one. Proof of acquisition of the property in

dispute during the marriage suffices to render the statutory presumption operative.

Magallon v. Montejo

The presumption of conjugality does not apply in a case where there is no proof of marriage between the spouses.

Art. 117. The following are conjugal partnership properties:(1) Those acquired by onerous title during the marriage at the expense of the

common fund, whether the acquisition be for the partnership, or for only one of the

spouses;(2) Those obtained from the labor, industry, work or profession of either or both of

the spouses;(3) The fruits, natural, industrial, or civil, due or received during the marriage

from the common property, as well as the net fruits from the exclusive property of eachspouse;

(4) The share of either spouse in the hidden treasure which the law awards to thefinder or owner of the property where the treasure is found;

(5) Those acquired through occupation such as fishing or hunting;(6) Livestock existing upon the dissolution of the partnership in excess of the

number of each kind brought to the marriage by either spouse; and(7) Those which are acquired by chance, such as winnings from gambling or

betting.However, losses therefrom shall be borne exclusively by the loser-spouse.

Cheesman v. IAC

Even if the wife used conjugal funds to purchase the lot in question, petitioner, who is analien, cannot recover or hold the lot so acquired in view of the constitutional prohibition againstaliens acquiring residential lots other than by hereditary succession. He therefore had no personality to question the subsequent sale of the same property by his wife on the theory that in

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so doing, he is merely exercising the prerogative of a husband in respect to conjugal property.To sustain such a theory would permit indirect controversion of the constitutional prohibition.

Balane: Under 117.1, where conjugal funds were spent, then the property acquired belongs to the partnership

except: 109.3 (pacto de retro acquisition where the right to redemption belongs to one spouse)

Art. 118. Property bought on installments paid partly from exclusive funds of eitheror both spouses and partly from conjugal funds belongs to the buyer or buyers if fullownership was vested before the marriage. In either case, any amount advanced by thepartnership or by either or both spouses shall be reimbursed by the owner or or owner'supon liquidation of the partnership.

Art. 118

Notes: in case of property bought on installment, partly from exclusive property and partly

from conjugal funds, the test to determine ownership is to look at when ownership vested.

If ownership vested before marriage, then the property is exclusiveif ownership vested after marriage, then property is conjugal.

e.g.1985 - A buys property from BF payable in installments...A pays installments withexclusive property1990 - A marries B. The subsequent amortizations on the property are then paid withconjugal funds.

Test: when title was vested.

if title was vested before 1990, then the property is exclusive.if title was vested only after full payment of amortizations, then the property is conjugal.

Art. 119. Whenever an amount or credit payable within a period of time belongs toone of the spouses, the sums which may be collected during the marriage in partialpayments or by installments on the principal shall be the exclusive property of the spouse.However, interests falling due during the marriage on the principal shall belong to theconjugal partnership.

Balane: Test os when is payment due.

Suppose: A lent P1M to Bin the promissory note, it is stipulated that payment shall be on 100 equal monthlyinstallments and that interest shall be at 20% p.a. payments start on Oct 1985A marries B in August 1986

all installments due before August 1986 are paraphernalfor installments due after August 1986:

principal is exclusive property

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interest during the marriage pertain to the partnership...already civil fruits.

Art. 120. The ownership of improvements, whether for utility or adornment, made

on the separate property of the spouses at the expense of the partnership or through theacts or efforts of either or both spouses shall pertain to the conjugal partnership, or to theoriginal owner-spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and anyresulting increase in value are more than the value of the property at the time of theimprovement, the entire property of one of the spouses shall belong to the conjugalpartnership, subject to reimbursement of the value of the property of the owner-spouse atthe time of the improvement; otherwise, said property shall be retained in ownership bythe owner-spouse, likewise subject to reimbursement of the cost of the improvement.

In either case, the ownership of the entire property shall be vested upon thereimbursement, which shall be made at the time of the liquidation of the conjugalpartnership.

Caltex v. Felias

A lot belonging to the parents and later donated by them to their daughter is paraphernal property, and the rule applicable with respect to the building constructedthereon before the donation is that of accessory following the principal. The donationtransmitted to her the rights of a landowner over a building constructed on it.

Padilla v. Padilla

The mere construction of a building from common funds does not automaticallyconvey the ownership of the wife's land (paraphernal) to the conjugal partnership. Theownership of the land is retained by the wife until she is paid the value of the lot as a resultof the liquidation of the conjugal partnership. The partnerhip maintains a usufructuaryright over the said property during the marriage and until liquidation.

Padilla v. Paterno

The separate properties in this case never became conjugal because the conjugalimprovements constructed thereon were destroyed before the value of the paraphernal landon which these improvements were erected was paid to the spouse who owned the paraphernal land. As held in Padilla v. Padilla, payment of such value occurs only at finalliquidation.

Canullas v. Fortun

Where a conjugal house is constructed on land belonging exclusively to thehusband, the land ipso facto becomes conjugal, but the husband is entitled toreimbursement of the value of the land. The conversion from paraphernal to conjugal

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assets should be deemed to retroact to the time the conjugal buildings were firstconstructed thereon. They cannot be considered to have become conjugal only as of thetime their values were paid to the estate of the widow because by that time, the conjugal partnership no longer existed and it could not acquire the ownership of said properties.

Balane: 'Plus value' refers to what the improvement contributes to the increase in thevalue of the whole thing.

Suppose: land P3Mirrigation ditches P2M

but because of the irrigation ditches, the value of the land increases to P4.8Mthe plus value in this case is P1.8Mthe net value of the improvement in P3.8 Min this case, the entire property becomes conjugal.

Under the Family Code, the value to be paid as reimbursement shall be such value at thetime of improvement...in this sense, the Family Code departs from the Padilla ruling

Whether or not the FC modifies the Padilla ruling insofar as it held that ownership shallvest only after full payment at the time of liquidation...Balane is unsure.

Art. 120 applies only on the assumption that the improvement exists at the time of liquidation...if the property is destroyed before liquidation, then 120 does not apply.

If prior to dissolution, the property and the improvement thereon is sold--then the right of the CPG under 120 follows the property...the right of the CPG under 120 is inchoate.

Notes:The following are the steps to be followed in liquidating the CPG:

1. inventory of CP assets2. restitution of advances made to each spouse e.g. Art. 122.33. payment of debts to each spouse e.g. Art. 1204. payment of obligations to 3rd parties5. delivery of exclusive properties6. payment of losses and deterioration of movables belonging to each spouse

reason: CPG is a mere usufructuary of separate properties...not true for ACP7. division8. delivery of presumptive legitimes

Charges Upon and Obligations of the Conjugal Partnership

Art. 121. The conjugal partnership shall be liable for:(1) The support of the spouses, their common children, and the legitimate children

of either spouse; however, the support of illegitimate children shall be governed by theprovisions of this Code on Support;

(2) All debts and obligations contracted during the marriage by the designatedadministrator- spouse for the benefit of the conjugal partnership of gains, or by bothspouses or by one of them with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of theother to the extent that the family may have been benefited;

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(4) All taxes, liens, charges and expenses, including major or minor repairs uponthe conjugal partnership property;

(5) All taxes and expenses for mere preservation made during the marriage uponthe separate property of either spouse;

(6) Expenses to enable either spouse to commence or complete a professional,

vocational, or other activity for self-improvement;(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit

of the family;(8) The value of what is donated or promised by both spouses in favor of their

common legitimate children for the exclusive purpose of commencing or completing aprofessional or vocational course or other activity for self-improvement; and


If the conjugal partnership is insufficient to cover the foregoing liabilities, thespouses shall be solidarily liable for the unpaid balance with their separate properties.

Mariano v. CA

The action filed by plaintiff was incidental to the business in which the defendantwas engaged. The conjugal partnership of defendant Esther and Daniel was liable for debts and obligations contracted by Esther in her business since the income derivedtherefrom, having been used to defray some of the expenses for the maintenance of thefamily and the education of the children, had redounded to the benefit of the partnership.

Art. 122. The payment of personal debts contracted by the husband or the wifebefore or during the marriage shall not be charged to the conjugal partnership exceptinsofar as they redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged

to the partnership.However, the payment of personal debts contracted by either spouse before the

marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets afterthe responsibilities enumerated in the preceding Article have been covered, if the exclusiveproperty or if it should have no exclusive property or if it should be insufficient; but at thetime of the liquidation of the partnership, such spouse shall be charged for what has beenpaid for the purposes above-mentioned.

People v. Lagrimas

Fines and pecuniary indemnities imposed upon the spouses may be chargedagainst the partnership assets even before the liquidation of the partnership. Thetermination of the conjugal partnership is not contemplated as a prerequisite before suchobligations should be paid. If made payable only after liquidation, then the effect would beto exempt the accused from civil liability and the heirs of the offended party would bemade to suffer still further.

Art. 123. Whatever may be lost during the marriage in any game of chance, or inbetting, sweepstakes, or any other kind of gambling whether permitted or prohibited by

29





law, shall be borne by loser and shall not be charged to the conjugal partnership but anywinnings therefrom shall form part of the conjugal partnership property.

Administration of the Conjugal Partnership Property

Art. 124. The administration and enjoyment of the conjugal partnership propertyshall belong to both spouses jointly. In case of disagreement, the husband's decision shallprevail, subject to recourse to the court by the wife for proper remedy, which must beavailed within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate inthe administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrancewhich must have the authority of the court or the written consent of the other spouse. Inthe absence of such authority or consent, the disposition shall be void. However, thetransaction shall be construed as a continuing offer on the part of the consenting spouseand the third person, and may be perfected as a binding contract upon the acceptance bythe other spouse or authorization by the court before the offer is withdrawn by either or

both offerors.

Art. 125. Neither spouse may donate any conjugal partnership property withoutthe consent of the other. However, either spouse may, without the consent of the other,make moderate donations from the conjugal partnership property for charity or onoccasions of family rejoicing or family distress.

Dissolution of Conjugal Partnership Regime

Art. 126. The conjugal partnership terminates:(1) Upon the death of either spouse;(2) When there is a decree of legal separation;(3) When the marriage is annulled or decreed void;(4) In case of judicial separation of property during the marriage under Articles

134 to 138.

Art. 134. In the absence of an express declaration in the marriagesettlements, the separation of property between spouses during the marriage shallnot take place except by judicial order. Such judicial separation of property mayeither be voluntary or for sufficient cause.




(3) That loss of parental authority of the spouse of petitioner has beendecreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed tocomply with his or her obligations to the family as provided for in Article 101;

30







In the cases provided for in Numbers (1), (2), (3), the presentation of thefinal judgment against the guilty or absent spouse shall be enough basis for the

grant of the decree of judicial separation of property.



Art. 137. Once the separation of property has been decreed, the absolutecommunity or the conjugal partnerhsip of gains shall be liquidated in conformitywith this Code.

During the pendency of the proceedings for separation of property, theabsolute community or the conjugal partnership shall pay for the support of thespouses and their children.

Art. 138. After dissolution of the absolute community or of the conjugalpartnership, the provisions on complete separation of property shall apply.

Art. 127. The separation in fact between husband and wife shall not affect theregime of conjugal partnership, except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without justcause, shall not have the right to be supported;

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

(3) In the absence of sufficient conjugal partnership property, the separate propertyof both spouses shall be solidarily liable for the support of the family. The spouse presentshall, upon petition in a summary proceeding, be given judicial authority to administer orencumber any specific separate property of the other spouse and use the fruits or proceedsthereof to satisfy the latter's share.

Art. 128. If a spouse without just cause abandons the other or fails to comply withhis or her obligations to the family, the aggrieved spouse may petition the court forreceivership, for judicial separation of property, or for authority to be the soleadministrator of the conjugal partnership property, subject to such precautionaryconditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to

marital parental or property relations.A spouse is deemed to have abandoned the other when he or she has left the

conjugal dwelling without intention of returning. The spouse who has left the conjugaldwelling for a period of 3 months or has failed within the same period to give anyinformation as to his or her whereabouts shall be prima facie presumed to have nointention of returning to the conjugal dwelling.

Partosa-Jo v. CA

31





Abandonment implies a departure by one spouse with the avowed intent never toreturn, followed by a prolonged absence without just cause, and without in the meantime providing in the least for one's family although able to do so. There must be absolutecessation of marital relations, duties and rights, with the intention of perpetual separation.

In this case, physical separation, coupled with the refusal by the private respondent togive support to the petitioner, sufficed to constitute abandonment as a ground for judicialseparation of their conjugal property.

Liquidation of the Conjugal Partnership Assets and Liabilities

Art. 129. Upon the dissolution of the conjugal partnership regime, the followingprocedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of theconjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts

and obligations of either spouse shall be credited to the conjugal partnership as an assetthereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in theacquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out of theconjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liablefor the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

Art. 121. xxxIf the conjugal partnership is insufficient to cover the foregoing liabilities,

the spouses shall be solidarily liable for the unpaid balance with their separateproperties.

(5) Whatever remains of the exclusive properties of the spouses shall thereafter bedelivered to each of them.

(6) Unless the owner had been indemnified from whatever source, the loss ordeterioration of movables used for the benefit of the family, belonging to either spouse,even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall constitute theprofits, which shall be divided equally between husband and wife, unless a differentproportion or division was agreed upon in the marriage settlements or unless there hasbeen a voluntary waiver or forfeiture of such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered upon

partition in accordance with Article 51.


The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in noway prejudice the ultimate successional rights of the children accruing upon the

32





death of either or both of the parents; but the value of the properties alreadyreceived under the decree of annulment or absolute nullity shall be considered asadvances on their legitime.)

(9) In the partition of the properties, the conjugal dwelling and the lot on which it issituated shall, unless otherwise agreed upon by the parties, be adjudicated to the spousewith whom the majority of the common children choose to remain. Children below the ageof seven years are deemed to have chosen the mother, unless the court has decidedotherwise. In case there is no such majority, the court shall decide, taking intoconsideration the best interests of said children.

Art. 130. Upon the termination of the marriage by death, the conjugal partnershipproperty shall be liquidated in the same proceeding for the settlement of the estate of thedeceased.

If no judicial settlement proceeding is instituted, the surviving spouse shallliquidate the conjugal partnership property either judicially or extra-judicially within oneyear from the death of the deceased spouse. If upon the lapse of the said period no

liquidation is made, any disposition or encumbrance involving the conjugal partnershipproperty of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliancewith the foregoing requirements, a mandatory regime of complete separation of propertyshall govern the property relations of the subsequent marriage.

Art. 131. Whenever the liquidation of the conjugal partnership properties of two ormore marriages contracted by the same person before the effectivity of this Code is carriedout simultaneously, the respective capital, fruits and income of each partnership shall bedetermined upon such proof as may be considered according to the rules of evidence. Incase of doubt as to which partnership the existing properties belong, the same shall be

divided between and among the different partnerships in proportion to the capital andduration of each.

Art. 132. The Rules of Court on the administration of estates of deceased personsshall be observed in the appraisal and sale of property of the conjugal partnership, andother matters which are not expressly determined in this Chapter.

Art. 133. From the common mass of property support shall be given to thesurviving spouse and to the children during the liquidation of the inventoried property anduntil what belongs to them is delivered; but from this shall be deducted that amountreceived for support which exceeds the fruits or rents pertaining to them.

1. Exclusive Properties of Each Spouse

Art. 109. The following shall be the exclusive property of each spouse:(1) That which is brought to the marriage as his or her own;(2) That which each acquires during the marriage by gratuitous title;

33





(3) That which is acquired by right of redemption, by barter or by exchange withproperty belonging to only one of the spouses; [PLATA V. YATCO] and

(4) That which is purchased with exclusive money of the wife or of the husband.

Art. 110. The spouses retain ownership, possession, administration and enjoymentof their exclusive properties.

Either spouse may, during the marriage, transfer the administration of his or herexclusive property to the other by means of a public instrument, which shall be recorded inthe registry of property of the place where the property is located.

Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone incourt to litigate with regard to the same.

Art. 112. The alienation of any exclusive property of a spouse administered by the

other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse.

Art. 113. Property donated or left by will to the spouses, jointly and withdesignation of determinate shares, shall pertain to the donee-spouse as his or her ownexclusive property, and in the absence of designation, share and share alike, withoutprejudice to the right of accretion when proper.

Art. 753. When a donation is made to several persons jointly, it is understood to be inequal shares, and there shall be no right of accretion among them, unless the donor has otherwiseprovided.

The preceding paragraph shall not be applicable to donations made to the husband andwife jointly, between whom there shall be a right of accretion, if the contrary has not been providedby the donor. (Civil Code.)

Accretion - The right of heirs or legatees to unite or aggregate with their shares or portions of the estate the portion of any co-heir or legatee who refuses to accept it, fails tocomply with a condition, becomes incapacitated to inherit, or dies before, the testator. (Black'sLaw Dictionary, p. 19)

Art. 114. If the donations are onerous, the amount of the charges shall be borne bythe exclusive property of the donee-spouse, whenever they have been advanced by theconjugal partnership of gains.

Art. 115. Retirement, benefits, pensions, pensions, annuities, gratuities, usufructsand similar benefits shall be governed by the rules on gratuitous or onerous acquisitions asmay be proper in each case.

Baviera Case:

34





PLATA V. YATCO [12 S 718 (1964)] - Where the wife, during the marriage reacquired paraphernal property previosly sold before the marriage, and mortgaged the same to a 3P, with the husband as co-mortgagor, and later the property was extrajudicially foreclosed by the mortgagee who filed an illegaldetainer case against the husband alone, the wife is not bound by the detainer judgment against her husband.

(1) The conveyance of paraphernal property of the wife to a third person and its reconveyance back to her several months afterwards, does not transform it to conjugal property, in the absence of proof that the money paid in the reconveyance came from conjugal funds.

(2) Where a piece of land is paraphernal in origin, the fact that the husband signed a mortgagdeed thereof as a co-mortgagor does not by itself alone suffice to convert it into conjugal property.

(3) An illegal detainer judgment against the husband alone over a piece of land paraphernal incharacter can not bind nor affect the wife's possession thereof.

(4) A wife not made party defendant to an eviction suit against the husband over possession of land which is paraphernal property of the wife, could validly ignore the judgment of eviction against her husband, and it was no contempt of court for her to do so, because the writ of execution was not lawfulagainst her.

a. Property acquired by right of redemption or exchange with exclusive property of spouse

Baviera Case:

ROSETE V. PROV. SHERIFF [96 P 560 (1954)] - Where the husband was a judgment debtor andconjugal property consisting of lands were levied upon, and the wife redeemed the same with funds

borrowed from her father, such properties have become paraphernal and could no longer be subject of levy for the second time. The wife redeemed the properties, not in behalf of her husband, but as successor in interest in the whole or part of the property, it being then conjugal. The term "successor-in-interest"includes one who succeeds to the interest of the debtor by operation of law or the wife as regards her husband's homestead by reason o the fact that some portion of her husband's title passes to her.

2. Conjugal Property

Art. 116. All property acquired during the marriage, whether the acquisitionappears to have been made, contracted or registered in the name of one or both spouses, ispresumed to be conjugal unless the contrary is proved.

Art. 117. The following are conjugal partnership properties:(1) Those acquired by onerous title during the marriage at the expense of the common

fund, whether the acquisition be for the partnership, or for only one of the spouses;

[ZULUETA V. PANAM](2) Those obtained from the labor, industry, work or profession of either or both of thespouses;

(3) The fruits, natural, industrial, or civil, due or received during the marriage fromthe common property, as well as the net fruits from the exclusive property of each spouse;

(4) The share of either spouse in the hidden treasure which the law awards to thefinder or owner of the property where the treasure is found; [accretion]

(5) Those acquired through occupation such as fishing or hunting;

35





(6) Livestock existing upon the dissolution of the partnership in excess of the numberof each kind brought to the marriage by either spouse; and

(7) Those which are acquired by chance, such as winnings from gambling or betting.However, losses therefrom shall be borne exclusively by the loser-spouse.

Baviera Cases:

CASTILLO V. PASCO [11 S 102 (1964)] - Where the wife and her third husband purchased a fishpondfor the amount of P6,000, the P1,000 coming partly from the wife's funds and partly as set-off of a debtowing to her, the P2,000 coming from a loan obtained by the spouses with the fishpond as collateral, andP3,000 coming from a loan obtained by both spouses secured by the wife's properties, and upon the deathof the husband, the heirs of the husband (by a previous marriage) filed an action for partition andaccounting, the SC held that 1/6 of the fishpond belongs to the wife as her paraphernal property, and 5/6as conjugal property since the funds were obtained from loans secured by both spouses.

(1) Under the Spanish Civil Code, the property acquired for onerous consideration during themarriag was deemed conjugal or separate property depending on the source of the funds employed for itsacquisition, irrespective of whose name the property was acquired.

(2) Property acquired partly with paraphernal property and partly with conjugal funds is held to belong to both patrimonies in common, in proportion to the contributions of each of the total purchase price.

(3) The payment by the widow, after her husband's death, wh her private funds of a loan to theconjugal partnership secured by her paraphernal property, the proceeds of which were used to acquire

property during coverture under the Old Civil Code, does not result in increasing her share in said property but only in creating a LIEN in her favor over the undivided share of the conjugal partnership inthe property so acquired for the repayment of the amount she had advanced.

ZULUETA V. PANAM [49 S 1 (1975)] - Where the Zulueta family filed an action for breach of contractof carriage against an airline company and won, but pending appeal the wife entered into a compromiseagreement with the airline company for P50,000, such agreement is not binding on the conjugal

partnership without the husband's consent. However, the court ordered that the amount paid to the wife be deducted from the aggregate award made in favor of plaintiffs, since upon liquidation of the conjugal partnership, such amount would be due her anyway. Considering that the damages arose out of a breachof contract of carriage for which plaintiffs paid their fare with funds presumably belonging to theconjugal partnership, the said damages fall under the enumeration of conjugal property acquired byonerous title during the marriage at the expense of the common fund.

a. Bought on installments (NA TO PAYMENTS IN FULL)

Art. 118. Property bought on installments paid partly from exclusive funds of eitheror both spouses and partly from conjugal funds belongs to the buyer or buyers if fullownership was vested before the marriage and to the conjugal partnership if such

ownership was vested during the marriage. In either case, any amount advanced by thepartnership or by either or both spouses shall be reimbursed by the owner or owner uponliquidation of the partnership.

Baviera Cases:

JOVELLANOS V. CA [210 S 126 (1992)] - Where during the first marriage, the husband purchased ahouse and lot and paid the installments from conjugal funds, and remarried when his first wife died, andcontinued to make installment payments during the second marriage during which a Deed of Absolute

36





Sale was issued in his name, the property belongs to the conjugal partnership of the second marriage,subject to reimbursements for the amounts paid from the conjugal funds of the first marriage.

Baviera: Unfair because the rights of the heirs of the first marriage became vested upon the deathof their mother, the property should have been divided accordingly. Although subject to

reimbursement, the property was already part of the first CPG.

Historical Background:

PLATA V. YATCO, supra - In this case, the wife purchased property not on installment basis but on full payment basis, the property thus becoming her paraphernal property. The mere fact that she sold it previous to the marriage and reacquired it during the marriage does not transform paraphernal property toconjugal property in the absence of proof that the funds used to repurchase the property came from theconjugal funds.

ALVAREZ V. ESPIRITU [14 S 893 (1965)] - Where the wife acquired land under the Friar Lands Act by installment, and continued making payments during her marriage from conjugal funds, during whichshe completed the payments, the property remains her paraphernal property because of the exceptiona

provision in the Friar Lands Act that ownership vests upon the payment of the first installment. Hence,the conjugal partnership would only be entitled to reimbursement for the installments paid by theconjugal partnership during liquidation. (Lorenzo v. Nicolas, 91 P 686).

Baviera: As distinguished from the Jovellanos case, which involved a PACTUM RESERVATIDOMINI, or contractual reservation of title, where there is a stipulation that even if property isdelivered to the buyer, ownership remains with the seller until full payment of the price is made.

b. Improvements at expense of conjugal funds or through work or industry of a spouse

Art. 120. The ownership of improvements, whether for utility or adornment, madeon the separate property of the spouses at the expense of the partnership or through theacts or efforts of either or both spouses shall pertain to the conjugal partnership, or to theoriginal owner- spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and anyresulting increase in value are more than the value of the property at the time of theimprovement, the entire property of one of the spouses shall belong to the conjugalpartnership, subject to reimbursement of the value of the property of the owner-spouse atthe time of the improvement; otherwise, said property shall be retained in ownership bythe owner-spouse, likewise subject to reimbursement of the cost of the improvement.

In either case, the ownership of the entire property shall be vested upon thereimbursement, which shall be made at the time of the liquidation of the conjugal

partnership.

Baviera Cases

HISTORICAL BACKGROUND

VITUG V. MONTEMAYOR [93 P 939 (1953)] - Where during the second marriage, the second wifeinherited land valued at P9,000 which was converted into a fishpond and sold at profit (P116,000), the

proceeds of which were used to buy 30 parcels of land, the latter lands belong to the conjugal partnership,

37





and the heir of the husband by his first marriage shall be entitled to one-half of such lands. Since thevalue of the improvements on the paraphernal property of the wife exceeded its original value, the entire

property became conjugal property subject to reimbursement of the value of the paraphernal property atthe time of liquidation of the conjugal partnership.

MARAMBA V. LOZANO [20 S 474 (1967)] - Since there is no showing that the property was acquiredduring the marriage, the fact that the title is in the wife's name determines that it is paraphernal property.The construction of a house built from conjugal funds on the exclusive property of one of the spousesdoes not automatcally make it conjugal. It is true that in the meantime, the conjugal partnership may use

both the land and the building, but it does not so as owner but in the snse of the right of usufruct.

The land belonging to one of the spouses upon which the spouses have built a house becomes conjugal property only when the conjugal partnership is LIQUIDATED and the INDEMNITY PAID to the owner of the land.

However, see CANULLAS V. FORTUN

CALTEX V. FELIAS [108 P 873 (1960)] - Where the husband and wife constructed a building on land

belonging to her parents, and the land was later donated to the wife, the building and the lot are notconjugal property. Article 1404 par. 2 of the OCC (Art. 158 CC, now Art. 120 FC) refers to a buildingconstructed on LAND BELONGING TO ONE OF THE SPOUSES, however at the time the building wasconstructed, the lot belonged to the parents of the wife. The rule applicable with respect to the buildingconstructed thereon before the donation is that of accessory following the principal. The donationtransmitted to her the rights of a landowner over a building constructed on it. As such, the lot and the

building are not answerable for the obligations of the husband.

DOMINADO V. DERAYUNAN [49 S 452 (1926)] - To the owner of realty also belongs, by right of accession, the improvements made thereon. Buildings, crops and other improvements upon the land

belong to the owner of the realty. To this rule there is an exception in case of married persons. Par. 2 of Art. 1404 CC (now Art. 120, FC) provides that buildings constructed during the marriage, on land

belonging to one of the spouses, are conjugal property, but the owner of the realty shall be entitled to

credit for the value of the land. This exception, however, is limited to buildings and does not apply tocrops and other improvements, with respect to which the general rule applies. Expenses incurred inmaking such crops and improvements are conjuga expenses, for which the conjugal property must bereimbursed. [Tabotabo v. Molero, 22 P 418]

NOTE: ART. 120 only refers to "BUILDINGS" not crops

CANULLAS V. FORTUN [129 S 675 (1984)] - The Canullas family lived in a house owned by the husband's father. When the latter died, the husband inherited the land, but later abandoned his family to livewith a concubine to whom he sold the land. Upon the husband's death, the concubine filed an action toquiet title, which the wife opposed on the ground that the house and coconut trees planted on the landcame from conjugal funds and therefore became conjugal property. The SC annulled the sale to theconcubine, considering that the construction of the house on the exclusive property of the husband IPSO

FACTO made the land conjugal property, with the conjugal partnership liable to the husband for thevalue of the land, to be reimbursed at liquidation of the CPG.

The better rule than Maramba v. Lozano, is Padilla v. Paterno, which held that the conversion of the paraphernal properties to conjugal assets should be deemed to retroact to the time the conjugal

buildings were first constructed thereon or at the very least, to the time immediately before the death of the owner spouse that ended the conjugal partnership. They can not be considered to have becomeconjugal property only as of the time their values were paid to the estate of the deceased spouse because

by that time the conjugal partnership no longer existed and it could not acquire the ownership of said properties. The acquisition by the partnership of these properties was subject to the suspensive condition

38





that their values would be reimbursed to the owner spouse at the liquidation of the conjugal partnership;once paid, the effects of the fulfillment of the condition should be deemed to retroact to the date theobigation was constituted. [Art. 1187, NCC].

Baviera: This cannot be applied because there is no conjugal partnership of the first marriagewhich has been dissolved, nor has there been a reimbursement yet. But the SC made asomersault to do justice and remove the land from the hands of the concubine. The cited decisionin Padilla was taken out of context since it was not even the ratio but a mere statement of JBLReyes.

3. Obligations and Charges of Conjugal Partnership

Art. 121. The conjugal partnership shall be liable for:(1) The support of the spouses, their common children, and the legitimate children

of either spouse; however, the support of illegitimate children shall be governed by theprovisions of this Code on Support;

(2) All debts and obligations contracted during the marriage by the designatedadministrator- spouse for the benefit of the conjugal partnership of gains, or by bothspouses or by one of them with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of theother to the extent that the family may have been benefited;

(4) All taxes, liens, charges and expenses, including major or minor repairs uponthe conjugal partnership property;

(5) All taxes and expenses for mere preservation made during the marriage uponthe separate property of either spouse;

(6) Expenses to enable either spouse to commence or complete a professional,vocational, or other activity for self-improvement;

(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit

of the family;(8) The value of what is donated or promised by both spouses in favor of theircommon legitimate children for the exclusive purpose of commencing or completing aprofessional or vocational course or other activity for self-improvement; and


If the conjugal partnership is insufficient to cover the foregoing liabilities, thespouses shall be solidarily liable for the unpaid balance with their separate properties.

Art. 123. Whatever may be lost during the marriage in any game of chance, or inbetting, sweepstakes, or any other kind of gambling whether permitted or prohibited bylaw, shall be borne by the loser and shall not be charged to the conjugal partnership but

any winnings therefrom shall form part of the conjugal partnership property.

a. Contractual Obligations assumed by either spouse

Art. 122. The payment of personal debts contracted by the husband or the wifebefore or during the marriage shall not be charged to the conjugal partnership exceptinsofar as they redounded to the benefit of the family.

39





Neither shall the fines and pecuniary indemnities imposed upon them be chargedto the partnership.

However, the payment of personal debts contracted by either spouse before themarriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after

the responsibilities enumerated in the preceding Article have been covered, if the exclusiveproperty or if it should have no exclusive property or if it should be insufficient; but at thetime of the liquidation of the partnership, such spouse shall be charged for what has beenpaid for the purposes above-mentioned.

Baviera Cases:

CUATICO V. MORALES [61 O.G. 869 (1964)] - Where the husband contracted a loan, signing the promissory note alone, and where no benefit to the family was shown, in a collection suit later filedagainst the husband, where the creditor won and sought to attach the husband's salaries, the SC held thatthe salaries of the spouses constitute part of the conjugal partnership which may answer only for chargesupon and liabilities of the conjugal partnership. In order to make the conjugal partnership liable for the

personal obligations of the spouses, it must be shown that the debt was contracted during the marriage bythe husband for the benefit of the conjugal partnership. Under the New Civil Code, there is NOPRESUMPTION that debts and obligations contracted during the marriage by the husband are conjugal.(De la Cruz v. De Gula). As long as the conjugal partnership subsists, there can be no one-half share of the husband or wife. Only when the conjugal partnership is liquidated, and there is a net remainder, maythe same be divided equally between husband and wife. The interest of each in the conjugal partnership

property is inchoate and is a mere expectancy. Any levy on the conjugal partnership property to satisfythe money judgment against the husband is null and void. (Ansaldo v. Sheriff of Manila)

LUZON SURETY V. AQUINO [30 S 111 (1969)] - The conjugal partnership is not liable on anindemnity agreement executed by the husband to accomodate a third party in favor of a surety companyin the absence of proof of any benefit to the conjugal partnership.

PEREZ V. LANTIN [23 S 367 (1968)] - Where the husband purchased shoe leather in connection withhis business, and for failure to pay the same, a collection suit was filed against him, and judgment washeld for the creditor, the shares of stocks owned by the husband can be attached for the satisfaction of the

judgment debt. All properties of the marriage are presumed to belong to the conjugal partnership unless itis proved otherwise. The party who invokes this presumption must first prove that the property wasacquired during the marriage. Hence, proof of acquisition during the coverture is a condition sine qua nonfor the operation of the presumption. Since in this case, there is no evidence as to when the shares of stocks were acquired, the fact that they are registered in the name of the husband alone is an indicationthat the shares belong exclusively to him.

B. Charges upon conjugal partnership

Art. 122, par. 3. However, the payment of personal debts contracted by eitherspouse before the marriage, that of fines and indemnities imposed upon them, as well as thesupport of illegitimate children of either spouse, may be enforced against the partnershipassets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should insufficient; butat the time of the liquidation of the partnership, such spouse shall be charged for what hasbeen paid for the purposes above-mentioned.

Baviera Cases:

40





ALVAREZ V. LIM [61 O.G. 1529 (1964)] - The illegitimate children of the husband should be supported from his exclusive property. In the absence of exclusive property of the husband or in case of itsinsufficiency, the support of said illegitimate children may be imposed against the partnership assets after the responsibilities enumerated in Art. 161 CC (Art. 121 FC) have been covered, provided that at the timeof the liquidation of the partnership the husband shall be charged for what has been paid for the purpose.

PEOPLE V. LAGRIMAS [29 S 153 (1969)] - Fines and indemnities imposed upon either husband or wife may be enforced against partnership assets after the responsibilities imposed in Art. 161 CC (Art.121 FC) have been covered, if the spouse who is bound should have no exclusive property or if it should

be insufficient. The reason is that if they were allowed to be enforced only after liquidation, the effectwould be to exempt the accused from civil liability and the heirs of the offended party would be made tosuffer still further.

4. Administration of Conjugal Partnership

Art. 124. The administration and enjoyment of the conjugal partnership property

shall belong to both spouses jointly. In case of disagreement, the husband's decision shallprevail, subject to recourse to the court by the wife for proper remedy, which must beavailed within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate inthe administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrancewhich must have the authority of the court or the written consent of the other spouse. Inthe absence of such authority or consent, the disposition shall be void. However, thetransaction shall be construed as a continuing offer on the part of the consenting spouseand the third person, and may be perfected as a binding contract upon the acceptance bythe other spouse or authorization by the court before the offer is withdrawn by either orboth offerors.

Art. 125. Neither spouse may donate any conjugal partnership property without theconsent of the other. However, either spouse may, without the consent of the other, makemoderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress.

5. Dissolution

Art. 126. The conjugal partnership terminates:(1) Upon the death of either spouse;(2) When there is a decree of legal separation;

(3) When the marriage is annulled or decreed void;(4) In case of judicial separation of property during the marriage under Articles

134 to 138.

Art. 134. In the absence of an express declaration in the marriage settlements, theseparation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or forsufficient cause.

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(3) That loss of parental authority of the spouse of petitioner has beendecreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed tocomply with his or her obligations to the family as provided for in Article 101;



In the cases provided for in Numbers (1), (2), (3), the presentation of thefinal judgment against the guilty or absent spouse shall be enough basis for thegrant of the decree of judicial separation of property.



Art. 137. Once the separation of property has been decreed, the absolutecommunity or the conjugal partnerhsip of gains shall be liquidated in conformitywith this Code.

During the pendency of the proceedings for separation of property, theabsolute community or the conjugal partnership shall pay for the support of the

spouses and their children.


Art. 127. The separation in fact between husband and wife shall not affect theregime of conjugal partnership, except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without justcause, shall not have the right to be supported;

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

(3) In the absence of sufficient conjugal partnership property, the separate property

of both spouses shall be solidarily liable for the support of the family. The spouse presentshall, upon petition in a summary proceeding, be given judicial authority to administer orencumber any specific separate property of the other spouse and use the fruits or proceedsthereof to satisfy the latter's share.

Art. 128. If a spouse without just cause abandons the other or fails to comply withhis or her obligations to the family, the aggrieved spouse may petition the court forreceivership, for judicial separation of property, or for authority to be the sole

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administrator of the conjugal partnership property, subject to such precautionaryconditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer tomarital parental or property relations.

A spouse is deemed to have abandoned the other when he or she has left the

conjugal dwelling without intention of returning. The spouse who has left the conjugaldwelling for a period of 3 months or has failed within the same period to give anyinformation as to his or her whereabouts shall be prima facie presumed to have nointention of returning to the conjugal dwelling.

6. Liquidation of the Conjugal Partnership Assets and Liabilities

Art. 129. Upon the dissolution of the conjugal partnership regime, the followingprocedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of theconjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts

and obligations of either spouse shall be credited to the conjugal partnership as an assetthereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in theacquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out of theconjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liablefor the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

Art. 121. xxxIf the conjugal partnership is insufficient to cover the foregoing liabilities,

the spouses shall be solidarily liable for the unpaid balance with their separateproperties.)

(5) Whatever remains of the exclusive properties of the spouses shall thereafter bedelivered to each of them.

(6) Unless the owner had been indemnified from whatever source, the loss ordeterioration of movables used for the benefit of the family, belonging to either spouse,even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

( e.g. car, even if lost due to FE, unlike in ordinary usufruct)

(7) The net remainder of the conjugal partnership properties shall constitute theprofits, which shall be divided equally between husband and wife, unless a different

proportion or division was agreed upon in the marriage settlements or unless there hasbeen a voluntary waiver or forfeiture of such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered uponpartition in accordance with Article 51.


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The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in noway prejudice the ultimate successional rights of the children accruing upon thedeath of either or both of the parents; but the value of the properties alreadyreceived under the decree of annulment or absolute nullity shall be considered as

advances on their legitime.

Baviera: Presumptive only; collationable, considered as donations because of collation- actual computation at the time of death of the parent; legitime at the time of death can even beless than the presumptive legitimes.)

(9) In the partition of the properties, the conjugal dwelling and the lot on which it issituated shall, unless otherwise agreed upon by the parties, be adjudicated to the spousewith whom the majority of the common children choose to remain. Children below the ageof seven years are deemed to have chosen the mother, unless the court has decidedotherwise. In case there is no such majority, the court shall decide, taking intoconsideration the best interests of said children.

Art. 130. Upon the termination of the marriage by death, the conjugal partnershipproperty shall be liquidated in the same proceeding for the settlement of the estate of thedeceased.

If no judicial settlement proceeding is instituted, the surviving spouse shallliquidate the conjugal partnership property either judicially or extra-judicially within oneyear from the death of the deceased spouse. If upon the lapse of the said period noliquidation is made, any disposition or encumbrance involving the conjugal partnershipproperty of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliancewith the foregoing requirements, a mandatory regime of complete separation of propertyshall govern the property relations of the subsequent marriage.

Art. 131. Whenever the liquidation of the conjugal partnership properties of two ormore marriages contracted by the same person before the effectivity of this Code is carriedout simultaneously, the respective capital, fruits and income of each partnership shall bedetermined upon such proof as may be considered according to the rules of evidence. Incase of doubt as to which partnership the existing properties belong, the same shall bedivided between and among the different partnerships in proportion to the capital andduration of each.

Art. 132. The Rules of Court on the administration of estates of deceased personsshall be observed in the appraisal and sale of property of the conjugal partnership, and

other matters which are not expressly determined in this Chapter.

Art. 133. From the common mass of property support shall be given to thesurviving spouse and to the children during the liquidation of the inventoried property anduntil what belongs to them is delivered; but from this shall be deducted that amountreceived for support which exceeds the fruits or rents pertaining to them.

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E. Separation of Property

1. During Marriage

Art. 134. In the absence of an express declaration in the marriage settlements, the

separation of property between the spouses during the marriage shall NOT take placeexcept by judicial order. Such judicial separation of property may either be voluntary orfor sufficient cause.

Toda v. Court of Appeals

The separation of property is not affected by the mere execution of the contract or agreement of the parties but by the decreee of the court approving the same. The conjugal partnership is dissolved only upon the issuance of a decree of separation of property.

Balane: A petition may be filed for the dissolution of the AC or the CP by: both spouses: voluntary dissolution (134/136) petition for sufficient cause (135)

cannot dissolve extrajudicially during subsistence of marriage

Art. 135. Any of the following shall be considered sufficient cause for judicialseparation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carrieswith it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;(3) That loss of parental authority of the spouse of petitioner has been declared by

the court;(4) That the spouse of the petitioner has abandoned the latter or failed to comply

with his or her obligations to the family as provided for in Article 101;

Art. 101. If a spouse without just cause abandons the other or fails tocomply with his or her obligations to the family, the aggrieved spouse may petitionthe court for receivership, for judicial separation of property or for authority to bethe sole administrator of the absolute community, subject to such precautionaryconditions as the court may impose.


A spouse is deemed to have abandoned the other when he or she has leftthe conjugal dwelling without intention of returning. The spouse who has left theconjugal dwelling for a period of three months or has failed within the same periodto give any information as to his or her whereabouts shall be prima facie presumedto have no intention of returning to the conjugal dwelling.

(5) That the spouse granted the power of administration in the marriage settlementshas abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact for atleast one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of thedecree of judicial separation of property.

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Balane: Under Art. 135.4, Balane believes that Art. 128 should be included here.

Art. 136. The spouses may jointly file a verified petition with the court for thevoluntary dissolution of the absolute community or the conjugal partnership of gains, and

for the separation of their common properties.All creditors of the absolute community or of the conjugal partnership of gains, as

well as the personal creditors of the spouse, shall be listed in the petition notified of thefiling thereof. The court shall take measures to protect the creditors and other persons withpecuniary interest.

Art. 137. Once the separation of property has been decreed, the absolutecommunity or the conjugal partnership of gains shall be liquidated in conformity with thisCode.

During the pendency of the proceedings for separation of property, the absolutecommunity or the conjugal partnership shall pay for the support of the spouses and theirchildren.


Art. 139. The petition for separation of property and the final judgment grantingthe same shall be recorded in the proper local civil registries and registries of property.

Art. 140. The separation of property shall not prejudice the rights previously

acquired by creditors.

Art. 141. The spouses may, in the same proceedings where separation of propertywas decreed, file a motion in court for a decree reviving the property regime that existedbetween them before the separation of property in any of the following instances:

(1) When the civil interdiction terminates;(2) When the absentee spouse reappears;(3) When the court, being satisfied that the spouse granted the power of

administration in the marriage settlements will not again abuse that power, authorizes theresumption of said administration;

(4) When the spouse who has left the conjugal home without a decree of legalseparation resumes common life with the other;

(5) When the parental authority is judicially restored to the spouse previouslydeprived thereof;

(6) When the spouses who have separated in fact for at least one year, reconcile andresume common life; or

(7) When after voluntary dissolution of the absolute community of property orconjugal partnership has been judicially decreed upon the joint petition of the spouses,they agreed to the revival of the former property regime. No voluntary separation of property may thereafter be granted.

The revival of the former property regime shall be governed by Article 67.

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

(1) The properties to be contributed anew to the restored regime;(2) Those to be retained as separated properties of each spouse; and(3) The names of all their known creditors, their addresses and the

amounts owing to each.

The agreement of revival and the motion for its approval shall be filedwith the court in the same proceeding for legal separation, with copies of bothfurnished to the creditors named therein. After due hearing, the court shall, in itsorder, take measures to protect the interest of creditors and such order shall berecorded in the proper registries of properties.

The recording of the order in the registries of property shall not prejudiceany creditor not listed or not notified, unless the debtor-spouse has sufficientseparate properties to satisfy the creditor's claim.

Art. 142. The administration of all classes of exclusive property of either spousemay be transferred by the court to the other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;(3) When one spouse is sentenced to a penalty which carries with it civil

interdiction; or(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in

a criminal case.If the other spouse is not qualified by reason of incompetence, conflict of interest, or

any other just cause, the court shall appoint a suitable person to be the administrator.

3. Regime of Separation of Property

Art. 143. Should the future spouses agree in the marriage settlements that theirproperty relations during the marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be of suppletory application.

Art. 144. Separation of property may refer to present or future property or both. Itmay be total or partial. In the latter case, the property not agreed upon as separate shallpertain to the absolute community.

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his orher own separate estate, without need of the consent of the other. To each spouse shallbelong all earnings from his or her profession, business or industry and all fruits, natural,industrial or civil, due or received during the marriage from his or her separate property.

Art. 146. Both spouses shall bear the family expenses in proportion to theirincome, or, in case of insufficiency or default thereof, to the current market value of theirseparate properties.

The liability of the spouses of creditors for family expenses shall, however, besolidary.

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VII. Union without marriage

Art. 147. When a man and a woman who are capacitated to marry each other, liveexclusively with each other as husband and wife without the benefit of marriage or under a

void marriage, their wages and salaries shall be owned by them in equal shares and theproperty acquired by both of them through their work or industry shall be governed by therules on co-ownership.

[no provision in OCC, judicial decisions only; only in NCC; Baviera says the use of thewords "capacitated" and "void marriage" is malabo; jigsaw puzzle provision]

In the absence of proof to the contrary, properties acquired while they livedtogether shall be presumed to have been obtained by their joint effortsm work or industry,and shall be owned by them in equal shares. For purposes of this Article, a party who didnot participate in the acquisition by the other party of any property shall be deemed tohave contributed jointly in the acquisition thereof if the former's efforts consisted in thecare and maintenance of the family and of the household.

[basis: MAXEY V. CA - H & W, equality of the sexes]

Neither party can encumber or dispose by acts inter vivoc of his or her share in theproperty acquired during cohabitation and owned in common, without the consent of theother, until after the termination of their cohabitation.

[Baviera - so that it won't be better than legal relationships]

When only one of the parties to a void marriage is in good faith, the share of theparty in bad faith in the co-ownership shall be forfeited in favor of their common children.In case of default of or waiver by any or all of the common children or their descendants,each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall

take place upon termination of the cohabitation. [Baviera - there is a right of representationeven by the grandchildren]

Maxey v. CA

The marriage law of 1903 does not recognize the validity of a marriage that iscelebrated in "military fashion". In this case, the couple got married only on Feb. 16, 1919after living as common-law spouses before that. Under Art. 144 of the NCC, co-ownership arises even if the common-law wife is not gainfully employed, or does notwork.

Notes: as in the case of Maxey, a common-law wife who is not gainfully employedcontributes to the co-ownership as a homemaker.

the law in this case provides for a special kind of co- ownership...which cannot beterminated, and wherein the share may not be encumbered or disposed of without theconsent of the other.

Art. 148. In cases of cohabitation not falling under the preceding Article, only theproperties acquired by both of the parties through their actual joint contribution of money,property, or industry shall be owned by them in common in proportion to their respective

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contributions. In the absence of proof to the contrary, their contributions andcorresponding shares are presumed to be equal. The same rule and presumption shallapply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such

valid marriage. If the party who acted in bad faith is not validly married to another, his orher share shall be forfeited in the manner provided in the last paragraph of the precedingArticle.

The foregoing rules on forfeiture shall likewise apply even if both parties are in badfaith.

Baviera: If no common children, no surviving descendant, kanino ngayon? apply exclusive property

Baviera Cases:

YAPTINCHAY V. TORRES [28 S 489 (1969)] - Where a married man and his mistress lived together for 19 years, and the mistress seeks to repossess their love nest in Forbes Park, she must show her actual

contribution in the construction of the house during the cohabitation inorder for the rules on co-ownershipto apply. Her unsupported assertions cannot override the prima facie presumption that the house, having

been constructed on the lot of the man during his marriage to his legitimate wife constitutes conjugal property.

JUANIZA V. JOSE [89 S 306 (1979)] - A married man is the registered owner of a jeepney which wasinvolved in an accident and was held liable for damages. His common-law wife cannot claim co-ownership over the jeepney because Art. 144 CC (Art. 147 FC) applies only when the parties are notincapacitated to marry. Hence, the jeepney belongs to the conjugal partnership with the lawful wife. Thecommon-law wife not being the registered owner cannot be held liable for damages caused by itsoperation.

Baviera disagrees, there is no need that there bee no impediment because Art. 147 FCcovers even void marriages.

MAXEY V. CA [129 S 187 (1984)] - Under Art. 144 CC (Art. 147 FC), co-ownership ariseseven if a common-law wife does not work or is not gainfully employed. The Filipino womantraditionally runs the household and holds the family purse even if she does not contributethereto.

xxxThe marriage law of 1903 does not recognize the validity of a marriage that is

celebrated in "military fashion". In this case, the couple got married only on Feb. 16, 1919after living as common-law spouses before that. Under Art. 144 of the NCC, co-ownership arises even if the common-law wife is not gainfully employed, or does not

work.

Balane: As in the case of Maxey, a common-law wife who is not gainfully employedcontributes to the co-ownership as a homemaker.

the law in this case provides for a special kind of co- ownership...which cannot beterminated, and wherein the share may not be encumbered or disposed of without theconsent of the other.

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VII. The Family

A. As an Institution

Art. 149. The family, being the foundation of the nation, is a basic social institutionwhich public policy cherishes and protects. Consequently, family relations are governed bylaw and no custom, practice or agreement destructive of the family shall be recognized orgiven effect.

Alavado v. City Gov't

Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reasonis that such is the common order of society, and if the parties were not what they thus holdthemselves out as being, they would be living in the constant violation of decency and of law.

Art. 150. Family relations include those:(1) Between husband and wife;(2) Between parents and children;(3) Among other ascendants and descendants; and(4) Among brothers and sisters, whether of the full or half-blood.

Balane: The enumeration under 150 of who is a member of a family is exclusive for the purpose stated in Art. 151

Art. 151. No suit between members of the same family shall prosper unless it shouldappear from the verified complaint or petition that earnest efforts toward a compromisehave been made, but that the same have failed. If it is shown that no such efforts were infact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromiseunder the Civil Code.

Balane: If on either side of the litigation, a third party is present in addition to the familymember, then Art. 151 does not apply.

Family Home

Notes: The main change from the provisions of the NCC is that under the FC, there is defacto or automatic constitution of the family home

The rationale behind this is to protect the family from the tragic consequence of losing the dwelling to creditors.

Gayon v. Gayon

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Art. 222 of the CC (Art. 151 NCC) is an exception to the general rule and shouldthus be construed strictly. Inasmuch as a sister-in-law, nephew, niece is not included inthe enumeration contained in Art. 217, then it follows that this case does not fall withinArt. 222...failure to seek a compromise before the filing of the complaint does not bar theaction.

Wainright v. Versoza

Compromise on future support is proscribed. An attempt to compromise futuresupport is not a condition precedent to the filing of a suit therefor and it need not bealleged in the complaint. A showing of previous efforts to compromise future supportwould be superfluous.

Magbaleta v. Gonong

Where one of the parties to a civil litigation is not a member of the family some of

whose members are adverse parties to the said suit, lack of earnest efforts to reach acompromise should not be considered a jurisdictional requisite to the maintenance of anaction.

De Guzman v. Genato

Substantial compliance of the requirement of earnest efforts towards a compromiseis enough. It is not necessary that the plaintiff should expressly use the terms of thestatute, i.e. "that earnest efforts towards a compromise have been made, but that the samehave failed" in his pleadings in order to comply with the requirement.

O'Lao v. Co Cho Chit

Earnest efforts towards a compromise is a condition precedent to filing of suits between members of the same family, non- compliance of which, the complaint isassailable at any stage of the proceedings for lack of cause of action.

Art. 2035. No compromise upon the following questions shall be valid:(1) The civil status of persons;(2) The validity of marriage or a legal separation;(3) Any ground for legal separation;(4) Future support;

(5) The jurisdiction of courts;(6) Future legitime. (Civil Code.)

( also refer to rules on pre-trial, Katarungang Pambarangay Law)

Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parentsand grandparents, except when such testimony is indispensable in a crime against the descendant orby one parent against the other.

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The Family Home

Art. 152. The family home, constituted jointly by the husband and the wife or byan unmarried head of a family, is the dwelling house where they and their family reside,

and the land on which it is situated.Balane: An unmarried head of a family may constitute a family home

Art. 153. The family home is deemed constituted on a house and lot from the time itis occupied as a family residence. From the time of its constitution and so long as any of itsbeneficiaries actually resides therein, the family home continues to be such and is exemptfrom execution, forced sale or attachment except as hereinafter provided and to the extentof the value allowed by law.

MANACOP V. CA [215 SCRA 773] - reiterating Modequillo v. Breva, "xxx It does not meanthat Articles 152 and 153 FC have a retroactive effect such that all existing family residences aredeemed to have been consitituted as family homes at the time of their occupation prior to theeffectivity of the FC and are exempt from execution for the payment of obligations incurred

before the effectivity of the FC. Art. 162 simply means that all existing family residences at thetime of the effectivity of the FC, are considered family homes and are prospectively entitled tothe benefits accorded to a family home under the FC. Art. 162 does not state that the provisionsof Chapter 2, Title V have a retroactive effect.

Art. 154. The beneficiaries of a family home are:(1) The husband and wife, or an unmarried person who is the head of a family; and(2) Their parents, ascendants, descendants, brothers and sisters, whether the

relationship be legitimate or illegitimate, who are living in the family home and whodepend upon the head of the family for legal support.

Art. 155. The family home shall be exempt from execution, forced sale orattachment except:

(1) For nonpayment of taxes;(2) For debts incurred prior to the constitution of the family home;(3) For debts secured by by mortgages on the premises before or after such

constitution;(4) For debts due to laborers, mechanics, architects, builders, materialmen and

others who have rendered service or furnished material for the construction of thebuilding.

Art. 156. The family home must be part of the properties of the absolutecommunity or the conjugal partnership, or of the exclusive properties of either spouse withthe latter's consent. It may also be constituted by an unmarried head of a family on his orher own property.

Nevertheless, property that is the subject of a conditional sale on installments whereownership is reserved by the vendor only to guarantee payment of the purchase price maybe constituted as a family home.

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Art. 157. The actual value of the family home shall not exceed, at the time of itsconstitution, the amount of three hundred thousand (P300,000) in urban areas and twohundred thousand (P200,000) in rural areas, or such amounts as may hereafter be fixed bylaw.

In any event, if the value of the currency changes after the adoption of this Code,

the value most favorable for the constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include chartered cities andmunicipalities whose annual income at least equals that legally required for charteredcities. All others are deemed to be rural areas.

Balane: Under the NCC, there was no provision for adjustment of the value of the familyhome. The ceiling was pegged at P30,000. Under the FC, this ceiling was increased. TheFC further provided for a flexibility clause under Art. 157.2 "value most favorable for theconstitution of a family home shall be the basis..."

Art. 158. The family home may be sold, alienated, donated, assigned orencumbered by the owner or owners thereof with the written consent of the personconstituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. Incase of conflict, the court shall decide.

Balane: Although this article states that the consent of the head and a majority of the beneficiaries is required before alienation/encumbrance of the family home, the law is notclear as to the consequences of not obtaining such consent. Under 1403, it would seem asif the contract shall be unenforceable.

Art. 159. The family home shall continue despite the death of one or both spouses

or of the unmarried head of the family for a period of ten years or for as long as there is aminor beneficiary, and the heirs cannot partition the same unless the court findscompelling reasons therefor. This rule shall apply regardless of whoever owns the propertyor constituted the family home.

Art. 160. When a creditor whose claim is not among those mentioned in Article 155obtains a judgment in his favor, and he has reasonable grounds to believe that the familyhome is actually worth more than the maximum amount fixed in Article 157, he may applyto the court which rendered the judgment for an order directing the sale of the propertyunder execution. The court shall so order if it finds that the actual value of the family homeexceeds the maximum amount allowed by law as of the time of its constitution. If theincreased actual value exceeds the maximum allowed in Article 157 and results fromsubsequent voluntary improvements introduced by the person or persons constituting thefamily home, by the owner or owners of the property, or by any of the beneficiaries, thesame rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall beconsidered. The proceeds shall be applied first to the amount mentioned in Article 157, andthen to the liabilities under the judgment and the costs. The excess, if any, shall bedelivered to the judgment debtor.

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Balane: Art. 160 provides the remedy of the creditor where the value of the family homeis in excess of the ceiling

The family home will be sold (but replacement should exist)The value for such replacement should be set aside

Any excess shall accrue to the creditor.

Paternity and Filiation

paternity: includes maternitymeans the relationship or status of a person with respect to his or her child filiationmeans the status of a person with respect to his or her parents

Note that under the Family Code, there are no more subdistinctions under the classificationof illegitimate children.

Art. 161. For purposes of availing of the benefits of a family home as provided for

in this Chapter, a person may constitute, or be the beneficiary of, only one family home.

Art. 162. The provisions in this Chapter shall also govern existing familyresidences insofar as said provisions are applicable.

Baviera/ Balane Case:

MODEQUILLO V. BREVA [185 S 766 (1990)] - Under the Family Code, a family home isdeemed constituted on a house and lot from the time it is occupied as a family residence. There is NO NEED to constitute the same judicially or extrajudicially as required in the Civil Code. If thefamily actually resides in the premises, it is, therefore, a family home as contemplated by law.

Thus, the creditors should take the necessary precautions to protect their interest before extendingcredit to the spouses or head of the family who owns the home.

Art. 162 FC simply means that all existing family residences at the time of the effectivity of theFamily Code (AUGUST 3, 1988), are considered family homes and are prospectively entitled tothe benefits accorded to a family home under the Family Code. Art. 162 FC does not state thatthe provisions of Chapter 2, Title V have a retroactive effect.

IX. Paternity and Filiation

1. Legitimate Children

Art. 163. The filiation of children may be by nature or by adoption. Naturalfiliation may be legitimate or illegitimate.

Art. 164. Children conceived or born during the marriage of the parents arelegitimate.

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Children conceived as a result of artificial insemination of the wife with the spermof the husband or that of a donor or both are likewise legitimate children of the husbandand his wife, provided, that both of them authorized or ratified such insemination in awritten instrument executed and signed by them before the birth of the child. Theinstrument shall be recorded in the civil registry together with the birth certificate of the

child.

Balane: Legitimate: conceived or born during the marriagethe presumption is always in favor of legitimacy

Artificial insemination:3 ways permissible:1. artificial insemination husband (AIH)--using the sperm of the husband--homologous

2. artificial insemination donor (AID) -- heterologous

3. artificial insemination combined (AIC)

Requirements:authorization/ratification of both spouseswritten instrumentthe document should be executed and signed before the child's birth

registration in the Civil Registry is not a requirement for validity.

Presumption of Legitimacythe presumption of legitimacy is an example of a quasi-conclusive presumption. This presumption may be rebutted only on the grounds provided in Art. 166.

To impugn legitimacy, show that during the 1st 120 days of the 300 days preceding the

birth, there was physical impossibility of access between husband and wife.

Physical impossibility of access may be shown by preponderance of evidence:may show impotencethat the spouses were living separately and sexual intercourse was not possibleor serious illness making sexual intercourse impossible.Art. 166.1 has no application when the conception is by artificial insemination.

Suppose the consent or ratification was obtained through the means mentioned in 166.3 but the semen used was that of the husband...will this rebut the quasi-conclusive presumption?

Art. 165. Children conceived and born outside a valid marriage are illegitimate,unless otherwise provided in this Code.

Art. 166. Legitimacy of a child may be impugned only on the following grounds:(1) That it was physically impossible for the husband to have sexual intercourse

with his wife within the first 120 days of the 300 days which immediately preceded thebirth of the child because of:

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(a) the physical incapacity of the husband to have sexual intercourse withhis wife;

(b) the fact that the husband and wife were living separately in such a waythat sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual

intercourse;(2) That it is proved that for biological or other scientific reasons, the child could

not have been that of the husband, except in the instance provided in the second paragraphof Article 164 (artificial insemination); or

(3) That in case of children conceived through artificial insemination, the writtenauthorization or ratification of either parent was obtained through mistake, fraud,violence, intimidation, or undue influence.

ANDAL V. MACARAIG [100 SCRA 73]

F: The H died on 1/1/43. The boy whose legitimacy is in question was born on 6/17/43. If the boy is deemed legitimate, then he is entitled to inherit the land in question. Lower court

declared the boy as the legitimate child of the H and owner of the land.

HELD: The boy is presumed to be the legitimate son of said H and his W, he having been bornw/in 300 days following the dissolution of the marriage. The presumption can only be rebutted by proof that it was physically impossible for the H to have access to her W during the first 120days of the 300 days next preceding the birth of the child. The fact that the wife has committedadultery cannot overcome this presumption. Although the H was suffering from serioustuberculosis, yet there is no evidence of impotence nor does it preven carnal intercourse. Andthere are cases when the tuberculous is reputed to be more erotic. RR.

MACADANGDANG V. CA [100 SCRA 73] - The child Rolando is presumed to be the

legitimate son of resp. and her spouse. This presumption becomes conclusive in the absence of proof that there was physical impossibility of access between the spouses in the first 120 days of the 300 days w/c preceded the birth of the child.

Art. 167. The children shall be considered legitimate although the mother may havedeclared against its legitimacy or may have been sentenced as an adulteress.

CHUA KENG GIAP V. IAC [158 SCRA 18] - In the case of Sy Kao v. CA, Sy Kao flatly andunequivocably declared that she was not the petitioner's mother.

xxxWho better than Sy Kao herself would know if Chua Keng Giap was really her son? More

than any one else, it was Sy Kao who could say-- as indeed she has said these many years-- thatChua Keng Giap was not begotten of her womb.

Art. 168. If the marriage is terminated and the mother contracted another marriagewithin three hundred days after such termination of the former marriage, these rules shallgovern in the absence of proof to the contrary:

(1) A child born before one hundred eighty days after the solemnization of thesubsequent marriage is considered to have been conceived during the former marriage,provided it be born within three hundred days after the termination of the formermarriage;

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(2) A child born after one hundred eighty days following the celebration of thesubsequent marriage is considered to have been conceived during such marriage, eventhough it be born within the three hundred days after the termination of the formermarriage.

Art. 169. The legitimacy or illegitimacy of a child born after three hundred daysfollowing the termination of the marriage shall be proved by whoever alleges suchlegitimacy or illegitimacy.

Art. 170. The action to impugn the legitimacy of the child shall be brought withinone year from the knowledge of the birth or its recording in the civil register, if thehusband or, in a proper case, any of his heirs, should reside in the city or municipalitywhere the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth asdefined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child hasbeen concealed from or was unknown to the husband or his heirs, the period shall be

counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

LIM V. IAC [166 SCRA 451] - The finding of the trial court and the CA that Violeta Cabatbatwas not born of Esperanza Cabatbat is a factual finding based on the evidence presented at thetrial, and hence, it is conclusive upon Us.

Petitioner's recourse to Art. 263, NCC, now Art. 170, FC is not well-taken. This legal provision refers to an action to impugn letigimacy. It is inapplicable to this case bec. this is notan action to impugn the legitimacy of a child, but an action of the prvt resps. to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's

child at all. Being neither a legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza, Violeta is not a legal heir of the deceased.

Art. 171. The heirs of the husband may impugn the filiation of the child within theperiod prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringinghis action;

(2) If he should die after the filing of the complaint, without having desistedtherefrom; or

(3) If the child was born after the death of the husband.

Balane: Art. 170-171 .Anent who can impugn the legitimacy of a child--the period for such must be reckoned from knowledge of either the birth or the recording of such birth...choice of reckoning point...except when birth is concealed, then the reckoning period is from discovery or knowledge of birth or discovery or knowledge of recording,whichever is earlier.

2. Proof of Filiation

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Art. 172. The filiation of legitimate children is established by any of the following:(1) The record of birth appearing in the civil register or a final judgment; or(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or(2) Any other means allowed by the Rules of Court and special laws.

Balane: With regard to open and continuous possession of the status of a legitimatechild...the possession in this case of such status must not be sporadic or intermittent possession of such status for an appreciable time is sufficient...it need not be for thelifetime of the child.

DIAZ V. CA [129 SCRA 621] - Absence of maternal surname of the decedent in his certificateof admission to the Phil. Bar does not disprove legitimacy, as dropping of maternal surname indocuments is commonplace.

xxx

Although the last will and testament cannot prove pedigree, it is not considered asindependent evidence but collectively w/ other evidence on record to prove decedent'slegitimacy.

Art. 173. The action to claim legitimacy may be brought by the child during his orher lifetime and shall be transmitted to the heirs should the child die during minority or ina state of insanity. In these cases, the heirs shall have a period of five years within which toinstitute the action.

The action already commenced by the child shall survive notwithstanding the deathof either or both of the parties.

Balane: The action in this case is generally intransmissible except when the child diesduring minority, or the child dies in a state of insanity or the child dies pendente lite

MARQUINO V. IAC [233 SCRA 348] - Under Art. 285 (Civil Code), the right of action for the acknowledgment of natural children can never be transmitted: her deathtolled the action. In an action for compulsory recognition, the party in best position tooppose the same is the putative parent himself. (However, Art. 285 was already superseded by Art. 173, FC, Child can now bring the action during his lifetime even after the death of parents. But Art. 173 cannot be given retroactive effect because it will prejudice thevested rights of the heirs of the putatuve parent transmitted to them after the latter's death.

DLC: The action for compulsory recognition commenced by the illegitimate child duringthe lifetime of the putative parent is abated by the death of such parent.

Art. 174. Legitimate children shall have the right:(1) To bear the surnames of the father and the mother, in conformity with the

provisions of the Civil Code on Surnames;(2) To receive support from their parents, their ascendants, and in proper cases,

their brothers and sisters, in conformity with the provisions of this Code on Support;

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(3) To be entitled to the legitime and other successional rights granted to them bythe Civil Code.

3. Illegitimate Children

Art. 175. Illegitimate children may establish their illegitimate filiation in the sameway and on the same evidence as legitimate children.

Baviera: The action must [MAY - typo error corrected by Baviera] be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may [MUST - Baviera] be brought during the lifetime of thealleged parent.

Balane: The FC rules were meant to liberalize the rules of the NCC on illegitimacy...thereis no more need for recognition (which was required under the NCC) proof of illegitimacyis now sufficient.

JAO V. CA [152 SCRA 359] - Blood grouping tests are conclusive as to non-paternity but not as to paternity. The fact that the blood type of the child is a possible product of themother and the alleged father does not inconclusively prove that the child is born by such parents; but if the blood type of the child is not the possible blood type when the blood of the mother and the alleged father are crossmatched, then the child cannot possibly be thatof the alleged father.

The cohabitation between the mother and the supposed father cannot be a groundfor compulsory recognition if such cohabitation could not have produced the conception of the child. This would be the case, for instance, if the cohabitation took place outside of the period of conception of the child. Likewise, if it can be proved by blood tests that the

child and the supposed father belong to different blood groups, the cohabitation by itself cannot be a ground for recognition.

UYGUANGCO V. CA [178 SCRA 684] - Case cites Art. 172 (2nd par.): when theaction is based on second par. of Art.172, the action may be brought during the lifetime of the alleged parent. 2nd par of 172: In the absence of the foregoing evidence, the legitimatefiliation shall be proved by: a)open and continuous possession, 2) other means allowed bythe Rules of Court.

While PR admits that he has none of the documents mentioned in par.1, he insiststhat he has nevertheless been in "open and continuous possession of the status of alegitimate child." The problem of PR is that since he seeks to prove his filiation under par.2, he is now barred because of his alleged father's death in 1975. The putative father'sdeath in 1975, made the Civil Code applicable to him and not the Family Code. Thus, PR cannot prove his illegitimate filiation because of his father's death.

MENDOZA V. CA [201 SCRA 675] - To establish "the open and continuous possession of thestatus of an illegitimate child," it is necessary to comply w/ certain jurisprudential requirements."Continuous" does not mean that the concession of status shall continue forever but only that itshall not be of an intermittent character while it continues. The possession of such status meansthat the father has treated the child as his own, directly and not through others, spontaneously

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and w/o concealment though w/o publicity (since the relation is illegitimate.) There must ashowing of permanent intention of the suppose father to consider the child as his own, bycontinuous and clear manifestation of affection and care.

Art. 173. The action to claim legitimacy may be brought by the child during his orher lifetime and shall be transmitted to the heirs should the child die during minority or ina state of insanity. In these cases, the heirs shall have a period of five years within which toinstitute the action.

The action already commenced by the child shall survive notwithstanding the deathof either or both of the parties.

Art. 172. The filiation of legitimate children is established by any of the following:(1) The record of birth appearing in the civil register or a final judgment; or(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.

( - DURING LIFETIME OF CHILD - )

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:(1) The open and continuous possession of the status of a legitimate child; or(2) Any other means allowed by the Rules of Court and special laws.

[ - DURING LIFETIME OF PARENT (Tayag. v. CA) - ]

Art. 176. Illegitimate children shall use the surname and shall be under theparental authority of their mother, and shall be entitled to support in conformity with thisCode. The legitime of each illegitimate child shall consist of one half of the legitime of alegitimate child.

Balane: Anent the right of an illegitimate child in compulsory and intestatesuccession...the illegitimate child shall be entitled to 1/2 of the share of the legitimatechild.

4. Legitimated Children

Art. 177. Only children conceived and born outside of wedlock of parents who, atthe time of the conception of the former, were not disqualified by any impediment to marryeach other may be legitimated.

Balane: Anent legitimated children...the parents of the child must not be disqualified frommarrying one another at the point of conception.

So if the parents of the child, at the latter's conception, were 16 and 15 years old, the childmay not be legitimated.

Art. 178. Legitimation shall take place by a subsequent valid marriage betweenparents. The annulment of a voidable marriage shall not affect the legitimation.

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Art. 179. Legitimated children shall enjoy the same rights as legitimate children.

Art. 180. The effects of legitimation shall retroact to the time of the child's birth.

Art. 181. The legitimation of children who died before the celebration of themarriage shall benefit their descendants.

Art. 182. Legitimation may be impugned only by those who are prejudiced in theirrights, within five years from the time their cause of action accrues.

Baviera Cases:

TAYAG V. CA [209 S 588 (1992)] - Under Art. 285 of the Civil Code, if the mother or father diedduring minority, an action for recognition of natural based on oral proof may be brought by the child

before the expiration of four years from attainment of majority. However, under Art. 175 of the FamilyCode, if the action is based on oral proof, it must be filed during the lifetime of the parent. The FamilyCode cannot be given retroactive effect because it will impair vested rights. The right of action of thechild has already vested by the filing of the case under the Civil Code, before the enactment of theFamily Code . Such right can no longer be prejudiced or impaired by the enactment of a new law.

BENITEZ V. CA [229 S 468 (1994)] - The claim for inheritance of a child who is not the biological or adopted child of deceased was denied, on the ground that Articles 164, 166, 170, and 171 of the FamilyCode do not contemplate a situation where a child is alleged not to be the child by nature or biologicalchild of a certain couple. Rather, these articles govern a situation where the husband or his heirs denies ashis own a child of his wife.

RULE 99ADOPTION AND CUSTODY OF MINORS

RULE 100RESCISSION AND REVOCATION OF ADOPTION

WHAT IS ADOPTION?

A fiction created by law to give (establish) a relation of people where none previouslyexisted.

A juridical act, proceeding in rem, which creates between two persons a relationshipsimilar to that which results of legitimate paternity and filiation.

Adoption, in modern trends, is deemed not merely an act to establish the relation of paternity and filiation but one which gives the child a legitimate status.

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It is in this sense that adoption is now defined as a "juridical act which creates betweentwo persons a relationship similar to that which results from legitimate paternity and filiation.

Since adoption establishes the relationship of paternity and filiation, it must as a conse-quence involve two perspectives - from that of the adopting parent and from that of the adoptedchild.

As used in the family law the relationship of paternity and filiation is that which exists between parents and their children. This tie or relationship may arise only either from nature,when a child is born, or by legal fictioon, as when a child is legally adopted.

Paternity is the state or condition of being a father, whereas "filiation" is the descent of son or daughter, with regard to his or her father, mother, and their ancestors.

Under family law, "paternity" generally includes "maternity" which is the status of beinga mother.

PURPOSE OF ADOPTION

To provide homes, parental care and education for unfortunate, needy or orphanedchildren and give them the protection of society and family in the person of the adopter, and at

the same time, allow childless couples or persons to experience the joys of parenthood and givethem legally a child in the person of the adopted for the manifestation of their natural parentalinstincts

Promotion of the best interest and welfare of the child

NATURE OF ADOPTION PROCEEDING

Adoption as a juridical act is a proceeding in rem.Proceedings in rem are court actions where the whole world is a party, whether within or

without the territorial jurisdiction of the forum, such that the decree made is binding on all

persons, whether personally notified or merely through constructive notice.

Consequently, no court may entertain a petition for adoption unless it has jurisdiction, not onlyover the subject matter of the case and over the parties, but also, over the res - i.e., the personalstatus of both the person to be adopted and person adopting.

Testamentary and extrajudicial adoptions practiced in some countries are not recognizedin this jurisdiction.

WHO MAY ADOPT

Art. 183. A person of age and in possession of full civil capacity and legal rightsmay adopt, provided he is in a position to support and care for his children, legitimate orillegitimate, in keeping with the means of the family.

Only minors may be adopted, except in the cases where the adoption of a person of majority age is allowed in this Title

In addition, the adopter must be atleast sixteen years older than the person to beadopted, unless the adopter is the parent by nature of the adopted, or is the spouse of thelegitimate parent of the person to be adopted.

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1. a person of age and in possession of full civil capacity and legal rights2. in a position to support and care for his children, legitimate or illegitimate, in keeping with themeans of the family3. the adopter must be at least sixteen years older than the person to be adopted, unless the adopt-er is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to

be adopted. (Art. 183, FC)

Balane: This article gives the basic rule: the adopter need not be married and need not bechildless...the adopter may still adopt so long as he is able to support his legitimate or illegitimate children.

only a minor may be adoptedexception:

Art. 182 3rd paragraph... and the case where prior to adoption, the child hadalready been de facto adopted.

Art. 185. Husband and wife must jointly adopt, except in the following cases:(1) When one spouse seeks to adopt his own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.

REPUBLIC V. CA [227 SCRA 401] - DLC: In cases where the spouses are required to jointly adopt, both of them must be qualified to adopt.

While James, a natural born US citizen, is not permitted to adopt under any of theexceptional cases enumerated in par. 3 of Art. 184, Lenita, however, can qualify pursuant to par.3 (a) of the same Art. The problem in her case lies, however, w/ Art. 185 w/c requires H & W toadopt jointly, a condition that must be read along together w/ Art. 184. The spouses who arerequired by law to adopt jointly must both be qualified to so adopt. In this case, while Lenita isqualified, James is not. Hence, they cannot adopt.

Art. 186. In case husband and wife jointly adopt or one spouse adopts thelegitimate child of the other, joint parental authority shall be exercised by the spouses inaccordance with this Code.

WHO MAY NOT ADOPT

Art. 184. The following persons may not adopt:(1) the guardian with respect to the ward prior to the approval of the final accounts

rendered upon the termination of their guardianship relation;(2) Any person who has been convicted of a crime involving moral turpitude;(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguini-ty;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse;or

(c) One who is married to a Filipino cvitizen and seeks to adopt jointly withhis or her spouse a relative by consanguinity of the latter.Aliens not included in the foregoing exceptions may adopt Filipino children in

accordance with the rules on inter-country adoption as may be provided by law.

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Balane: Anent the disqualification of an alien from adoptingRA 8043 provides for inter-country adoption. The Implementing Rules and Regulationshave already been approved (Dec.26, 1995)...even if alien is not in the Philippines, he maynow adopt under ICAL

Suppose A is a foreigner and B is a former Filipina...B has a nephew

B can adopt X under Art. 184.3. But under Art. 185, B cannot adopt X without joining her husband (Republic v. Toledano)

Art. 184 should be read together with Art. 185

REPUBLIC V. TOLEDANO [233 SCRA 9] - DLC: In case the husband and wife arerequired by law to adopt jointly, both of them must be qualified to and not disqualified to adopt.

There can be no question that Alvin Clouse (a natural born US citizen) is not qualified to

adopt under any of the exceptions found in Art. 184. In the first place, he is not a former Filipinocitizen. In the second place, Solomon is neither his relative by consanguinity nor the legitimatechild of his spouse.

Evelyn, on the other hand, appears to qualify pursuant to par. 3 (a) of Art. 184. She wasa former Filipino citzen who seeks to adopt a brother. Unfortunately, the petition for adoptioncannot be granted in her favor alone w/o violating Art. 185 w/c mandates that H and W shouldadopt jointly. Art. 185 requires a joint adoption by the H & W, a condition that must be readalong w/ Art. 184.

WHO MAY BE ADOPTED

1. only minorsexcept in cases when the adoption of a person of majority age is allowed by the FC

WHO MAY NOT BE ADOPTED

Art. 187. The following may not be adopted:(1) A person of legal age, unless he or she is a child by nature of the adopter or his

or her spouse, or prior to the adoption, said person had been consistently considered andtreated by the adopter as his or her own child during minority.

(2) An alien with whose government the Republic of the Philippines has nodiplomatic relations; and

(3) A person who has already been adopted unless such adoption has beenpreviously revoked or rescinded.

Balane: Suppose a child has been previously adopted, but is to be adopted now by thespouse of the previous adopter.

Applying Art. 187.3...the spouse may not adopt

There is a need to reconcile the apparent conflict between Art. 185 and Art. 187.3

WHERE FILED

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Sec. 1, Rule 99. Venue. A person desiring to adopt another or have the custody of a minorshall present his petition to the CFI of the province, or the municipal or justice of the peace court of the city or municipality in which he resides.

In the City of Manila, the proceedings shall be instituted in the JDRC.

PROCEDURE

Sec. 2, Rule 99. Contents of petition. The petition for adoption shall contain the sameallegations required in a petition for guardianship, to wit:

(a) The jurisdictional facts;(b) The qualifications of the adopter;(c) That the adopter is not disqualified by law;(d) The name, age, and residence of the person to be adopted and of his relatives or of the

persons who have him under their care;(e) The probable value and character of the estate of the person to be adopted.

Sec. 3, Rule 99. Consent to adoption. - There shall be filed with the petition a writtenconsent to the adoption signed by the child, if fourteen years of age or over and not incompetent,

and by the child's spouse, if any, and by each of its known living parents who is not insane orhopelessly intemperate, or has not abandoned such child, or if there are no such parents by thegeneral guardian or guardian ad litem of the child, or if the child is in the custody of an orphanasylum, children's home, or benevolent society or person, by the proper officer or officers of suchasylum, home, or society or by such person; but if the child is illegitimate and has not beenrecognized, the consent of the father to the adoption shall not be required. If the person to beadopted is of age, only his or her consent and that of the spouse, if any, shall be required.

Art. 188. The written consent of the following to the adoption shall be necessary:(1) The person to be adopted, if ten years of age or over;(2) The parents by nature of the child, the legal guardian, or the proper

governmental instrumentality;(3) The legitimate and adopted childrem, ten years of age or over, of the adopting

parent or parents;(4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and

(5) The spouse, if any, of the person adopting or to be adopted.

Balane: 188.2 will not apply to the father of an illegitimate child...who has no parentalauthority over the child.

Sec. 4, Rule 99. Order for hearing. - If the petition and consent filed are sufficient in formand substance, the court, by an order reciting the purpose of the petition, shall fix a date and placefor the hearing thereof, which date shall not be more than six (6) months after the entry of theorder, and shall direct that a copy of the order be published before the hearing at least once a week

for three (3) successive weeks in some newspaper of general circulation published in the province,as the court shall deem best.

Sec. 5, Rule 99. Hearing and judgment. - Upon satisfactory proof in open court on the datefixed in the order that such order has been published as directed, that the allegations of the petitionare true, and that it is a proper case for adoption and the petitioner or petitioners are able to bringup and educate the child properly, the court shall adjudge that thenceforth the child is freed fromall legal obligations of obedience and maintenance with respect to its natural parents, except themother when the child is adopted by her husband, and is, to all legal intents and purposes, the child

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of the petitioner or petitioners, and that its surname is changed to that of the petitioner orpetitioners.

The adopted person or child shall thereupon become the legal heir of his parents byadoption and shall also remain the legal heir of his parents.

In case of death of the adopted person or child, his parents and relatives by nature, and notby adoption, shall be his legal heir.

Sec. 6, Rule 99. Proceedings as to child whose parents are separated. Appeal. - Whenhusband and wife are divorced or living separately and apart from each other, and the question asto the care, custody, and control of a child or children of their marriage is brought before a CFI bypetition or as an incident to any other proceeding, the court, upon hearing the testimony as may bepertinent, shall award the care, custody, and control of each such child as will be for its bestinterest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity,habitual drunkenness, incapacity, or poverty.

If, upon such hearing, it appears that both parents are improper persons to have the care,custody, and control of the child, the court may either designate the paternal or maternal grandpar-ent of the child, or his oldest brother or sister, or some reputable and discreet person to take chargeof such child, or commit it to any suitable asylum, children's home, or benevolent society.

The court may in conformity with the provisions of the Civil Code order either or bothparents to support or help support said child, irrespective of who may be its custodian, and maymake any order that is just and reasonable permitting the parent who is deprived of its care andcustody to visit the child or have temporary custody thereof.

Either parent may appeal from an order made in accordance with the provisions of thissection.

No child under five (5) years of age shall be separated from its mother, unless the courtfinds there are compelling reasons therefor. (as amended by PD 603)

Sec. 7, Rule 99. Proceedings as to vagrant or abused child. - When the parents of anyminor child are dead or by reason of long absence or legal or physical disability have abandoned it,or cannot support it through vagrancy, negligence, or misconduct, or neglect or refuse to support it,or treat it with excessive harshness or give it corrupting orders, counsels, or examples, or cause orallow it to engage in begging, or to commit offenses against the law, the proper CFI, upon petitionfiled by some reputable resident of the province setting forth the facts, may issue an order requiringsuch parents to show cause, or, if the parents are dead or cannot be found, requiring the fiscal of the province to show cause, at a time and place fixed in the order, why the child should not be takenfrom its parents, if living; and if upon the hearing it appears that the allegations of the petition aretrue, and that it is for the best interest of the child, the court may make an order taking it from itsparents, if living; and committing it to any suitable orphan asylum, children's home, or benvolentsociety or person to ultimately placed, by adoption or otherwise, in a home found for it by suchasylum, children's home, society, or person.

Art. 162, PD 603. Adoption of Dependent or Abandoned or Neglected Child. - Upon thefiling of an application by any person to adopt a dependent, abandoned or neglected child in thecustody of any institution or individual mentioned in Article 156, it shall be the duty of theprovincial or city fiscal, any recognized legal association, or any appointed de officio counsel upon

being informed of such fact, to represent the DSWD in the proceedings. The costs of suchproceedings shall be de officio.

dependent child - one who is without a parent, guardian or custodian; or one whose parents,guardian or other custodian for good cause desires to be relieved of his care and custody; and isdependent upon the public for support.

abandoned child - one who has no proper parental care or guardianship, or whose parents orguardians have deserted him for a period of at least six continuous months.

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Neglected child - one whose basic needs have been deliberately unattended or inadequatelyattended. Neglect may occur in two ways:

a) physical neglect - when the child is malnourished, ill clad and without proper shelter.

A child is unattended when left by himself without provisions for his needs and/or without proper supervision. b) emotional neglect - when children are maltreated, raped or seduced; when children areexploited, overworked or made to work under conditions not conducive to good health; or aremade to beg in the streets or public places, or when children are in moral danger, or exposed togambling, prostitution and other vices.

Art. 156, PD 603. Legal Custody. - When any child shall have been committed inaccordance with the preceding article and such child shall have been accepted by theDSWD or any duly licensed child placement agency or individual, the rights of his naturalparents, guardian, or other custodian to exercise parental authority over him shall cease.

Such agency or individual shall be entitled to the custody and control of such child

during his minority, and shall have authority to care for, educate, train and place him outtemporarily or for custody and care in a duly licensed child placement agency.

Such agency or individual may intervene in adoption proceedings in such manneras shall best inure to the child's welfare.

Sec. 8, Rule 99. Service of judgment. - Final orders or judgments under this ruleshall be served by the clerk upon the civil registrar of the city or municipality wherein thecourt issuing the same is situated.

PD 603 THE CHILD AND YOUTH WELFARE CODE

Art. 32. Hurried decisions. - In all proceedings for adoption, steps should be taken

by the court to prevent the natural parents from making hurried decisions caused by strainor anxiety to give up the child, and to ascertain, that all measures to strenghten the familyhave been exhausted and that any prolonged stay of the child in his own home will beinimical to his welfare and interest.

Art. 33. Case Study. - No petition for adoption shall be granted unless the DSWDhas made a case study of the child to be adopted, his natural parents as well as theprospective adopting parents, and has submitted its report and recommendations on thematter to the court hearing such petition.

The DSWD shall intervene on behalf of the child if it finds, after such case study,that the petition should be denied.

Art. 34. Procedure. - The proceedings for adoption shall be governed by the Rules

of Court in so far as they are not in conflict with this Chapter.

Art. 35. Trial Custody. - No petition for adoption shall be finally granted unlessand until the adopting parents are given by the court a supervised trial custody period of atleast six months to assess their adjustment and emotional readiness for the legal union.

During the period of trial custody, parental authority shall be vested in theadopting parents.

The court may, upon its own motion or on motion of the petitioner, reduce ordispense with the trial custody period if it finds that it is to the best interest of the child.

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In such case, the court shall state its reasons for reducing or dispensing with thesaid period.

An alien not permanently residing in the Philippines adopting a Filipino child shallcomplete the supervised trial custody period to ensure the child's adjustment to a newfamily life and culture, save in those cases provided for in Article 27* hereof (As amendedby EO 91, Dec. 17, 1986)

* Art. 27-31 repealed by Art. 254 of EO 209, as amended, the Family Code

Art. 36. Decree of Adoption. - If, after considering the report of the DSWD or duly licensedchild placement agency and the evidence submitted before it,

the court is satisfied that the petitioner is qualified to maintain, care for, and educate thechild, that the trial custody period has been completed, and that the best interests of the child willbe promoted by the adoption, a decree of adoption shall be entered, which shall be effective as of the date of the original petition was filed.

The decree shall state the name by which the child is henceforth to be known.

Art. 37. Civil Registry Record. - The adoption shall be recorded in the local civil register

and shall be annotated on the record of birth, and the same shall entitle the adopted person to theissuance of an amended certificate of birth.

Art. 38. Confidential Nature of Proceedings and Records. - All hearings in adoption casesshall be confidential and shall not be open to the public.

All records, books and papers relating to the adoption cases in the files of the court, of theDSWD, and of any other agency or institution participating in the adoption proceedings, shall bekept strictly confidential.

Subject to the provisions of Article 7, in any case in which information from such records,books and papers is needed, the person or agency requesting the release of the information may filea petition to the court which entered the decree of adoption for its release.

If the court finds that the disclosure of the information is necessary for purposes connectedwith or arising out of the adoption and will be for the best interests of the child, the court may

permit the necessary information to be released, restricting the purposes for which it may be used.

Arts 39-42. (Repealed by Art. 254 of EO 209, as amended, the Family Code)

EFFECTS OF ADOPTION

Art. 189. Adoption shall have the following effects:(1) For civil purposes, the adopted child shall be deemed to be a legitimate child of

the adopters and both shall acquire the reciprocal rights and obligations arising from therelationship of parent and child, including the right of the adopted to use the surname of the adopters;

(2) The parental authority of the parents by nature over the adopted shallterminate and be vested in the adopters, except that if the adopter is the spouse of theparent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses;

(3) The adopted shall remain an intestate heir of his parents and other bloodrelatives.

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LAZATIN V. CAMPOS [92 SCRA 440] - Adoption is a juridical act, a proceeding inrem, which creates between two persons a relationship similar to that which results fromlegitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99, RC is valid in this jurisdiction. Itis not of natural law at all, but is wholly and entirely artificial. To establish the relation,

the statutory requirements must be carried out, otherwise, the adoption is an absolutenullity.

The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence. On the contrary, the absence of a record of adoption raisesthe presumption of its non-existence. Secondary evidence is admissible only after establishing the prior existence of the instrument lost or destroyed. Declarations of thedeceased, made in his lifetime, of any intention to adopt is not sufficient to establish thefact of adoption.

(Note: Records of a court order granting adoption even if not registered with the civilregistry, proves such adoption, and cannot be collaterally attacked in an intestate proceeding.)

Art. 190. Legal or intestate succession to the estate of the adopted shall be governedby the following rules:

(1) Legitimate and illegitimate children and descendants and the surviving spouseof the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession;

(2) When the parent, legitimate or illegitimate, or the legitimate ascendants of theadopted concur with the adopters, they shall divide the entire estate, one-half to beinherited by the parents or ascendants and the other half, by the adopters;

(3) When the surviving spouse or the illegitimate children of the adopted concurwith the adopters, they shall divide the entire estate in equal shares, one-half to beinherited by the spouse or the illegitimate children of the adopted and the other half, by the

adopters.(4) When the adopters concur with the illegitimate children and the surviving

spouse of the adopted, they shall divide the entire estate in equal shares, one-third to beinherited by the illegitimate children, one-third by the surviving spouse, and one-third bythe adopters;

(5) When only the adopters survive, they shall inherit the entire estate; and(6) When only collateral blood relatives of the adopted survive, then the ordinary

rules of legal or intestate succession shall apply.

Balane: this provision is defectively drafted. It only gives rules with regard to intestatesuccession...it does not give rules on legitimes...who are the adopted's compulsory heirsand how much are their legitimes.

RESCISSION AND REVOCATION OF ADOPTION

WHO MAY FILE PETITION FOR RESCISSION OR REVOCATION?

- A minor or other incapacitated person, through a guardian or guardian ad litemgrounds: for the same causes that authorize deprivation of parental authority

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- The adopter grounds:(a) If the adopted person has attempted against the life of the adopter;(b) When the adopted minor has abandoned the home of the adopter for more than three (3)years;

(c) When by other acts the adopted person has repudiated the adoption.(Sec. 1, Rule 100)

Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or propergovernment instrumentality acting on his behalf, on the same grounds prescribed for lossor suspension of parental authority. If the adopted is at least eighteen years of age, he maypetition for judicial rescission of the adoption on the same grounds prescribed fordisinheriting an ascendant.

Art. 192. The adopters may petition the court for the judicial rescission of the

adoption in any of the following cases:(1) If the adopted has committed any act constituting a ground for disinheriting a

descendant; or(2) When the adopted has abandoned the home of the adopters during minority for

at least one year, or, by some other acts, has definitely repudiated the adoption.

PROCEDURE

Sec. 2, Rule 100. Order to answer. - The court in which the petition is filed shall issue anorder requiring the adverse party to answer the petition within fifteen (15) days from receipt of a

copy thereof.The order and copy of the petition shall be served on the adverse party in such manner asthe court may direct.

Sec. 3, Rule 99. Judgment. - If upon trial, on the day set therefor, the court finds that theallegations of the petition are true, it shall render judgment ordering the rescisson or revocation of the adoption, with or without costs, as justice requires.

Sec. 4, Rule 100. Service of judgment. - A certified copy of the judgment rendered inaccordance with the next preceding section shall be served upon the civil registrar concerned,within thiry (30) days from rendition thereof, who shall forthwith enter the action taken by thecourt in the register.

Sec. 5, Rule 100. Time within which to file petition.- A minor or other incapacitated personmust file the petition for rescission or revocation of adoption within the five (5) years following hismajority, or if he was incompetent at the time of the adoption, within five (5) years following therecovery from such incompetency.

The adopter must also file the petition to set aside the adoption within five (5) years fromthe time the cause or causes giving rise to the rescission or revocation of the same took place.

EFFECTS

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Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate theparental authority of the parents by nature, unless the latter are disqualified orincapacitated, in which case the court shall appoint a guardian over the person andproperty of the minor.

If the adopted person is physically or mentally handicapped, the court shallappoint in the same proceeding a guardian over his person or property or both.

Judicial rescission of the adoption shall extinguish all reciprocal rights andobligations between the adopters and the adopted arising from the relationship of parentand child. The adopted shall likewise lose the right to use the surnames of the adopters andshall resume his or her surname prior to the adoption.

The court shall accordingly order the amendment of the records in the properregistries.

XI. Support

Art. 194. Support comprises everything indispensable for sustenance, dwelling,

clothing, medical attendance, education and transportation, in keeping with the financialcapacity of the family.

The education of the person entitled to be supported re ferred to in the precedingparagraph shall include his schooling or training for some profession, trade or vocation,even beyond the age of majority. Transportation shall include expenses in going to and fromschool, or to and from place of work.

Art. 195. Subject to the provisions of the succeeding articles, the following areobliged to support each other to the whole extent set forth in the preceding article:

(1) The spouses;(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate childrenof the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate childrenof the latter; and

(5) Legitimate brothers and sisters, whether of the full or half-blood.

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194,except only when the need for support of the brother or sister, being of age, is due to a causeimputable to the claimant's fault or negligence.

Art. 197. For the support of legitimate ascendants, descendants, whether legitimateor illegitimate, and brothers and sisters, whether legitimately or illegitimately related, onlythe separate property of the person obliged to give support shall be answerable providedthat in case the obligor has no separate property, the absolute community or the conjugalpartnership, if financially capable, shall advance the support, which shall be deducted fromthe share of the spouse obliged upon the liquidation of the absolute community or of theconjugal partnership.

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Balane: Support of a legitimate child should come from community property...this articlespeaks of legitimate descendants other than legitimate children

Art. 198. During the proceedings for legal separation or for annulment of marriage,

and for declaration of nullity of marriage, the spouses and their children shall be supportedfrom the properties of the absolute community or the conjugal partnership. After final judgment granting the petition the obligation of mutual support between the spouses ceases.However, in case of legal separation, the court may order that the guilty spouse shall givesupport to the innocent one, specifying the terms of such order.

LERMA V. CA [61 SCRA 440] - Adultery is a good defense against a petition for support. TA petition in bad faith, such as that filed by one who is himself or herself guiltyof an act which constitutes the ground for legal separation, can't be considered as withinthe intendment of the law granting separate support. Under Art. 303, the obligation togive support shall cease when the recipient, be he a forced heir or not, has committed someact which gives rise to disinheritance; and under Art. 291, one of the causes for

disinheriting a spouse is when the spouse has given cause for legal separation. The rightto separate support or maintenance, even from the conjugal partnership property presupposes the existence of a justifiable cause for the spouse claiming such right to liveseparately.

REYES V. INES-LUCIANO [88 SCRA 803] - While it is true that the adultery of thewife is a defense in an action for support, the alleged adultery must be established bycompetent evidence. Mere allegation that the wife has committed adultery will not bar her from the right to receive support pendente lite. During the hearing of the application for support pendente lite, adultery must be properly proved to defeat the action for support.(Note: But if both spouses are guilty of infidelity or if there has been consent or

condonation of the acts constituting infidelity, the right to support remains.)

Art. 199. Whenever two or more persons are obliged to give support, the liabilityshall devolve upon the following persons in the order herein provided:

(1) The spouse;(2) The descendants in the nearest degree;(3) The ascendants in the nearest degree;(4) The brothers and sisters.

Balane: It is important to remember the order of preference given in this article.

Art. 200. When the obligation to give support falls upon two or more persons, thepayment of the same shall be divided between them in proportion to the resources of each.

However, in case of urgent need and by special circumstances, the judge may orderonly one of them to furnish the support provisionally, without prejudice to his right to claimfrom the other obligors the share due from them.

When two or more recipients at the same time claim support from one and the sameperson legally obliged to give it, should the latter not have sufficient means to satisfy allclaims, the order established in the preceding article shall be followed, unless the concurrentobligees should be the spouse and a child subject to parental authority, in which case thechild shall be preferred.

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Balane: Art. 200 establishes the order for recipients of support

Suppose: X is being asked for support by different peoplehe should:

1. satisfy all if possible2. if he does not have enough to satisfy all, then he should go by the order under Art. 200

Art. 201. The amount of support, in the cases referred to in Articles 195 to 196,shall be in proportion to the resources or means of the giver and to the necessities of therecipient.

Art. 195. Subject to the provisions of the succeeding articles, thefollowing are obliged to support each other to the whole extent set forth in thepreceding article:

(1) The spouses;(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate andillegitimate children of the latter;

(4) Parents and their illegitimate children and the legitimate andillegitimate children of the latter; and

(5) Legitimate brothers and sisters, whether of the full or half-blood.

Art. 196. Brothers and sisters not legitimately related, whether of thefull or half-blood, are likewise bound to support each other to the full extent setforth in Article 194, except only when the need for support of the brother or sister,being of age, is due to a cause imputable to the claimant's fault or negligence.

Art. 202. Support in the cases referred to in the preceding article shall be reducedor increased proportionately, according to the reduction or increase of the necessities of the

recipient and the resources or means of the person obliged to furnish the same.

Art. 203. The obligation to give support shall be demandable from the time theperson who has a right to receive the same needs it for maintenance, but it shall not be paidexcept from the date of judicial or extra-judicial demand.

Support pendente lite (See Rule 61) may be claimed in accordance with the Rules of Court.

Payment shall be made within the first five days of each corresponding month.When the recipient dies, his heirs shall not be obliged to return what he has received inadvance.

Balane: There are two basic rules with regard to support: (1) demandable when neededand (2) payable when demanded

Demand for support may either be judicial or extrajudicial

Suppose:

X needed support from his father Y from 1 Jan 1996But X only calls his father on 1 April 1996On 1 June 1996, he files a suit against the father for support

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The Court orders support to be given

The entitlement for support shall retroact to 1 April 1996, date when extra-judicialdemand was made

Suppose no extra-judicial demand was made...then the reckoning date shall be thedate when the suit is filed...judicial demand.

Suppose demand is made but subsequently the claimant is able to supporthimself...then he is entitled to support during such time that he was unable to supporthimself...even if payment for such support is made after he had already recovered and beenable to support himself.

Balane: support in arrears...being an ordinary civil action, may be renounced...however,the right to receive support may not be renounced

Art. 204. The person obliged to give support shall have the option to fulfill theobligation either by paying the allowance fixed, or by receiving and maintaining in thefamily dwelling the person who has a right to receive support. The latter alternative cannotbe availed of in case there is a moral or legal obstacle thereto.

Art. 205. The right to receive support under this Title as well as any money orproperty obtained as such support shall not be levied upon an attachment or execution.

Art. 206. When, without the knowledge of the person obliged to give support, it isgiven by a stranger, the latter shall have a right to claim the same from the former, unless

it appears that he gave it without intention of being reimbursed.

Art. 207. When the person obliged to support another unjustly refuses or fails togive support when urgently needed by the latter, any third person may furnish support tothe needy individual, with right of reimbursement from the person obliged to give support.This Article shall apply particularly when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgentlyneeded.

Art. 208. In case of contractual support or that given by will, the excess in amountbeyond that required for legal support shall be subject to levy on attachment or execution.

Furthermore, contractual support shall be subject to adjustment whenevermodification is necessary due to changes in circumstanced manifestly beyond thecontemplation of the parties.

RULES OF COURTRULE 61SUPPORT PENDENTE LITE

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Rule 61, Sec. 1. Application. - The plaintiff, at the commencement of the proper action, orat any time afterwards but prior to final judgment, may file an application for support pendentelite, stating the grounds for the claim and the financial conditions of both parties, and shall beaccompanied by affidavits, depositions or other authentic documents in support thereof.

Rule 61, Sec. 2. Notice. - Notice of the application shall be served upon the adverse partywho shall have three (3) days to answer, unless a different period of time is fixed by the court.

Rule 61, Sec. 3. Answer. - The answer shall be in writing and accompanied by affidavits,depositions or other authentic documents supporting the same.

Rule 61, Sec. 4. Hearing. - After the answer is filed, or after the expiration of the time forits filing, a day will be set for hearing. The facts in issue shall be proved in the same manner as isprovided in connection with motions.

Rule 61, Sec. 5, Order. - The court shall determine provisionally the pertinent facts, andshall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such othercircumstances as may aid in the proper elucidation of the question involved. If the application isgranted, the court shall fix the amount of money to be provisionally paid, and the terms of payment.If the application is denied, the trial of the principal case on its merits shall be held as early aspossible.

Rule 61, Sec. 5. Enforcement of order. - If defendant fails to comply with an order grantingsupport pendente lite, he must be ordered to show cause why he should not be punished forcontempt. Should the defendant appear to have means to pay support and refuses to pay, either anorder of execution may be issued or a penalty for contempt may be imposed, or both.

XII. Parental Authority

General Provisions

Art. 209. Pursuant to the natural right and duty of parents over the person andproperty of their unemancipated children, parental authority and responsibility shallinclude the caring for and rearing of such children for civic consciousness and efficiencyand the development of their moral, mental and physical character and well-being.

MEDINA V. MAKABILI [27 SCRA 502] - While the law recognizes the right of a parent tothe custody of his/her child, courts must not lose sight of the basis principle that in all questionon the care, custody, education and property of the children, the latter's welfare shall be paramount, and that for compelling reasons, even a child uinder seven may be ordered separatedfrom the mother.

Patria potestas has been transformed from "jus vitae ac necis (the right of life and death)of the Roman Law, under which the offspring was virtually a chattel of his parents into aradically different institution. The obligational aspect of parents to rear and care for their children is now supreme. The right of parents to the company and custody of their children is

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but ancillary to the proper discharge of parental duties to provide the children with adequatesupport, education, moral, intellectual and civic training and development.The best interest of the minor can override the right of parents to the custody of their children the parent/s is/are proved to be remiss in these sacred duties.

UNSON V. NAVARRO [101 SCRA 183] - Mother of child is having an affair with brother-in-law. With this premise in view, it is in the best interest of the child to be freed from theobviously unwholesome, not to say immoral influence that the mother has plced herself. Thesituation might affect the moral and social outlook of the child who is in her formative years andmost impressionable stage in her life.

Art. 210. Parental authority and responsibility may not be renounced ortransferred except in the cases authorized by law.

SANTOS V. CA [242 SCRA 407] - The right of custody accorded to parents springs from theexercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter's needs. It is a mass of rights andobligations w/c the law grants to parents for the purpose of the children's physical preservationand dev't, as well as the cultivation of their intellect and the education of their hearts and senses.As regardas parental authority, "there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption,guardianship and surrender to a children's home or an orphan institution. When a parent entrusts

the custody of a minor to another, such as a friend or godfather, even in a document, what isgiven is merely temporary custody and it does not constitute a renunciation of parental authority.

Even if a definite renunciation is manifested, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, areduty-bound and entitled to keep them in their custody and company. xxx

xxxOnly in cases of the parent's death, absence or unsuitability may substitute parental

authority be exercised by the surviving grandparent.

Art. 211. The father and the mother shall jointly exercise parental authority overthe persons of their common children. In case of disagreement, the father's decision shallprevail, unless there is a judicial order to the contrary.

Children shall always observe respect and reverence toward their parents and areobliged to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shallcontinue exercising parental authority. The remarriage of the surviving parent shall notaffect the parental authority over children, unless the court appoints another person to bethe guardian of the person or property of the children.

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Art. 213. In case of separation of the parents, parental authority shall be exercisedby the parent designated by the Court. The Court shall take into account all relevantconsiderations, especially the choice of the child over seven years of age, unless the parentchosen is unfit.

No child under seven years of age shall be separated from the mother, unless thecourt finds compelling reasons to order otherwise.

HONTIVEROS V. IAC [132 SCRA 745]

SC relates Art.213 with Art.363 (CC) and Art. 17 (PD 603, CYWC).

A363: In all questions on the care, custody, education and property of children, the latter'swelfare shall be paramount. No mother shall be separated from her child under 7 years of age,unless the court finds compelling reasons for such measures.A17: In case of separation of his(her) parents, no child under five years of age shall be separatedfrom his (her) mother, unless the ct. finds compelling reasons to do so.(PD 603, dated Dec.10,1974)

Art.213 (FC): In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations,especially the choice of the child over seven years of age, unless the parent chosen is unfit.

ESPIRITU V. CA [242 SCRA 362] - Whether a child is under or over seven years of age, the paramount criterion must always be the child's interest. Discretion is always given to the court todecide who can best assure the welfare of the child, and award the custody on the basis of thatconsideration.

Art. 214. In case of death, absence or unsuitability of the parents, substitute

parental authority shall be exercised by the surviving grandparent. In case several survive,the one designated by the court, taking into account the same consideration mentioned inthe preceding article, shall exercise the authority.

Art. 215. No descendant shall be compelled, in a criminal case to testify against hisparents and grandparents, except when such testimony is indispensable in a crime againstthe descendant or by one parent against the other.

Substitute and Special Parental Authority

Art. 216. In default of parents or a judicially appointed guardian, the followingpersons shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

Art. 214. In case of death, absence or unsuitability of the parents,substitute parental authority shall be exercised by the surviving grandparent. Incase several survive, the one designated by the court, taking into account the sameconsideration mentioned in the preceding article, shall exercise the authority.

(2) The oldest brother or sister, over twenty one years of age, unless fit ordisqualified; and

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(3) The child's actual custodian, over twenty one years of age, unless unfit ordisqualified.

Whenever the appointment of a judicial guardian over the property of the childbecomes necessary, the same order of preference shall be observed.

Art. 217. In case of foundlings, abandoned, neglected or abused children and otherchildren similarly situated, parental authority shall be entrusted in summary judicialproceedings to heads of children's homed, orphanages and similar institutions dulyaccredited by the proper government agency.

Art. 218. The school, its administrators and teachers, or the individual, entity orinstitution engaged in child care shall have special parental authority and responsibilityover the minor child while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether insideor outside the premises of the school, entity or institution.

EXCONDE V. CAPUNO [101 P 843] - Capuno, a student and a Boy Scout, attended aRizal Day parade, drove a jeep recklessly resulting in the death of two passengers. Father was held solidarily liable for damages. SC, in an obiter, exculpated the school (not a partyto the case) on the ground that it was not a school of arts and trades. Justice JBL Reyes,with whom Padilla concurred, dissented arguing that it was the school authorities whoshould be held liable. Liability under this rule, he said, was imposed on (1) teachers ingeneral; and 2)heads of schools of arts and trades in particular. The modifying clause "of establishment of arts and trades should apply only to "heads" and not to "teachers".

MERCADO V. CA [109 P 414] (elaborates on the Exconde decision)A student cut a classmate with a razor blade. Parents of victim sued the culprit's parentsfor damages. SC held in an obiter again (school not a party again) that the school was not

liable; it's not an establishment of arts and trades. Custody requirement had not been proved as this "contemplates a situation where the student lives and boards with theteacher, such that the control, direction and influence on the pupil supersedes those of the parents.

PALISOC V. BRILLANTES [41 SCRA 548] (supersedes obiter in Exconde andMercado) A 16 year old student killed by classmate with fist blows in the schoollaboratory. Although wrongdoer was already of age and was not boarding with the school,head and teacher were held solidarily liable with him. The phrase "so long as (the students)remain in their custody" means the protective and supervisory custody that the school andits heads exercise over the pupils and students for as long as they are at attendance in theschool, including recess time. There is nothing in the law that requires that for suchliability to attach, the pupil or student who commits the tortious act must live and board inthe school as erroneously held by the lower court, and the dicta in Mercado (as well as inExconde on w/c it relied) w/c must now be deemed to have been set aside.

Note: (By JBL) Even students already of age were covered by the provision since theywere equally in the custody of the school and subject to its discipline.

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AMADORA V. CA [160 SCRA 315] - Amadora's son was shot to death by Daffon, aclassmate at school auditorium. The son was in school to submit physics project. The schoolcontends that the semester had already ended.

HELD: It is immaterial whether the semester has already ended for students were there for a

legitimate purpose. He was still in the custody of the school authorities. Even the mere savoringof the company of his friends in the school premises is a legitimate purpose w/c would also bringhim in the custody of the school. The school principal and dean are not liable bec. not teachers-in-charge, but are merely exercising general authority, not direct control and influence. But eventhe teacher-in-charge is not liable bec. there is no showing that the teacher was negligent inenforcing discipline upon Daffon nor had he waived observance of school rules and regulations.His absence when the tragedy happened cannot be considered against him bec. he was notsupposed or required to report to school on that day. So who is liable here? It's probably thedean of the boys. He had earlier confiscated an unlicensed gun from one of the students andreturned it to the latter w/o taking disciplinary action or reporting the matter to higher authorities.But while he was clearly negligent, it does not necessarily link him to the shooting since it wasnot shown that the gun was the one used to kill petitioner's son. Who is really liable here? Nobody, since none of them was found to have been charged w/ the custody of the offending

student, or has been remiss in the discharge of his duties. While the court deeply sympathizes w/the petitioners, the court cannot extend material relief as a balm to their grief.

PASCO V. CFI [160 SCRA 784] - Art. 2180, NCC w/c refers to liability of teachers or headsof establishments of arts and trades for damages caused by students who are in their custody,does not apply to the school or the university itself or to educational institutions which are notschools of arts and trades. The provision concerned speaks only of "teachers or heads."

YLARDE V. AQUINO [163 SCRA 697] - As regards the principal, We hold that he cannot bemade responsible for the death of child Ylarde, he being the head of an academic school and not

a school of arts and trades. xxx Under Art. 2180, it is only the teacher and not the head of anacademic school who should be answerable for torts committed by their students. This Courtwent on to say that in a school of arts and trades, it is only the head of the school who can beheld liable.

Where the school is academic rather than technical or vocational in nature, responsibilityfor the tort committed by the student will attach to the teacher in charge of such studentfollowing the first par. of the provision. This is the gen. rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to thegen. rule. In other words, teachers in general shall be liable for the acts of their students exceptwhere the school is technical in nature, in w/c case it is the head thereof who shall beanswerable.

SALVOSA V. IAC [166 SCRA 274] - Under the penultimate par. of Art. 2180, teachers or heads of establishments of arts and trades are liable for "damages caused by their pupils andstudents or apprentices, so long as they remain in their custody." The rationale of such liabilityis that so long as the student remains in the custody of a teacher, the latter "stands, to a certainexten, in loco parentis (as to the student) and (is) called upon to exercise reasonable supervisionover the conduct of the (student.) Likewise, "the phrase used in (Art. 2180)-- so long as the(students) remain in their custody' means that the protective and supervisory custody that theschool and its heads and teachers exercise over the pupils and students for as long as they are atattendance in the school , including recess time.

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Art. 219. Those given the authority and responsibility under the preceding Articleshall be principally and solidarily liable for damages caused by the acts or omissions of theunemancipated minor. The parents, judicial guardians or the persons exercising substituteparental authority over said minor shall be subsidiarily liable.

The respective liabilities of those referred to in the preceding paragraph shall notapply if it is proved that they exercised the proper diligence required under the particularcircumstances.

All other cases not covered by this and the preceding articles shall be governed bythe provisions of the Civil Code on quasi-delicts.

Balane: Art. 218 and 219Five (5) points to remember:

1. the rules are not limited to schools of arts and trade...now "all schools"2. authority and responsibility applies to activities inside and outside...provided

the activity is an authorized one3. the liability of the school administrators and/or teachers is solidary and

primary...the liability of the parents is subsidiary4. negligence is presumed...the burden is on the school/teacher to prove diligence5. scope of liability of school...extends only to damage caused by the child in the

course of an authorized school activity.

Suppose the injuries were inflicted on the student by persons other than fellowstudents...then do not apply 219 nor 2180NCCThe school is liable in such a case base on culpa contractual (PSBA v. CA)...school isliable for injury caused by elements coming from outside of the school

Liability for injuries caused by students:

a. below 18 (RA 6809)

1. school admi/teachers are principally and solidarily liablenegligence is prima facie presumed2. parents/guardian is subsidiarily liable

b. 18 and above

(Art 2180 NCC continues to apply)

1. applies to academic and non-academic institutions

a. academic institutions: liability attaches to teacher b. non-academic institutions: liability attaches to head of establishment.

Effect of Parental Authority Upon the Persons of the Children

Art. 220. The parents and those exercising parental authority shall have withrespect to their unemancipated children or wars the following rights and duties:

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(1) To keep them in their company, to support, educate and instruct them by rightprecept and good example, and to provide for their upbringing in keeping with theirmeans;

(2) To give them love and affection, advice and counsel, companionship andunderstanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty,integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civicaffairs, and inspire in them compliance with the duties of citizenship;

(4) To enhance, protect, preserve and maintain their physical and mental health atall times;

(5) To furnish them with good and wholesome educational materials, supervisetheir activities, recreation and association with others, protect them from bad company,and prevent them from acquiring habits detrimental to their health, studies and morals;

(6) To represent them in all matters affecting their interests;(7) To demand from them respect and obedience;(8) To impose discipline on them as may be required under the circumstances; and(9) To perform such other duties as are imposed by law upon parents and

guardians.

LUNA V. IAC [137 SCRA 7] - The manifestation of the child Shirley that she would killherself or run away from home if she should be taken away from the petitioners (grandparents)and forced to live w/ her natural parents is a circumstance that would make the execution of the jugment in the special proc. inequitable, unfair, unjust, if not illegal. The threat may be provenempty, but Shirley has a right to a wholesome family life that will provide her w/ love, care andunderstanding, guidance and couselling, and moral and material security. But what if the threatis for real. Besides, in her letters to the members of the court, Shirley depicted her biological parents as selfish and cruel and who beat her often; and that they do not lover her. To return her to the custody of the private resps. would be traumatic and cause irreparable damage to the child.

Art. 221. Parents and other persons exercising parental authority shall be civillyliable for the injuries and damages caused by the acts or omissions of their unemancipatedchildren living in their company and under their parental authority subject to theappropriate defenses provided by law.

Art. 222. The courts may appoint a guardian of the child's property, or a guardianad litem when the best interests of the child so require.

Art. 223. The parents or, in their absence or incapacity, the individual, entity orinstitution exercising parental authority, may petition the proper court of the place wherethe child resides, for an order providing for disciplinary measures over the child. The childshall be entitled to the assistance of counsel, either of his choice or appointed by the court,and a summary hearing shall be conducted wherein the petitioner and the child shall beheard. However, if in the same proceeding the court finds the petitioner at fault,irrespective of the merits of the petition, or when the circumstances so warrant, the courtmay also order the deprivation or suspension of parental authority or adopt such othermeasures as it may deem just and proper.

Art. 224. The measures referred to in the preceding article may include thecommitment of the child for not more than thirty days in entities or institutions engaged inchild care or in children's homes duly accredited by the proper government agency.

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The parent exercising parental authority shall not interfere with the care of thechild whenever committed but shall provide for his support. Upon proper petition or at itsown instance, the court may terminate the commitment of the child whenever just andproper.

Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall, jointly exercise legal guardianship overthe property of their unemacipated common child without the necessity of a courtappointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceedsP50,000, the parent concerned shall be required to furnish a bond in such amount as thecourt may determine, but not less than 10% of the value of the property or annual income,to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of theplace where the child resides, or, if the child resides in a foreign country, in the proper

court of the place where the property or any part thereof is situated.The petition shall be docketed as a summary special proceeding in which all

incidents and issues regarding the performance of the obligations referred to in the secondparagraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when thechild is under substitute parental authority, or the guardian is a stranger, or a parent hasremarried, in which case the ordinary rules on guardianship shall apply.

PINEDA V. CA [226 SCRA 754] - It is clear from Art. 225 that regardless of the value of theunemancipated common child's property, the father and mother ipso jure become the legalguardian of the child's property. However, if the market value of the prop. or the annual incomeof the child exceeds P50,000, a bond has to be postedby the parents concerned to guarantee the

performance of the obligations of a general guardian. It must, hoewever, be noted that the 2nd par. of Art. 225 speaks of the market value of the property or the annual income of the child,"w/c means, therefore, the aggregate of the child's prop. or annual income; if this exceeds P50T, a bond is required. There is no evidence that the share of each of the minors in the proceeds of thegroup policy in question is the minor's only property. W/o such evidence, it would not be safe toconclude that, indeed, that is his only property.

Art. 226. The property of the unemancipated child earned or acquired with hiswork or industry or by onerous or gratuitous title shall belong to the child in ownershipand shall be devoted exclusively to the latter's support and education, unless the title ortransfer provides otherwise.

The right of the parents over the fruits and income of the child's property shall belimited primarily to the child's support and secondarily to the collective daily needs of thefamily.

Art. 227. If the parents entrust the management or administration of any of theirproperties to an unemancipated child, the net proceeds of such property shall belong to theowner. The child shall be given a reasonable monthly allowance in an amount not less thanthat which the owner would have paid if the administrator were a stranger, unless theowner, grants the entire proceeds to the child. In any case, the proceeds thus given in wholeor in part shall not be charged to the child's legitime.

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Balane: This article refers to profectitious property property owned by the parents andgiven to the child for administration

Ownership belongs to parents, Usufruct belongs to parents

The child is entitled to reasonable allowance...not less than what a 3rd person would get if management was entrusted to such 3rd person, administration belongs to the child.

Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently:(1) Upon the death of the parents;(2) Upon the death of the child;(3) Upon emancipation of the child.

Art. 229. Unless subsequently revived by a final judgment, parental authority also

terminates:(1) Upon adoption of the child;(2) Upon appointment of a general guardian;(3) Upon judicial declaration of abandonment of the child in a case filed for the

purpose;(4) Upon final judgment of a competent court divesting the party concerned of

parental authority; or(5) Upon judicial declaration of absence or incapacity of the person exercising

parental authority.

Art. 230. Parental authority is suspended upon conviction of the parent or the

person exercising the same of a crime which carries with it the penalty of civil interdiction.The authority is automatically reinstated upon service of the penalty or upon pardon oramnesty of the offender.

Art. 231. The court in an action filed for the purpose or in a related case may alsosuspend parental authority if the parent or the person exercising the same; (1) Treats thechild with excessive harshness or cruelty;

(2) Gives the child corrupting orders, counsel or example;(3) Compels the child to beg, or(4) Subject the child or allows him to be subjected to acts of lasciviousness.The grounds enumerated above are deemed to include cases which have resulted

from culpable negligence of the parent or the person exercising parental authority.If the degree of seriousness so warrants, or the welfare of the child so demands, the

court shall deprive the guilty party of parental authority or adopt such other measures asmay be proper under the circumstances.

The suspension or deprivation may be revoked and the parental authority revivedin a case filed for the purpose or in the same proceeding if the court finds that the causetherefor has ceased and will not be repeated.

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CHUA V. CABANGBANG [27 SCRA 792] - F: This is a petition for habeas corpus by PacitaChua against Mr. and Mrs. Bartolome Cabangbang to recover custody of Betty Chua alias "GraceCabangbang," the natural daughter of Pacita, who was a hostess.

HELD: Abandonment is one of the grounds for depriving parents of parental authority over their

children.xxxPetitioner surrendered the custody of her child to the Cabangbangs in 1958. She waited

until 1963, or after the lapse of a period of 5 long years, before she brought action to recover custody. Her claim that she did not take any step to recover her child bec. the Cabangbangs were powerful and influential, does not deserve any modicum of credence. xxx

For 5 long yrs. and thereafter, she did not once move to recover the child. Shecontinuously shunned the natural and legal obligations w/c she owed to the child; completelywithheld her presence, her love, her care, and the opportunity to display maternal affection; andtotally denied her support and maintenance. Her silence and inaction have been prolonged tosuch a point that her abandonment of the child and her total relinquishment of parental claimover her, can and should be inferred as a matter of law.

Art. 232. If the person exercising parental authority has subjected the child orallowed him to be subjected to sexual abuse, such person shall be permanently deprived bythe court of such authority.

Art. 233. The person exercising substitute parental authority shall have the sameauthority over the person of the child as the parents.

In no case shall the school administrator, teacher or individual engaged in childcare exercising special parental authority, inflict corporal punishment upon the child.

XII. EMANCIPATION AND AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwiseprovided, majority commences at the age of eighteen years. (as amended by RA 6809)

[Emancipation also takes place:(1) By the marriage of the minor; or (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least 18 years of age. Such emancipationshall be irrevocable.]

Tolentino: RA 6809 provides that its effectivity on existing wills, bequests, donations, grants,insurance policies and similar instruments containing references and provisions favorable tominors will not retroact to their prejudice.

Art. 235. (Repealed by RA 6809)

Art. 236. Emancipation shall terminate parental authority over the person andproperty of the child who shall then be qualified and responsible for all acts of civil life,save the exceptions established by existing laws in special cases.

Contracting marriage shall require parental consent until the age of 21.

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Nothing in this Code shall be construed to derogate from the duty or responsibilityof parents and guardians for children and wards below 21 years of age mentioned in thesecond and third paragraphs of Article 2180 of the Civil Code (as amended by RA 6809)

Tolentino: Requisites of Marriage.-- A marriage of a person bet. 18 and 21 years will still

require parental consent, w/o w/c the marriage will be viodable. This is an anomalous situation.An emancipated person, who can enter into any contract and qualified for all acts of civil life, isstill required to have parental consent for marriage. The provisions on marriage should have been adjusted.

Quasi-delicts of Children.

Art. 2180. xxx The father and, in case of his death or incapacity, the mother, areresponsible for the damages caused by the minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who areunder their authority and live in their company. (Civil Code.)

Tolentino: The last par. of Art. 236 is even more anomalous. Upon emancipation of a child after

reaching 18 years, parental authority ceases, and yet responsibility for his torts continues until hereaches 21 years of age. This is a case of responsibility w/o authority.

Balane: Under the present law, there are 2 classifications of emancipation: Perfect emancipation where the emancipated is qualified for all acts of civil life. Perfect emancipation isattained upon reaching the age of 21 yrs. old.

Imperfect Emancipation. An 18 yr-old, although emancipated needs parental consent for marriage. Parents or guardians continue to be liable under Art. 2180 until he reaches the age of 21 yrs. old.

BALANE CASE:

BALIWAG TRANSIT V. CA [169 S 849] - F: On 4/10/85 a complaint for damages arising from breach of contract of carriage was filed by pvt. resps., the sps. Sotero Cailipan, Jr. and Zenaida Lopez,and their son George, of legal age, against petitioner Baliwag Transit. The complaint alleged that Georgewho was a paying passenger on a Baliwag bus on 12/17/83, suffered multiple serious physical injurieswhen he was thrown off said bus driven in a careless and negligent manner by Leonardo Cruz, theauthorized bus driver of Baliwag. As a result, he was confined in the hospital for treatment, incurringmedical expenses, w/c were borne by his parents.

Thereafter Fortune Insurance (insurance co. of Baliwag) and Baliwag filed Motions to Dismiss onthe ground that George, in consideration of P8,020.50 had executed a "Release of Claims" w/c motionswere denied as they were filed beyond the time for pleading and after the answer has already been filed.A motion to admit amended ans. w/c incorporated the affirmative defense of release was then admitted.The RTC-Bulacan dismissed the compalaint and the 3rd party complaint on the ground of release. TheCA set aside the order of RTC.

ISSUE: The legal effect of the Release of Claims executed by George during the pendency of the case.

HELD: We hold that since the suit is one for breach of contract of carriage, the Release of Claims executed by him, as the injured party, discharging Fortune Insurance and Baliwag fromany and all liability is valid. He was then of legal age, a graduating student of AgriculturalEngineering, and had the capacity to do acts w/ legal effect (Art. 37 in relation to Art. 402.)Thus, he could sue and be sued even w/o the assistance of his parents.

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XIV. SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Scope of Application

Art. 238. Until modified by the Supreme Court, the procedural rules in this Titleshall apply in all cases provided for in this Code requiring summary court proceedings.Such cases shall be decided in an expeditious manner without regard to technical rules.

Separation in Fact Between Husband and Wife

Art. 239. When a husband and wife are separated in fact, or one has abandoned theother and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a

verified petition may be filed in court alleging the foregoing facts.The petition shall attach the proposed deed, if any, embodying the transaction, and,

if none, shall describe in detail the said transation and state the reason why the requiredconsent thereto cannot be secured. In any case, the final deed duly executed by the partiesshall be submitted to and approved by the court.

Art. 240. Claims for damages by either spouse, except costs of the proceedings, maybe litigated only in a separate action.

Art. 241. Jurisdiction over the petition shall, upon proof of notice to the otherspouse, be exercised by the proper court authorized to hear family cases, if one exists, or inthe regional trial court or its equivalent, sitting in the place where either of the spouses

resides.

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

Art. 243. A preliminary conference shall be conducted by the judge personallywithout the parties being assisted by counsel. After the initial conference, if the court deemsit useful, the parties may be assisted by counsel at the succeeding conferences and hearings.

Art. 244. In case of non-appearance of the spouse whose consent is sought, the courtshall inquire into the reasons for his failure to appear, and shall require such appearance,if possible.

Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is notsecured, the court may proceed ex parte and render judgment as the facts andcircumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse.

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Art. 246. If the petition is not resolved at the initial conference, said petition shallbe decided in a summary hearing on the basis of affidavits, documentary evidence or oraltestimonies at the sound discretion of the court. If testimony is needed, the court shallspecify the witnesses to be heard and the subject matter of their testimonies, directing theparties to present said witnesses.

Art. 247. The judgment of the court shall be immediately final and executory.

Art. 248. The petition for judicial authority to administer or encumber specificseparate property of the abandoning spouse and to use the fruits or proceeds thereof forthe support of the family shall also be governed by these rules.

Incidents involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involvingparental authority shall be verified.

Art. 223. The parents or, in their absence or incapacity, the individual, entity or

institution exercising parental authority, may petition the proper court of the place wherethe child resides, for an order providing for disciplinary measures over the child. The childshall be entitled to the assistance of counsel, either of his choice or appointed by the court,and a summary hearing shall be conducted wherein the petitioner and the child shall beheard. However, if in the same proceeding the court finds the petitioner at fault,irrespective of the merits of the petition, or when the circumstances so warrant, the courtmay also order the deprivation or suspension of parental authority or adopt such othermeasures as it may deem just and proper.

Art. 225. The father and mother shall, jointly exercise legal guardianship over theproperty of their unemancipated common child without the necessity of a courtappointment. In case of disagreement, the father's decision shall prevail, unless there is a

judicial order to the contrary.Where the market value of the property or the annual income of the child exceeds

P50,000, the parent concerned shall be required to furnish a bond in such amount as thecourt may determine, but not less than 10% of the value of the property or annual income,to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of theplace where the child resides, or, if the child resides in a foreign country, in the propercourt of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which allincidents and issue regarding the performance of the obligations referred to in the secondparagraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when thechild is under substitute parental authority, or the guardian is stranger, or a parent hasremarried, in which case the ordinary rules on guardianship shall apply.


Art. 250. Such petitions shall be filed in the proper court of the place where thechild resides.

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Art. 251. Upon the filing of the petition, the court shall notify the parents or in theirabsence or incapacity, the individuals, entities or institutions exercising parental authorityover the child.

Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings

under this Chapter insofar as they are applicable.

Other Matters Subject to Summary Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise governsummary proceedings filed under Article 41, 51, 69, 73, 96, 124 and 217, insofar as theyapplicable.

Art. 41. A marriage contracted by any person during the subsistence of a previousmarriage shall be null and void, unless before the celebration of the subsequent marriage,the prior spouse had been absent for four consecutive years and the spouse present had awell-founded belief that the absent spouse was already dead. In case of disappearancewhere there is danger of death under the circumstances set forth in the provisions of

Article 391 of the Civil Code, an absence of only two years shall be sufficient.For the purpose of contracting the subsequent marriage under the preceding

paragraph, the spouse present must institute a summary proceeding as provided in thisCode for the declaration of presumptive death of the absentee, without prejudice to theeffect of reappearance of the absent spouse.

Art. 51. In said partition, the value of the presumptive legitimes of all common chil-dren, computed as of the date of the final judgment of the trial court, shall be delivered incash, property or sound securities, unless the parties, by mutual agreement judiciallyapproved, had already provided for such matters.

The children or their guardian, or the trustee of their property, may ask for theenforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no wayprejudice the ultimate successional rights of the children accruing upon the death of eitheror both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.

Art. 69. The husband and wide shall fix the family domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the latter should liveabroad or there are other valid and compelling reasons for the exemption. However, suchexemption shall not apply if the same is not compatible with the solidarity of the family.

Art. 73. Either spouse may exercise any legitimate profession, occupation, businessor activity without the consent of the other. The latter may object only on valid, serious,and moral grounds.

In case of disagreement, the court shall decide whether or not:(1) The objection is proper, and(2) Benefit has accrued to the family prior to the objection or thereafter. If the

benefit accrued prior to the objection, the resulting obligation shall be enforced against theseparate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who acted in goodfaith.

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Art. 96. The administration and enjoyment of the community property shall belongto both spouses jointly. In case of disagreement, the husband's decision shall prevail,subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in

the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrancewhich must have the authority of the court or the written consent of the other spouse. Inthe absence of such authority or consent, the disposition or encumbrance shall be void.However, the transaction shall be construed as a continuing offer on the part of theconsenting spouse and the third person, and may be perfected as a binding contract uponthe acceptance by the other spouse or authorization by the court before the offer iswithdrawn by either or both offerors.

Art. 124. The administration and enjoyment of the conjugal partnership propertyshall belong to both spouses jointly. In case of disagreement, the husband's decision shall

prevail, subject to recourse to the court by the wife for proper remedy, which must beavailed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate inthe administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrancewhich must have the authority of the court or the written consent of the other spouse. Inthe absence of such authority or consent, the disposition or encumbrance shall be void.However, the transaction shall be construed as a continuing offer on the part of theconsenting spouse and the third person, and may be perfected as a binding contract uponthe acceptance by the other spouse or authorization by the court before the offer iswithdrawn by either or both offerors.

Art. 217. In case of foundlings, abandoned, neglected or abused children and otherchildren similarly situated, parental authority shall be entrusted in summary judicialproceedings to heads of children's homes, orphanages and similar institutions duly accred-ited by the proper government agency.

FINAL PROVISIONS

Art. 254. (Repeal of provisions)

Art. 255. If any provision of this code is held invalid, all the other provisions notaffected thereby shall remain valid.

Art. 256. This Code shall have retroactive effect insofar as it does not prejudice orimpair vested or acquired rights in accordance with the Civil Code or other laws.

Art. 257. Effectivity (August 3, 1988)

XVI. CARE AND EDUCATION OF CHILDREN

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Art. 363. In all questions on the care, custody, education and property of children, thelatter's welfare shall be paramount. No mother shall be separated from her child under sevenyears of age, unless the court finds compelling reasons for such measure.

FLORES V. ESTEBAN [51 O.G. 9, p. 4525 (1955)] - As against the paternal grandparent, the

maternal grandparent may be given substitute parental authority if it will be for the best interestand welfare of the child. It should be considered that the maternal grandmother is almost amother to the child since he was 20 days old, and there exists mutual love between thegrandmother and the child. This is without prejudice to the obligation of the father to contributeto his maintenance.

LUNA V. IAC [137 S 7 (1985)] - In child custody cases, an execution of final judgment of appellate courts awarding child custody to the child's biological parents may be stayed whereduring hearings on execution the child manifests that she will kill herself and escape if given tocustody of her biological parents. In child custody cases, the child's welfare and future is paramount and execution of a final judgment which may run contrary thereto may be set aside.

XVII. USE OF SURNAMES

Tolentino: Concept of Name.-- A name is a word or combination of words by w/c a person isknown and identified, and distinguished from others, for the convenience of the world at large inaddressing him, or in speaking of or dealing w/ him. (Balane quotes Tolentino on this.)

Characteristics of Name.-- (1) It is absolute, intended to protect the individual from beingconfused w/ others; (2) it is obligatory in certain respects, for nobody can be w/o a name; (3) Itis fixed, unchageable, or immutable, at least at the start, and may be changed only for good causeand by judicial proceedings; (4) it is outside the commerce of man, and, therefore, inalienableand intransmissible, by act inter vivos or mortis causa; (5) it is imprescriptible. (Balane quotes

Tolentino on this.)

Balane: Surname.-- A surname is that w/c identifies the family from w/c a person belongs andis passed from parent to child.

Basic Principles:(1) A person's real name is that w/c appears in the Civil Registry.(2) If you want to change your real name, you have to go through judicial proceedings, a petitionfor change of name.(3) However, a person can use other names w/c are authorized by CA 142 as amended by RA6085 (re: use of pseudonym.)(4) Some guidelines regarding change of name

(a) In a petition for change of name, courts are generally strict. You have to showsufficient cause;

(b) However, in a petition for injunction or in a criminal case for violation of CA 142,courts will generally be more liberal (Legamia v. IAC, infra. Tolentino v. CA, infra.) provided itdoes not cause confusion, there is no fraud or BF;

(c) In case of adoption where the woman adopts alone, it is the middle name that should be given the child. (Johnston v. Republic, infra.)

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Art. 364. Legitimate and legitimated children shall principally use the surname of the father.

BALANE CASES:

NALDOZA V. REPUBLIC [112 S 568] - F: Zosima Naldoza was married to DionesioDivinagracia on 5/30/70. They begot 2 children named Dionesio, Jr. and Bombi Roberto. Zosima'shusband left her after she confronted him w/ his previous marriage w/ another woman. He never returnedto the conjugal abode. He allegedly swindled Cong. Maglana in the sum of P50, 000, and other persons.The classmates of Dionesio, Jr. and Bombi allegedly teased them about their father being a swindler.Two criminal cases for estafa were filed in court against the father.

Desirous of obliterating any connection bet. her 2 minor children and their scapegrace father,Zosima, on 8/10/78, filed in CFI-Bohol a petition wherein she prayed that the surname of their 2 children

be changed from Divinagracia to Naldoza, her surname. After due publication and hearing, the trial courtdismissed the petition.

ISSUE: W/n two minors should be allowed to discontinue using their father's surname andshould use only their mother's surname.

HELD: No. We hold that the trial court did not err in denying the petition for change of name.The 2 minors, who are presumably legitimate, are supposed to bear principally the

surname Divinagracia, their father's surname (Art. 364.)To allow them, at their mother's behest, to bear only their mother's surname and to

discard altogether their father's surname, thus removing the prima facie evidence of their paternal provenance or ancestry, is a serious matter in w/c, ordinarily, the minors and their father should be consulted. The mother's desire should not be the sole consideration.

The change of name is allowed only when there are proper and reasonable causes for such change. Where, as in this case, the petitioners are minors, the courts should take intoaccount whether the change of name would redound (to) their welfare or would prejudice them.

To allow the change of surname would cause confusion as to the minors' parentage andmight create the impression that the minors are illegitimate since they would carry the maternal

surname only. That would be inconsistent w/ their legitimate status as indicated in their birthrecords.

REPUBLIC V. MARCOS [182 S 223] - F: On 3/30/68, a verified petition was filed by pvt. respPang Cha Quen alleging that she is a citizen of Nationalist China, married to Alfredo de la Cruz, aFilipino; that she had resided in Baguio City since her birth on 1/29/30; that by a previous marriage to SiaBian alias Huang Tzeh Lik, a citizen of Nationalist China, she gave birth to a daughter, May Sia aliasManman Juang on 1/28/58 in the city of Mla.; that on 1/12/59, she caused her daughter to be registered asan alien under the name of Mary Pang, i.e., using the maternal surname, bec. the child's father had

abandoned them; that her daughter has always used the name Mary Pang at home and in theBaguio Chinese Patriotic School where she studies; that on 8/16/66, petitioner Pang Cha Quenmarried Alfredo de la Cruz; that as her daughter has grown to love and recognize her stepfather

as her own father, she desires to adopt and use his surname "De la Cruz" in addition to her name"Mary Pang" so that her full name shall be Mary Pang De la Cruz; that Alfredo De la Cruz gavehis conformity to the petition by signing at the bottom of the pleading. Finding the petitionmeritorious, resp. Judge issued an order on 2/12/69 authorizing the name of the minor, May Siaalias Manman Huang also known as Mary Pang, to be changed to Mary Pang de la Cruz.

ISSUES: (1) W/n resp. Judge had acquired jurisdiction over the case; and

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(2) W/n resp. Judge erred in granting the petition although pvt. resp. Pang Cha Quenfailed to adduce proper and reasonable cause for changing the name of the minor "May Sia" alias"Manman Huang."

HELD: (1) The trial court did not acquire jurisdiction over the subject of the proceedings, i.e.,

the various names and aliases of the petitioner w/c she wished to change to "Mary Pang De laCruz/" The omission of her other alias-- "Mary Pang"-- in the captions of the court's order andof the petition defeats the purpose of the publication. For a publication of a petition for a changeof name to be valid, the title thereof should include, first , his real name, and second, his aliases,if any." (Jesus Ng Yao Sing v. Republic, 16 S 483.) [T]he reason for the rule requiring theinclusion of the name sought to be adopted and the other names or aliases of the applicant in thetitle of the petition or in the caption of the published order is that the ordinary reader onlyglances fleetingly at the caption of the published order or the title of the petition in a spec. proc.for a change of name. Only if the caption or the title strikes him bec. one or all of the namesmentioned are familiar to him, does he proceed to read the contents of the order.

(2) The court erred in granting a change of name. The reasons offered for changing thename of petitioner's daughter are: (1) that "her daughter in law grew up w/, and learned to loveand recognize Alfredo De la Cruz as her own father"; (2) to afford her daughter a feeling of

security; and (3) that Alfredo de la Cruz agrees to this petition.Clearly, these are not valid reasons for a change of name. The general rule is that a

change of name should not be permitted if it will give a false impression of family relationship toanother where none actually exists. [O]ur laws do not authorize legitimate children to adopt thesurname of a person not their father, for to allows them to adopt the surname of their mother'shusband, who is not their father, can result in confusion of their paternity.

Another reason for disallowing the petition for change of name is that it was not filed bythe proper party. The petition must be filed by the person desiring to change his/her name, evenif it may be signed and verified by some other person in his behalf. In this case, however, the petition was filed by Pang Cha Quen not by May Sia.

Hence, only May Sia herself, alias Manman Huang, alias Mary Pang, when she shall

have reached the age of majority, may file the petition to change her name. The decision tochange her name, the reason for the change, and the choice of a new name and surname shall behers alone to make. It must be her personal choice.

Art. 365. An adopted child shall bear the surname of the adopter.

BALANE CASE:

JOHNSTON V. REPUBLIC [7 S 1040] - F: On 6/24/60, petitioner-appellant Isabel ValdesJohnston, filed a petition for the adoption of one Ana Isabel Henriette Antonio Concepcion Georgiana, 2yrs. and 10 mos. old, then under the custody of the Hospicio de San Jose. After hearing, the lower courtrendered a decision granting the petition. The petitioner-appellant filed a motion on 10/24/60, prayingthat the surname given to the minor be "Valdes Johnston," instead of "Valdes" only, but this motion was

denied by the lower court. Hence this appeal.

HELD: We agree w/ the decision of the LC authorizing or prescribing the use of the surnameValdez by the adopted child. The provision of law (341, par. 2) w/c entitles the adopted minor tothe use of the adopter's surname, refers to the adopter's own surname and not to her surnameacquired by virtue of marriage. Petitioner-appellant's real surname is Valdes and not Johnston,and as she made the adoption singly w/o the concurrence of her H, and not as a married woman,her name as adopter was her maiden name. The adoption created a personal relationship bet. theadopter and the adopted, and the consent of Isabel Valdes' H, to the adoption by her individually,

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did not have the effect of making him an adopting father, so as to entitle the child to the use of Johnston's own surname.

Since adoption gives the person adopted the same rights and duties as if he were alegitimate child of the adopter (341, par. 1, NCC), much confusion would indeed result, if theminor child herein were allowed to use the surname of the spouse who did not join in the

adoption.

Art. 366. A natural child acknowledged by both parents shall principally use thesurname of the father. If recognized by only one of the parents, a natural child shallemploy the surname of the recognizing parent.

Tolentino: This rule applies even when the recognition was made first by the mother and later bythe father, bec. no distinction is made in the law.

In view of the elimination in the Family Code of the "Natural Child" as a class of children, this provision should apply to all illegitimate children.

BALANE CASE:

LLANETA V. AGRAVA [57 S 29] - F: Teresita's mother, Anatacia Llaneta, was once married toSerafin Ferrer w/ whom she had but 1 child. In 1942 Serafin F. died and about 4 yrs. later Anatacia hadrelations w/ another man out of w/c Teresita was born. Shortly after Teresita's (T) birth, Atanacia (A)

brought her to Mla. where all of them lived w/ A's mother-in-law, Victoria vda. de Ferrer. T was raisedin the household of the Ferrers, using the surname of Ferrer in all her dealings and throughout her schooling.

When she was about 20 yrs. old, she applied for a copy of her birth cert. in Irosin, Sorsogon, where shewas born, as she was required to present it in connection w/ a scholarship granted to her. It was then thatshe discovered that her registered surname is Llaneta-- not Ferrer-- and that she is the illegitimate child of A and an unknown father.

On the ground that her use thenceforth of the surname of Llaneta, instead of Ferrer, w/c she had been using since she acquired reason ,would cause untold difficulties and confusion, T petitioned the

court below for change of name. After trial, resp. Judge, denied her petition. Hence, the presentrecourse.

HELD: The petition is granted.The petitioner has established that she has been using the surname Ferrer for as long as

she can remember; that all her records in school and elsewhere, put her name down as T. Ferrer;that her friends and associates know her only as T. Ferrer; and that even the late Serafin F.'snearest of kin have tolerated and still approve of her use of the surname Ferrer. Indeed, a suddenshift at this time by the petitioner to the name of T Llaneta (in order to conform to that appearingin the birth cert.) would result in confusion among the persons and entities she deals w/ andentail endless and vexatious explanations of the circumstances of her new name. The petitioner has established that she has been using the surname Ferrer for as long as she can remember; thatall her records in school and elsewhere, put her name down as T. Ferrer; that her friends and

associates know her only as T. Ferrer; and that even the late Serafin F.'s nearest of kin havetolerated and still approve of her use of the surname Ferrer.

The resp. court places reliance on the decisions of this court w/c disallowed such changeof name as would give the false impression of family relationship. The principle remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to thecommunity in general.

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Art. 367. Natural children by legal fiction shall principally employ the surname of the father.

Art. 368. Illegitimate children referred to in article 287 shall bear the surname of the mother.

Art. 369. Children conceived before the decree annulling a voidable marriage shallprincipally use the surname of the father.

Art. 370. A married woman may use:(1) Her maiden first name and surname and add her husband's surname;(2) Her maiden first name and her husband's surname; or(3) Her husband's full name, but prefixing a word indicating that she is his wife,

such as "Mrs."

Tolentino: Husband's Surname Optional.-- The word "may" is used, indicating that the use of the husband's surname by the wife is permissive rather than obligatory. We have no law w/c provides that the wife shall change her surname to that of the husband upon marriage. It seems,

therefore, that a married woman may use only her maiden name and surname. She has an option, but not a duty, to use the surname of the husband in any of the ways provided by this article.

Right of Wife not Exclusive.-- The wife cannot claim an exclusive right to use the husband'ssurname. She cannot be prevented from using it; but neither can she restrain others from using it.

BALANE CASES:

TELMO V. REPUBLIC [73 S 29] - F: Milagros Llerena was admitted to the bar in 1923. In her atty.'s oath, she used the name Milagros Llerena-Telmo. In 1930 or '31 she married Pedro M. Telmo.They begot 4 sons, now all of age, who were baptized w/ the surname "Telmo" but who sincekindergarten days have been using the surname "Thelmo." When the Telmo spouses sojourned in the US,Pedro T., following the American style, changed the spelling of his name to "Thelmo." In his diploma asmechanical and marine engr. issued by the Univ. of Michigan, his surname is allegedly spelled "Thelmo."Mrs. Thelmo was appointed justice of the peace of Zamboanga and later as a midnight Judge of CFI butwas unable to exercise the functions of that office. She admitted in the administrative cases filed againsther when she was still a justice of the peace some complainants used the name "Telmo" and others used"Thelmo."

On 2/15/64, she filed a petition in the CFI of Zamboanga City praying that her husbands'ssurname "Telmo" be changed to "Thelmo." Her H did not join her as a co-petitioner. But he executed anaffidavit wherein he manifested that he interposed no objection to his wife's petition. Two of her 4 sonsexecuted a joint affidavit expressing conformity to their mother's petition.

The lower court granted the petition. Hence, this appeal.

HELD: The appeal may be upheld on a jurisdictional ground. Mrs. Telmo in the title of her petition did not indicate that she wanted her surname to be changed to "Thelmo." The published

order setting her petition for hearing reproduced the defective title thereof. That publication wasinvalid and ineffective.

A change of name is a proc. in rem. Jurisdiction to hear and determine the petition for change of name is acquired after due publication of the order containing certain data, among w/cis the name sought to be adopted, w/c should be indicated in the title of the petition

The reason for the rule is that the ordinary reader "glances fleetingly at the captions of the published orders or the titles of the petitions. Only if the caption or the title strikes him doesthe reader proceed to read on. And the probability is great that the reader does not at all notice

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the other names and/or aliases or the applicant if these are mentioned only in the body of theorder or petition.

As the tile of the petition in this case and the order setting it for hearing were deficient,the lower court did not acquire jurisdiction over the proc.

On the issue of w/n there is ample justification to allow Mrs. Telmo to change the spelling of her husband's surname, the SC held in the negative.

A married woman may use her husband's surname. It is axiomatic that if she desires judicial authorization to change the spelling of his surname, her H should initiate the proceeding.In the instant case, the anomaly is that the H did not ask for judicial authority to change thespelling of his surname. It was his wife who filed the petition. The irregularity in the petition isobvious.

It is true that the wife submitted to the court her H's affidavit of conformity to thechange in the spelling of his surname. But that would not prevent him and their children fromusing the old spelling. And in that event, confusion and error might arise.

Moreover, the court has arrived at the conclusion that those reasons adduced by Mrs.Telmo for a change in the spelling of her H's surname are not substantial and cogent enough to

sustain her petition.

TOLENTINO V. CA [162 S 66] - F: Resp. Consuelo David was legally married to ArturoTolentino (AT) on 2/8/31. Their marriage was dissolved and terminated pursuant to the law during theJapanese occupation on 9/15/43 by a decree of absolute divorce granted by the CFI-Mla. on the ground of desertion and abandonment by the wife. The trial court granted the divorce. Thereafter, AT married acertain Pilar Adorable who died soon after their marriage. AT subsequently married Constancia on4/21/45. Consuelo David, on the other hand, continued using the surname of Tolentino after the divorceand up to the time of the filing of this complaint. The 3rd party def. in his ans., admitted that the use of the surname Tolentino by pvt. resp. was w/ his and his family's consent.

ISSUE: W/n a divorced woman may continue using the surname of her former husband.

HELD: Yes. There is no merit in the petitioner's claim that to sustain the private resp.'s stand isto contradict Articles 370 and 371 of the NCC. It is significant to note that Sen. Tolentinohimself in his commentary on Art. 370 states that "the wife cannot claim an exclusive right touse the husband's surname. She cannot be prevented from using it; but neither can she restrainothers from using it."

Art. 371 is not applicable to the case at bar bec. Art. 371 speaks of annulment while thecase before us refers to absolute divorce where there is a severance of valid marriage ties. Theeffect of divorce is more akin to the death of the spouse where the deceased woman continues to be referred to as the Mrs. of her H even if the latter has remarried rather than to annulment sincein the latter case, it is as if there had been no marriage at all.

The pvt. resp. has established that to grant the injunction to the petitioner would be an

act of serious dislocation to her. She has given proof that she entered into contracts w/ 3rd persons, acquired prop. and entered into other legal relations using the surname Tolentino. The petitioner, on the other hand, has failed to show that she would suffer any legal injury or deprivation of legal rights inasmuch as she can use her H's surname and be fully protected in casethe resp. uses the surname Tolentino for illegal purposes.

There is no usurpation of the petitioner's name and surname in this case so that the mereuse of the surname Tol. by pvt. resp cannot be said to have injured the petitioner's rights. Theusurpation of name implies some injury to the interests of the owner of the name. It consists inthe possibility of confusion of identity xxx bet. the owner and the usurper. It exists when a

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person designates himself by another name. xxx. The following are the elements of usurpationof a name: (1) there is an actual use of another's name by def.; (2) the use is unauthorized; and(3) the use of another's name is to designate personality or identify a person. None of theseelements exists in the case at bar and neither is there a claim by petitioner that the pvt resp.impersonated her.

Art. 371. In case of annulment of marriage, and the wife is the guilty party, sheshall resume her maiden name and surname. If she is the innocent spouse, she may resumeher maiden name and surname. However, she may choose to continue employing herformer husband's surname, unless:

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

Art. 372. When legal separation has been granted, the wife shall continue using hername and surname employed before the legal separation.

Tolentino: This is so bec. her married status is not affected by the separation, there being no

severance of the vinculum.

Art. 373. A widow may use the deceased husband's surname as though he were stillliving, in accordance with article 370.

Tolentino: Inasmuch as there is no more vinculum actually existing w/ the deceased husband,and considering that the widow has her own independent personality, the use of the former husband's surname is optional, and not obligatory, for her.

Art. 374. In case of identity of names and surnames, the younger person shall beobliged to use such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants anddescendants, the word "Junior" can be used only by a son. Grandsons and other directmale descendants shall either:

(1) Add a middle name or the mother's surname; or(2) Add the Roman numerals II, III, and so on.

Art. 376. No person can change his name or surname without judicial authority.

Tolentino: Sufficient Cause Necessary.-- Examples of sufficient causes are: (1) when thename is ridiculous, or tainted with dishonor, or extremely difficult to write or pronounce; (2)when the right to a new name is a consequence of a change of status, such as when a natural childis acknowledged or legitimated; (3) when the change is necessary to avoid confusion; (4)having continuously used and been known since childhood by a Filipino name, unaware of hisalien parentage; (5) A sincere desire to adopt a Filipino name to erase signs of a former aliennationality w/c unduly hamper social and business life. (Republic v. Marcos, supra.)

The imposition in a will or donation of the condition that the beneficiary change hisname is not sufficient cause.

Effect of Change on Children.-- When a father changes his name, this will not affect the namesof his children. The children who are of age are independent of the father, and their names can be changed only upon their own petition. The names of the minor children, however, may bechanged on petition of the father, if the same justification exists w/ respect to them.

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For legal purposes, the true or official name of a person is that w/c is recorded in the civilregister.

BALANE CASES:

REPUBLIC V. AVILA [122 S 483] - F: Pvt. resps., who are brothers and sisters, prayed that their names be changed as follows: Tan Cheng Beng to Johnny Yap Tan; Tan Ay Kim to Jeanette Yap Tan;Tan Cheng Keng to Jimmy Yap Tan; and Tan Ay Gho to Jennifer Yap Tan. The petition was publishedonce a week for 3 consecutive weeks in a newspaper of gen. circ. in the city and province of Cotabatowhere the pvt. resps. reside. xxx It appears that pvt. resps. are the legitimate children of the sps. LimHeong Ho and Yap Kun, both Chinese. Their mother, Yap Kun, was already dead when this petition wasfiled. xxx The present names of the pvt. resps. are what appear in their certs. of birth, in the records of the Bureau of Immigration, their certs. of registration, and in their school records. The reasons adduced

by pvt. resps. for wanting the change of their names are as follows: (1) Having been born in the Phils.and having learned to love and adopt the traits and traditions of the Filipino people, they desire to changetheir Chinese names to Christian or Filipino names; (2) to avoid embarrassment and confusion in their social and business dealings, they having been known by their friends and acquaintances by the names

they wish to adopt; (3) in the case of pvt. resp Tan Ay Gho, to avoid ridicule, inasmuch as such name inMuslim dialect means "running nose." CFI-Cotabato granted the petition. Hence this appeal.

HELD: We find merit in the appeal taken by herein petitioner to seek a reversal of thequestioned order of the resp. court.

A change of name is a mere privilege and not a matter of right. It should not be abusednor allowed for trivial and flimsy reasons. To justify a change of name, there must exist a proper and reasonable cause or compelling reason.

The reasons given by the pvt. resps. do not impress us as sufficient and valid justificationfor the desired change of their names.

xxx The grant of change of name of resps. would not eliminate but enhance confusion asthey would be having not only 2 names but 3, including the names they are seeking. xxx Pvt.resps. do not only want to legalize their use of American names, by w/c they claim they areusually known, but also a new family name (Yap Tan) w/c includes that of their mother but w/cthey never used before. It becomes confusion worse compounded it is considered that the pvt.resps. are not using the family name of their father (Lim), but that of the first husband of their mother who was surnamed Tan.

xxx The supposed ugly meaning of the name of resp.Tan Ay Gho is not enough reasonto justify change of name. xxx The alleged offensive-sounding name, being a given name, waschosen for her, and not one imposed by law as in the case of a family name.

YASIN V. SHARI'A [241 S 606] - F: On 5/5/90, Hatima Yasin filed in the Shari'a District Court-Zamboanga City a "Petition to resume the use of maiden name." Such petition was denied on the groundthat petition was substantially a change of name and that compliance w/ the provisions of R 103 ROC on

change of name is necessary if the petition is to be granted.

ISSUE: W/n a petition for resumption of maiden name and surname is also a petition for changeof name.

HELD: The court rules in the negative. The true and real name of a person is that given to himand entered in the civil register. While it is true that under Art. 376 of the NCC, no person canchange his name or surname w/o judicial authority, nonetheless, the only name that may bechanged is the true and official name recorded in the Civil Register.

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Petitioner's registered name is Hatima Centi y Saul. In the instant petition, petitioner does not seek to change her registered maiden name but instead, prays that she be allowed toresume the use of her maiden name in view of the dissolution of her marriage to Hadji IdrisYasin, by virtue of a decree of divorce granted in accordance w/ Muslim Law.

Even under the NCC (w/c applies suppletorily to the Code of Muslim Personal Laws),

the use of the H's surname during the marriage, after annulment of the marriage and after thedeath of the H is permissive and not obligatory except in case of legal separation.

xxx When a woman marries a man, she need not apply and/or seek judicial authority touse her H's name by prefixing the word "Mrs." before her H's full name or by adding her H'ssurname to her maiden first name. The law grants her such right. Similarly, when the marriageties or vinculum no longer exists as in the case of death of the H or divorce, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert toher maiden name as the use of her former husband's name is optional and not obligatory for her.

Art. 377. Usurpation of a name and surname may be the object of an action fordamages and other relief.

Tolentino: The usurpation of name implies some injury to the interests of the owner of the name.

It consists in the possibility of confusion of identity, or the appearance of some family relations between the owner and the usurper.

Elements of Usurpation.-- (1) that there is an actual use of another's name by the defendant;(2) that the use is unauthorized; (3) and the use of another's name is to designate personality or identity of a person.

Art. 378. The unauthorized or unlawful use of another person's surname gives aright of action to the latter.

Tolentino: This article would seem to cover cases where one's name is used by another, but not

for the purpose of designating personality or identifying a person.

Art. 379. The employment of pen names or stage names is permitted, provided it isdone in good faith and there is no injury to third persons. Pen names and stage namescannot be usurped.

Tolentino: A pseudonym is a "conventional fictitious name freely chosen by a person to disguisehis personality." It designates a person in a particular activity, and his reputation and the valueof his work are reflected in such designation.

Bec. a pseudonym is intended only to be used in connection w/ a particular activity--literary, artistic, scientific or professional-- it should not be employed in any other sphere of activity. It can never be used in relations w/ the State.

When Entitled to Protection.-- A pen or stage name is protected only when it is well known asthe designation of a particular writer or artist, such that it can be considered as practicallyindicating his person in the field of activity where it is used.

Art. 380. Except as provided in the preceding article, no person shall use differentnames and surnames.

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Tolentino: It is the duty of a person in dealing w/ the govt and its agents, to use his true name.In private relations, however, this is not obligatory, provided there is no wrongful or unlawful purpose.

Alias Names in Business.-- The law permits the use of assumed or alias names for business

purposes, provided that such names are duly registered.

BALANE CASE:

LEGAMIA V. IAC [131 S 479] - F: Corazon Legamia lived w/ Emilio Reyes for 19 yrs.-- from11/8/55 to 9/26/74, when Emilio died. During their live-in arrangement they produced a boy. From thetime Corazon (C) and Emilio (E) lived together until the latter's death, C was known as Corazon L.Reyes; she styled herself as Mrs. Reyes; and E introduced her to friends as Mrs. Reyes. E was BranchClaim Manager, Naga Branch, of the Agri. Cr. Admin. when he died. On 10/29/74, or shortly after E'sdeath, C filed a letter claim in behalf of Michael (their son) w/ the Agr. Cr. Admin. for death benefits.The letter was signed "Corazon L. Reyes." For using the name Reyes although she was not married to E,Felicisima Reyes who was married to E filed a complaint w/c led to C's prosecution. She was convicted

by the trial court. The CA upheld the conviction.

ISSUE: W/n the petitioner violated the law (CA 142 re use of an alias) in the light of the factsabovestated.

HELD: No. In the case at bar, C had been living w/ E for almost 20 yrs. He introduced her tothe public as his wife and she assumed that role and his name w/o any sinister purpose or personal material gain in mind. She applied for benefits upon his death not for herself but for Michael who as a boy of tender years was under her guardianship. Surely, the lawmakers couldnot have meant to criminalize what C had done especially bec. some of them probably had their own Corazons.

XVIII. ABSENCE

Tolentino: Concept of Absence.-- Juridically, the absence referred to in the Code, is that special legal status of one who is not in his domicile, his whereabouts being unknown, and it isuncertain whether he is dead or alive. (Balane quotes Tolentino on this.)

Where the absentee disappeared under normal circumstances and w/o apparent danger,there is ordinary absence; but where the disappearance was under extraordinary circumstances,or with apparent danger, it is called qualified absence.

Balane (quoting Castan): Absence has legal consequences w/c vary according to the degree or stage of absence.Stages of Absence:

(1) Temporary or provisional absence w/c happens as soon as a person disappears from

his domicile and his whereabouts are unknown, leaving no administrator of his prop. (Articles381-383);

(2) Normal or declared absence w/c is one juridically declared after 2 yrs. since the lastnews was heard from him, or 5 yrs if he left an administrator (Articles 384-389);

(3) Definite or presumptive death w/c takes place when after the period provided by law,a person is presumed dead; the period varies according to circumstances. (Articles 390-396.)

(a) ordinary presumptive death(b) qualified presumptive death

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PROVISIONAL MEASURES IN CASE OF ABSENCE

Art. 381. When a person disappears from his domicile, his whereabouts beingunknown, and without leaving an agent to administer his property, the judge, at theinstance of an interested party, a relative, or a friend, may appoint a person to represent

him in all that may be necessary.This same rule shall be observed when under similar circumstances the power

conferred by the absentee has expired.

Balane: Requisites for Provisional Absence: (1) Absence for an appreciable period w/cdepends upon the circumstances; (2) Immediate necessity for his representation in some specificurgent matter; (3) Absentee left no agent or the agency has expired

Art. 382. The appointment referred to in the preceding article having been made,the judge shall take the necessary measures to safeguard the rights and interests of theabsentee and shall specify the powers, obligations and remuneration of his representatives,regulating them, according to the circumstances, by the rules concerning guardians.

Art. 383. In the appointment of a representative, the spouse present shall bepreferred when there is no legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competentperson may be appointed by the court.

Tolentino: Appointment Necessary.-- Unless the wife has been appointed an administratrix or trustee of the properties of her absent husband, she has no capacity to maintain an action torecover possession of such properties.

DECLARATION OF ABSENCE

Art. 384. Two years having elapsed without any news about the absentee or sincethe receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared.

Tolentino: Computation of Period.-- If there has been no news of or from the absentee sincehis disappearance, the period must be computed from the date of disappearance. But if there has been news from or about him, the period should be counted from the time referred to by thenews, or the time when the news was sent.

Balane: The declaration of absence is has for its sole purpose to enable the taking of necessary precautions for the administration of the prop. (of the absentee.) (quoting Jones v. Hortiguela, 64P 179.)

A general power of administration is granted w/c is broader than that granted for a mere provisional absence. Notice that in provisional absence, the power of administration is for aspecific matter.

BALANE CASE:

REYES V. ALEJANDRO [141 S 65] - F: In a petition filed on 10/25/69, Erlinda Reynoso prayedfor the declaration of the absence of her husband Roberto L. Reyes alleging that her H had been absent

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from their conjugal dwelling since 4/62 and since then had not been heard from and his whereaboutsunknown. The petition further alleged that her H left no will or any prop. in his name nor any debts.

After hearing, the court a quo dismissed the petition on the ground that since Roberto Reyes leftno prop there was no necessity to declare him judicially an absentee.

HELD: The need to have a person judicially declared an absentee is when he has properties w/c

have to be taken cared of or administered by a representative appointed by the Court (384) ; thespouse of the absentee is asking for separation of prop (191, NCC) or his wife is asking the courtthat the administration of all classes of prop. in the marriage be transferred to her (196, NCC.)The petition to declare the husband an absentee and the petition to place the management of theconjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings.

Art. 385. The following may ask for the declaration of absence:(1) The spouse present;(2) The heirs instituted in a will, who may present an authentic copy of the same;(3) The relatives who may succeed by the law of intestacy;

(4) Those who may have over the property of the absentee some right subordinatedto the condition of his death.

Art. 386. The judicial declaration of absence shall not take effect until six monthsafter its publication in a newspaper of general circulation.

Art. 387. An administrator of the absentee's property shall be appointed inaccordance with article 383.

Art. 388. The wife who is appointed as an administratrix of the husband's property,cannot alienate or encumber the husband's property or that of the conjugal partnership,without judicial authority.

Art. 389. The administration shall cease in any of the following cases:(1) When the absentee appears personally or by means of an agent;(2) When the death of the absentee is proved and his testate or intestate heirs

appear;(3) When a third person appears, showing by a proper document that he has

acquired the absentee's property by purchase or other title.In these cases the administrator shall cease in the performance of his office, and the

property shall be at the disposal of those who may have a right thereto.

PRESUMPTION OF DEATH

Tolentino: Judicial Declaration Not Necessary.-- The presumption of death is created by law,

and arises w/o any necessity of a judicial declaration. The presumption can be availed of in anyaction or proc.; but there can be no independent proceeding for the express purpose of securing a judicial declaration that a person is presumptively dead, except for purposes of re-marriageunder the Family Code.

Balane: Under the NCC, no action was allowed for the declaration of presumptive death bec. it becomes res judicata w/c is illogical when the person declared dead turns out to be alive. Butthis is no longer true under the FC w/c requires a declaration of presumptive death for purposesof remarriage. (see Art. 41.)

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Art. 390. After an absence of seven years, it being unknown whether or not theabsentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession

till after an absence of ten years. If he disappeared after the age of seventy-five years, anabsence of five years shall be sufficient in order that his succession may be opened.

Tolentino: For Re-Marriage of Spouse Present.-- Under the FC (41), if a spouse has beenabsent for 4 yrs and the spouse present has a well-founded belief that the spouse is already dead,the former can ask for the declaration of presumptive death of the latter, in a summary proceeding.

Balane: Q: When Does Presumptive Death Set In?A: It depends on the age of the person.In normal presumptive death (the absentee was 75 or below), 7 years is required for all

purposes except for succession, e.g., for insurance, suspensive condition, retirement benefits, etc.and 10 years for purposes of succession.

In qualified presumptive death (the absentee is over 75), one single period of 5 yrs. for all purposes. Notice 390 states that only 5 yrs. of absence is required in order that successionmay be opened. But what if succession is not involved? If only 5 yrs. is required in casesinvolving succession, w/ more reason should 5 yrs. only be required if succession is notinvolved.

Art. 391. The following shall be presumed dead for all purposes, including thedivision of the estate among the heirs;

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is

missing, who has not been heard of for four years since the loss of the vessel or aeroplane;(2) A person in the armed forces who has taken part in war, and has been missing

for four years;(3) A person who has been in danger of death under other circumstances and his

existence has not been known for four years.

Tolentino: Modification under the FC.-- For purposes of securing a decl of presumptive deathunder these circumstances, under the FC for purposes of remarriage of a spouse present, anabsence of 2 yrs of the absent spouse will be enough.

Presumptive Death of Missing Persons.-- The persons presumed dead under this article cannot be considered as merely absentees; they are more properly called missing persons. xxx [T]he presumptive date of death is fixed on the very day of the occurrence of the event from w/c thedeath is presumed; and if such date cannot be fixed, the court determines the middle of the periodin w/c the event could have happened.

Loss of Vessel or Aeroplane.-- These terms must be understood in their broad meanings.Vessels will include all watercraft, and aeroplanes will include all aircraft.

The loss of the vessel must be during a sea voyage w/c include not only voyages in theopen sea but also passage along the mouth or river, canals, etc. in the course of such voyage.However, trips w/c are only inland waters are not included.

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Missing in War.-- The term "war" is construed generally; it is not limited to war as understoodin international law, but includes all military operations or undertakings in armed fighting. The presumption in case of persons missing in war, applies not only to soldiers, but also to those whoare employed by or render services to the armed forces (such as nurses, doctors, etc.), those whorender voluntary service (such as guides and guerrillas), and those who follow or stay w/ the

armed forces (such as reporters, photographers, etc.) It is however, necessary that suchdisappearance be during military operations.

In Danger of Death.-- The death should be considered to have taken place on the day of thedanger. xxx If the danger continues for several days, xxx the more logical view seems to be thatthe period should be computed from the last day of such danger; in cases of expeditions or similar ventures of w/c nothing is heard after it has started, the date when it should have beencompleted, if favorably concluded, is to be taken into account.

BALANE CASE:

EASTERN SHIPPING V. LUCERO [124 S 425] - F: On 2/16/80, the petitioner co. received 3radio messages from Capt. Lucero on board M/V Eastern Minicon, the last of w/c, received at 9:50 P.M.

of that day, was a call for immediate assistance in view of the existing "danger;" "sea water was enteringthe hatch;" the vessel "was listing 50 to 60 degrees port," and they were "preparing to abandon the shipany time." After this message, nothing more has been heard from the vessel or its crew until the presenttime.

On 7/16/80, Mrs. Lucero filed a complaint w/ the National Seamen Board for payment of her accrued monthly allotment w/c the Co. had stopped since 3/80 and for continued payment of saidallotments until M/V Minicon shall have returned to the port of Mla.

On 5/19/81, the Board rendered judgement in favor of Mrs. L and held that the presumption of death could not be applied bec. the 4-yr period [Art. 391(1)] had not yet expired. On appeal, the NLRCaffirmed said decision.

HELD: We are unable to agree w/ the reasoning of the resp. NLRC.There is enough evidence to show the circumstances attending the loss and disappearance

of the M/V Eastern Minicon and its crew. The foregoing facts, quite logically, are sufficient tolead us to a moral certainty that the vessel had sunk and that the persons aboard had perished w/it. Upon this premise, the rule on presumption of death under Art. 391(1) must yield to the ruleof preponderance of evidence. Where there are facts, known or knowable, from w/c a rationalconclusion can be made, the presumption does not step in, and the rule of preponderance of evidence controls. (Joaquin v. Navarro, 93 P 257.)

Art. 392. If the absentee appears or without appearing his existence is proved, heshall recover his property in the condition in which it may be found, and the price of anyproperty that may have been alienated or the property acquired therewith; but he cannotclaim either fruits or rents.

Tolentino: The rights of the possessors of the absentee's prop. are dependent upon the presumeddeath of the latter; hence, if he reappears, those rights cease. For this reason, the possession isconditional and cannot be the basis of prescription. Neither will the action of the absentee torecover his prop. prescribe.

EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE

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Art. 393. Whoever claims a right pertaining to a person whose existence is notrecognized must prove that he was living at the time his existence was necessary in order toacquire said right.

Tolentino: For the acquisition of rights by an absentee, life is not presumed before the date of

presumptive death.

Art. 394. Without prejudice to the provision of the preceding article, upon theopening of a succession to which an absentee is called, his share shall accrue to his co-heirs,unless he has heirs, assigns, or a representative. They shall all, as the case may be, make aninventory of the property.

Art. 395. The provisions of the preceding article are understood to be withoutprejudice to the action or petition for inheritance or other rights which are vested in theabsentee, his representative or successors in interest. These rights shall not be extinguishedsave by lapse of time fixed for prescription. In the record that is made in the Registry of thereal estate which accrues to the co-heirs, the circumstance of its being subject to theprovisions of this article shall be stated.

Art. 396. Those who may have entered upon the inheritance shall appropriate thefruits received in good faith so long as the absentee does not appear, or while hisrepresentatives or successors in interest do not bring the proper actions.

Art. 43. If there is doubt, as between two or more persons who are called to succeedeach other, as to which of them died first, whoever alleges the death of one prior to theother, shall prove the same; in the absence of proof, it is presumed that they died at thesame time and there shall be no transmission of rights from one to the other.

Rule 107, Rules of Court - ABSENTEES

Sec. 1. Appointment of representative. - When a person disappears from his domicile, hiswhereabouts being unknown, and without having left an agent to administer his property, or thepower conferred upon the agent has expired, any interested party, relative or friend, may petitionthe Court of First Instance of the place where the absentee resided before his disappearance, for theappointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile Domestic Relations Court.

Sec. 2. Declaration of absence; who may petition. - After the lapse of two (2) years from hisdisappearance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property,the declaration of his absence and appointment of a trustee or administrator may be applied for byany of the following:

(a) The spouse present;(b) The heirs instituted in a will, who may present an authentic copy of the same;

(c) The relatives who would succeed by the law of intestacy; and(d) Those who have over the property of the absentee some right subordinated to the

condition of his death.

Sec. 3. Contents of petition. - The petition for the appointment of a representative, or forthe declaration of absence and the appointment of a trustee or an administrator, must show thefollowing:

(a) The jurisdictional facts;(b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be

presented, and of the relatives who would succeed by the law of intestacy,

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(c) The names and residences of creditors and others who may have any adverse interestover the property of the absentee;

(d) The probable value, location and character of the property belonging to the absentee.

Sec. 4. Time of hearing; notice and publication thereof. - When a petition for the ap-pointment of a representative, or for the declaration of absence and the appointment of a trustee or

administrator, is filed, the court shall fix a date and place for the hearing thereof where allconcerned may appear to contest the petition.

Copies of the notice of the time and place fixed for the hearing shall be served upon theknown heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days beforethe day of the hearing, and shall be published once a week for three (3) consecutive weeks prior tothe time designated for the hearing, in a newspaper of general circulation in the province or citywhere the absentee resides, as the court shall deem best.

Sec. 5. Opposition. - Anyone appearing to contest the petition shall state in writing hisgrounds therefor, and serve a copy thereof on the petitioner and other interested parties on orbefore the date designated for the hearing.

Sec. 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the courtshall issue an order granting the same and appointing the representative, trustee or administratorfor the absentee. The judge shall take the necessary measures to safeguard the rights and interestsof the absentee and shall specify the powers, obligations and remuneration of his representative,trustee or administrator, regulating them by the rules concerning guardians.

In case of declaration of absence, the same shall not take effect until six (6) months after itspublication in a newspaper of general circulation designated by the court and in the OfficialGazette.

Sec. 7. Who may be appointed. - In the appointment of a representative, the spouse presentshall be preferred when there is no legal separation. If the absentee left no spouse, or if the spousepresent is a minor or otherwise incompetent, any competent person may be appointed by the court.

In case of declaration of absence, the trustee or administrator of the absentee's propertyshall be appointed in accordance with the preceding paragraph.

Sec. 8. Termination of administration. - The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases:

(a) When the absentee appears personally or by means of an agent;(b) When the death of the absentee is proved and his testate or intestate heirs appear;(c) When a third person appears, showing by a proper document that he has acquired the

absentee's property by purchase or other title.In these cases the trustee or administrator shall cease in the performance of his office, and

the property shall be placed at the disposal of those who may have a right thereto.

XIX. FUNERALS

Tolentino: Juridical Nature of Corpse.-- The corpse cannot be the subject of rights, bec. juridical personality is extinguished by death. Evidently, it is an object or a thing, but it is not prop.; it is not susceptible of appropriation.

Purposes of Legal Protection: (1) to protect the feelings of those related to the deceased; (2)to avoid dangers to the health of the living; and (3) to allow scientific investigation and study.

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Right to the Corpse.-- The corpse is outside the commerce of man. A contract for valuableconsideration disposing of the corpse, except when expressly permitted by law, would be void ascontrary to morals.

xxx There is, however, a certain right to the possession of the corpse, for the purpose of decent burial, and for the exclusion of intrusion by third persons who have no legitimate interest

in it.Any person charged by law w/ the duty of burying the body of a deceased person is entitled

to the custody of such body for the purpose of burying it, except when an inquest is required by lawfor the purpose of determining the cause of death; and, in case of death due to or accompanied by adangerous communicable disease, such body shall until buried remain in the custody of the localboard of health or local health officer, or if there be no such, then in the custody of the municipalcouncil. (Sec. 1104, Revised Admin. Code.)

Art. 305. The duty and the right to make arrangements for the funeral of a relativeshall be in accordance with the order established for support, under Art. 199 of the FamilyCode. In case of descendants of the same degree, or of brothers and sisters, the oldest shallbe preferred. In case of ascendants, the paternal shall have a better right.

Art. 199. Whenever two or more persons are obliged to give support, the liabilityshall devolve upon the following persons in the order herein provided:

(1) The spouse;(2) The descendants in the nearest degree;(3) The ascendants in the nearest degree;(4) The brothers and sisters. (Family Code.)

Tolentino: Right to make funeral arrangements.-- If there are no persons who are bound tosupport the deceased, or if there are but they are w/o means to defray the funeral expenses, theduty of burial shall devolve upon the municipal authorities.

Same; Subject to waiver.-- The persons who are preferred in the right may waive this right

expressly or impliedly, in w/c case the right and duty immediately descend to the person next inthe order prescribed by law.

Extent of Right.-- Under our law, it seems that the person entitled to the custody of the corpsecannot exclude the friends and other relatives of the deceased; such exclusion, w/o just cause,would be an abuse of right prohibited by Art. 19, NCC, or an act contrary to good customs under Art. 21. The members of the family of the deceased, of course, cannot be excluded, bec. theywould have an inherent right to witness the interment.

BALANE CASE:

Eugenio v. Velez [185 S 425 (1990)] -- F: Unaware of the death on 8/28/88 of Vitaliana Vargas

(VV), her full blood brothers and sisters (Vargases) filed on 9/27/88, a petition for habeas corpus allegingthat VV was forcibly taken from her residence and confined by herein petitioner in his palatial residence.Resp. court issued the writ but the writ was returned unsatisfied. Petitioner (Pet.) refused to surrender the

body of VV to resp. sheriff on the ground that a corpse cannot be the subject of habeas corpus (hc) proceedings; besides, according to him, he had already obtained a burial permit from the Undersec. of DOH, authorizing the burial at his palace quadrangle. Pet. also alleged that VV died of heart failure dueto toxemia of pregnancy. As her common law husband, pet. claimed legal custody of her body. Pet. (asresp. in the SP) filed an urgent motion to dismiss the petition therein. Bef. resolving the motion, theVargases were granted leave to amend their petition. Claiming to have knowledge of the death of VVonly after the filing of the petition for hc, pvt. resps. alleged that pet., who is not in any way related to

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VV was wrongfully interfering w/ their duty to bury her (invoking Arts. 305, 308, NCC.) On the other hand, petitioner claims, he is the spouse contemplated under Art. 294, NCC, the term spouse used thereinnot being preceded by any qualification. The RTC ruled for the respondents in this case.

HELD: We hold that the provisions of the NCC unless expressly providing to the contrary as inArt. 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Philippine Lawdoes not recognize common law marriage. Petitioner vis-à-vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry her in her lifetime (beinghimself legally married to another woman.)

Custody of the dead body of Vitaliana was correctly awarded to her surviving brothersand sisters. Sec. 1103 (b) of the Rev. Admin. Code provides:

"If the deceased was an unmarried man or woman, or a child, and left any kin, the duty of burialshall devolve upon the nearest of kin of the deceased, if they be adults and within the Phils. and in the

possession of sufficient means to defray the necessary expenses."

Art. 306. Every funeral shall be in keeping with the social position of the deceased.

Tolentino: This article does not provide for a sanction for its enforcement. However, thesanctions may be found in other provisions of the law.

Art. 307. The funeral shall be in accordance with the expressed wishes of thedeceased. In the absence of such expression, his religious beliefs or affiliation shalldetermine the funeral rites. In case of doubt, the form of the funeral shall be decided uponby the person obliged to make arrangements for the same, after consulting with the othermembers of the family.

Art. 308. No human remains shall be retained, interred, disposed of or exhumedwithout the consent of the persons mentioned in Art. 199 of the Family Code and 305 (of the Civil Code.)

Tolentino: Exhumation of Corpse For Evidential Purposes.-- Although the present art. prohibits exhumation w/o the consent of the persons obliged to support the deceased in life, theright of such persons must yield to public interests when the exhumation appears to be absolutelyessential to the administration of justice such as where there is no other way to prove a materialfact except by exhumation of a body w/c has been interred.

Disposition of Corpse by Deceased.-- Although a person cannot dispose of his corpse by actinter vivos or mortis causa as prop., he may provide the manner in w/c it shall be disposed of bythose called upon to do so.

RA 349 recognizes the validity of an authorization given by a person to use parts of hiscorpse for medical, surgical, and scientific purposes.

Corpses w/c are to be buried at public expense may also be used for scientific purposes,under certain conditions.

Performance of Autopsies.-- An autopsy may either be private or official. If it is private, itcannot be performed w/o the consent of the persons having a right to the corpse. On the other hand, in the higher interests of the State, official autopsies may be performed regardless of thewishes of the persons entitled to the corpse.

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Art. 309. Any person who shows disrespect to the dead, or wrongfully interfereswith a funeral, shall be liable to the family of the deceased for damages, material andmoral.

Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of

the funeral expenses, and shall be chargeable to the conjugal partnership property, if thedeceased is one of the spouses.

XX. CIVIL REGISTER

Art. 407. Acts, events and judicial decrees concerning the civil status of personsshall be recorded in the civil register.

Balane: Correlate Art. 407 w/ Art. 7, PD 603.

Sec. 7. Non-disclosure of Birth Records. - The records of a person's birth shall be kept

strictly confidential and no information relating thereto shall be issued except on the request of anyof the following:

(1) The person himself, or any person authorized by him;(2) His spouse, his parent or parents, his direct descendants, or the guardian or institution

legally-in-charge of him if he is a minor;(3) The court or proper public official whenever absolutely necessary in administrative,

judicial or other official proceedings to determine the identity of the child's parents or othercircumstances surrounding his birth; and

(4) In case of the person's death, the nearest of kin.Any person violating the prohibition shall suffer the penalty of imprisonment of at least two

months or a fine in an amount not exceeding five hundred pesos, or both, in the discretion of thecourt. (P.D. 603, The Child and Youth Welfare Code.)

Art. 408. The following shall be entered in the civil register:(1) Births;(2) marriages;(3) deaths;(4) legal separations;(5) annulments of marriages;(6) judgments declaring marriages void from the beginning;(7) legitimations;(8) adoptions;(9) acknowledgements of natural children;(10) naturalization;

(11) loss or(12) recovery of citizenship;(13) civil interdiction;(14) judicial determination of filiation;(15) voluntary emancipation of a minor; and(16) change of name.

Art. 409. In cases of legal separation, adoption, naturalization and other judicialorders mentioned in the preceding article, it shall be the duty of the clerk of the court

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which issued the decree to ascertain whether the same has been registered, and if this hasnot been done, to send a copy of said decree to the civil registry of the city or municipalitywhere the court is functioning.

Art. 410. The books making up the civil register and all documents relating thereto

shall be considered public documents and shall be prima facie evidence of the facts thereincontained.

BALANE CASE:

Sermonia v. CA [233 S 155 (1994)] -- F: In an info. filed on 5/26/92, petitioner Jose Sermonia wascharged w/ bigamy before RTC-Pasig for contracting marriage w/ Ma. Lourdes Unson on 2/15/75 whilehis prior marriage w/ Virginia Nieverra remained valid and subsisting. Pet. moved to quash the info. onthe ground that his crim. liab. for bigamy has been extinguished by prescription. His motion was denied.MFR was likewise denied. Pet. challenged the above orders bef. the CA through a petition for certiorariand prohibition. His petition was dismissed for lack of merit.

In this course, pet. contends that his crim. liab. for bigamy has been obliterated by prescription.He avers that since the 2nd marriage was duly registered w/ the Office of the Civil Registrar in 1975,

such fact of registration makes it a matter of public record and thus constitutes notice to the whole world.The offended party is considered to have had constructive notice of the 2nd marriage as of 1975; hence,the corresponding info. for bigamy should have been filed on or before 1990 and not only in 1992.

HELD: (1) The rule on constructive notice cannot apply in the crime of bigamy notwithstandingthe possibility of its being more favorable to the accused. As the CA succinctly explains--

xxx [T]he principle of constructive notice should not be applied in regard to the crime of bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into bythe offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriageis generally entered into in a place where the offender is not known to be still a married person, in order to conceal his legal impediment to contract another marriage.

xxx [T]he criminal cases cited by the petitioner wherein constructive notice was appliedinvolved land or prop. disputes and certainly, marriage is not prop.

The non-application to the crime of bigamy of the prin. of constructive notice is not contrary to

the policy that penal laws should be construed liberally in favor of the accused. To compute the prescriptive period for the offense of bigamy from registration thereof would amount to almost absolvingoffenders thereof for liab. therefor. xxx

(2) The rule on constructive notice will make de rigueur the routinary inspection or verification of the marriages listed in the National Census Office and in various local civilregistries all over the country to make certain that no subsequent marriage has been contractedw/o the knowledge of the legitimate spouse.

(3) More importantly, while Sec. 52 of PD 1529 (Prop. Reg. Dec.) provides for constructive notice to all persons of every conveyance, mortgage, lease, lien, etc. affectingregistered land filed or entered in the office of the Register of Deeds for the province or citywhere the land to w/c it relates lies from the time of such registration, there is no counterpart provision either in Act 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413, NCC, w/cleads to the conclusion that there is no legal basis for applying the constructive notice rule to

documents registered in the Civil Register.

Art. 411. Every civil registrar shall be civilly responsible for any unauthorizedalteration made in any civil register, to any person suffering damage thereby. However, thecivil registrar may exempt himself from such liability if he proves that he has taken everyreasonable precaution to prevent the unlawful alteration.

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Art. 412. No entry in a civil register shall be changed or corrected, without judicialorder.

Tolentino: Changes or corrections in entries in the Civil Registry may be sought by 2 different procedures: (1) summary procedure for the correction of clerical errors, and (2) adversary,

litigious, or contentious procedure for changes of a substantial character.Corrections to be made in the civil register may be either clerical or substantial. The

proceeding under Art. 412 and Rule 108 of the Rules of Court may either be summary or adversary in nature. Even substantial or material errors in the civil register may be corrected provided the appropriate remedy is availed of.

The Rules of Court provides:

RULE 108 - CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

Sec. 1, Who may file petition. - Any person interested in any act, event, order or decreeconcerning the civil status of persons which has been recorded in the civil register, may file averified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located.

Sec. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, thefollowing entries in the civil register may be cancelled or corrected;

(a) births;(b) marriage;(c) deaths;(d) legal separations;(e) judgments of annulments of marriage;(f) judgments declaring marriages void from the beginning;(g) legitimations;(h) adoptions;(i) acknowledgments of natural children;(j) naturalization;(k) election, loss or recovery of citizenship;

(l) civil interdiction;(m) judicial determination of filiation;(n) voluntary emancipation of a minor, and(o) changes of name.

Sec. 3. Parties. - When cancellation or correction of an entry in the civil register is sought,the civil registrar and all persons who have or claim any interest which would be affected therebyshall be made parties to the proceeding.

Sec. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order,fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given tothe persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

Sec. 5. Opposition. - The civil registrar and any person having or claiming any interestunder the entry whose cancellation or correction is sought may, within fifteen (15) days from noticeof the petition, or from the last date of publication of such notice, file his opposition thereto.

Sec. 6. Expediting proceedings. - The court in which the proceeding is brought may makeorders expediting the proceedings, and may also grant preliminary injunction for the preservationof the rights of the parties pending such proceedings.

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Sec. 7. Order. - After hearing, the court may either dismiss the petition or issue an ordergranting the cancellation or correction prayed for. In either case, a certified copy of the judgmentshall be served upon the civil registrar concerned who shall annotate the same in his record.

Balane: Recapitulate.-- An error in an entry in the Civil Register can only be corrected by court

order. The proper action to file depends on whether the error is merely clerical or substantive. If merely clerical, summary proceeding for correction is enough; if substantive, adversary proceeding is required. BALANE CASES:

Barreto v. Civil Registrar of Manila [74 S 257 (1976)] -- F: According to the Civil Register of Mla, a female child named Rosario Barreto was born on 6/29/44 to spouses Faustina Barreto and KingLian, both natives of Amoy, China. On the other hand, according the record of baptisms of the

Parroquia de Chinos in Mla., a child born on 6/29/44 to the Barreto spouses was baptized w/ the name of Domingo Sy Barreto. xxx In 1967, Domingo B. requested the local civil registrar of Mla. to issue acertified copy of his birth record w/c he needed in connection w/ his application for a marriage license.He discovered that his name in the record of birth is Rosario, a female. Bec. of that discrepancy, he was

not able to secure a license. Thereafter, he filed a petition in the CFI-Mla. for the correction of thealleged entries in his birth record regarding his name and sex. Initially, his petition was dismissed. Butfinally, his amended petition was granted on the ground that the error sought to be corrected was "merelytypographical or clerical error, and not controversial." The Republic appealed through the Sol-Gen.

ISSUE: W/n the supposed erroneous entry as to the sex of Rosario B., as indicated in the birthrecord, is a clerical error that may be changed by means of a petition for correction filed by one Domingo B. who claims to be the same person as Rosario B.

HELD: We hold that the petition is not warranted bec. under the facts of this case, the allegederror is not clerical in nature. If the name in the record of birth were Domingo B. and his sexwas indicated therein as female, it might be argued that the error would be clerical. But that isnot the fact in the case. The situation is more complicated. A person named Domingo B. claimshe is Rosario B. and that the word "female" in the latter's birth record is a mistake.

It is settled that the summary proc. for correction of entries in the civil registry under Art.412, NCC and R 108, ROC is confined to "innocuous or clerical errors, such as misspellings andthe like, errors that are visible to the eyes or obvious to the understanding" or corrections that arenot controversial and are supported by indubitable evidence.

A clerical error is one made by a clerk in transcribing or otherwise, and, of course, must be apparent on the face of the record, and capable of being corrected by reference to the recordonly.

The alleged error in this case cannot be determined by reference to the record. There is aneed to determine w/n Rosario B. and Domingo B. are one and the same person and to ascertainwhy Domingo was registered in the record of birth as Rosario.

Republic v. Valencia [141 S 462 (1986)] -- F: Resp. Leonor Valencia, for and in behalf of her minor children, Bernardo Go and Jessica Go filed w/ the CFI-Cebu a petition for the cancellation and/or correction of entries of birth of her 2 minor children in the Civil Registry of Cebu. The petition seeks tochange the nationality or citizenship of Bernardo Go and Jessica Go from "Chinese" to "Filipino" andtheir status from "Legitimate" to "Illegitimate," and changing also the status of the mother from"married" to "single." The Local Civil Registrar of Cebu filed a motion to dismiss on the ground that thecorrections sought are not merely clerical but substantial. The lower court denied the motion to dismiss.From the decision of the lower court, oppositor-appellant Republic appealed.

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HELD: [I]f the subject matter of a petition is not for the correction of clerical errors of aharmless and innocuous nature, but one involving nationality or citizenship, w/c is indisputablysubstantial as well as controversial, affirmative relief cannot be granted in a proceeding summaryin nature. However, it is also true that a right in law may be enforced and a wrong may beremedied as long as the appropriate remedy is used. This court adheres to the principle that even

substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.

xxxWhat is meant by appropriate adversary proceeding ? Black's Law Dictionary defines

"adversary proceeding" as follows:"One having opposing parties; contested, as distinguished from an ex parte application, one of

w/c the party seeking relief has given legal warning to the other party, and afforded the latter anopportunity to contest it. xxx"

xxxProvided that the trial court has conducted proceedings where all relevant facts have been

fully and properly developed, where opposing counsel have been given opportunity to demolishthe opposite party's case, and where the evidence has been thoroughly weighed and considered,the suit or proceeding is "appropriate."

xxx[T]he persons who must be made parties to a proceeding concerning the cancellation

or correction of an entry in the civil register are-- (1) the civil registrar, and (2) all personswho have or claim any interest w/c would be affected thereby. Upon the filing of the petition, it becomes the duty of the court to-- (1) issue an order fixing the time and place for the hearing of the petition, and (2) cause the order for hearing to be published once a wk for 3 consecutiveweeks in a newspaper of gen. circ. in the province. The following are likewise entitled to opposethe petition-- (1) the civil registrar, and (2) any person having or claiming any interest under theentry whose cancellation or correction is sought.

If all these procedural requirements have been followed, a petition for correction and/ or cancellation of entries in the record of birth even if filed and conducted under R 108, ROC canno longer be described as "summary." There can be no doubt that when an opposition to the

petition is filed either by the Civil Registrar or any person having or claiming any interest in theinterest in the entries sought to be cancelled and/ or corrected and the opposition is actively prosecuted, the proceedings thereon become adversary proceedings.

In this case, the court took note of the fact that all the procedural requirements have beenfollowed and hence the recorded proceedings that actually took place could very well be regardedas that proper suit or appropriate action.

xxx In the instant case, a pet. for cancellation and/or correction of entries of birth of BernardoGo and Jessica Go in the Civ. Reg.- Cebu City was filed by resp. L. Valencia on 1/27/70, and pursuant tothe order of the trial court dated 2/4/70, the said pet. was published once a wk for 3 consecutive wks. inthe Cebu Advocate, a newspaper of gen. circ. in the City of Cebu. Notice thereof was duly served on theSol-Gen., the Local Civ. Registrar and Go Eng. The order likewise set the case for hearing and directedthe local civ. registrar and the other resps. or any person claiming any interest under the entries whosecorrections were sought, to file their opposition to the said pet. An opposition to the pet. wasconsequently filed by the Rep. on 2/26/70. Thereafter, a full blown trial followed w/ resp. L. Valenciatestifying and presenting her documentary evi. in support of her pet. The Rep. on the other hand, cross-examined resp. L.V.

Republic v. Flojo [152 S 550] -- F: It appears that herein pvt resp. Inocencio P. Carag filed averified pet. w/ CFI-Cagayan to correct an entry in his register of birth wherein he was erroneouslyregistered as a "Chinese" instead of a Filipino citizen. Named resp. was the Local Registrar of Aparri,Cagayan. After due notice to the Sol-Gen and publ. of the notice of hrng., dated 8/22/78, in the Cagayan

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Weekly Journal, the parties were heard. At the hrng., it was established that the petitioner herein, I.Carag, was born in Aparri, Cagayan on 3/15/47, to sps. Vicente Carag Tan, a natural child of EugeniaBaquiran who is a Filipino citizen, and Anastacia Pe. Accordingly, the resp. Judge found, and so ruledthat I. Carag is a Filipino citizen so that the necessary correction shld be made in his record of birth.

The Republic now questions the order on the ground that it is "contrary to the well-settleddoctrine that only mistakes in the entries in the Civ. Reg. w/c can be corrected under Art. 412 and R 108,

ROC are those that are merely clerical in nature and not those w/c affect the civil status or citizenship of the person involved."

HELD: The contention is w/o merit. While the Court has, indeed previously ruled that changesor corrections authorized under Art. 412, w/c envisions a summary proc., relate only to harmlessand innocuous alterations, such as misspellings or errors that are visible to the eyes or obvious tothe understanding and that changes in the citizenship of a person or his civil status are substantialas well as controversial, w/c can only be established in appropriate adversary proc., the rule has been relaxed in the case of Rep. v. Valencia.

xxxIn the instant case, there is no doubt that the proc. conducted in the lower court was an

adversary proc. and "appropriate" in that "all relevant facts have been fully and properly

developed, where the opposing counsel have been given the opportunity to demolish the opposite party's case, and where the evidence has been thoroughly weighed and considered." Thequestioned order states in part:

xxx After the required publ. of the order of Notice of hrng. dated 8/22/78 in the Cagayan ValleyWeekly Journal, has been complied w/ and notice to the Sol-Gen, petitioner adduced evidence on10/17/78. No written opposition was interposed by resp. but at the hrng. , Asst. Prov. Fiscal Gonzalesappeared for and in behalf of the Sol-Gen.

Republic v. Bautista [155 S 1] -- F: In her verified pet. filed before the lower court, pvt. resp.Imelda Mangabat Sorensen sought to correct and change the word "American" into the word "Danish" inthe birth certificate of her minor son, Raymund M. Sorensen to reflect the true nationality of Bo HuageSorensen, her husband and the father of said minor child. The Rep. opposed the pet. and moved for thedismissal on the ground that a correction of entry in the Civ. Reg. is allowed only when the same refers tomere clerical errors or mistakes, but not to substantial changes affecting the civil status, nationality or citizenship of the person concerned. The court a quo rendered in favor of petitioner (pvt. resp. herein.)Hence, this pet. by the Rep.

HELD: We are constrained to deny the instant pet. for review. The issue now bef. us has beenresolved in the case of Rep. v . Valencia wherein the court held that the proceedings under Art.412 and Rule 108, ROC may either be summary or adversary in nature. If the correction soughtto be made in the civ. reg. is clerical, then the procedure to be adopted is summary. If therectification affects the civil status, citizenship or nationality of a party, it is deemed substantial,and the procedure to be adopted is adversary.

xxx

In Rep. v. Valencia, we postulated that the appropriate remedy may well be a pet. filed by way of SP for the cancellation and/or correction of substantial entries in the civ. reg. w/ therequisite parties, notices, publications and the proceedings to be taken thereafter pursuant toSecs. 3, 4 and 5 of R108 bec. then the proc. will be adversary in character.

In the present case, the records show that the Pasay City Local Civ. Reg. and the Sol-Gen. were made parties to the pet. The proper notice was published once a wk for 3 consecutivewks. in the Rizal Weekly Bulletin, a newspaper of gen. circ. The Rep. appeared thru a trial atty.

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of the Office of the Sol-Gen. who was present and did not object to the presentation of evidence,xxx.

Republic v. Carriaga [159 S 12] -- F: Pvt. resp., Antonio Tan Lim, filed w/ the CFI-Cotabato a pet. for the correction of entries in the birth certificates of his children as follows:

"(1) xxx Frederick Sespene-Lim: The father's nationality shld be changed from Chinese to Filipino. The father's religion shld be changed from Catholic to Islam. The father's race should bebrown not yellow. The date of marriage of the parents should be 4/28/57 and not 2/1/58.

(2) xxx Patrick Sespene-Lim: The name Patrick shld be spelled Patrick Sespene-Lim. The dateof marriage of child's parents is 4/28/57 , not 2/1/58.

(3) xxx Janebelle Sespene-Lim: The name looks tampered, hence, it shld be ordered writtenclearly as Janebelle.

(4) xxx Antonio Sespene-Lim: The name of the child's mother is wrongly written Leyte. Itshld. be Letty."

The Rep. filed an opposition w/c was not acted upon positively. Resp. court granted the pet.Hence the petitioner filed this petition before us raising the sole issue of w/n the supposed erroneousentries in the birth certs. are merely clerical errors that can be changed or altered by means of a petitionfor correction of entry under R 108, ROC.

HELD: We reiterate our ruling in Rep. v. Valencia.xxx

In the case at bar, not only have the procedural requirements been complied w/ but a trialwas duly conducted wherein the pvt. resp. was given the chance to present his evidence while thefiscal was likewise given every opportunity to present his opposition. The safeguards in Rep. v.Valencia were followed.

True, the City Fiscal decided not to submit any evidence in opposition to the avermentsin the petition, but the pvt. resps submitted satisfactory evidence to prove his case.

Republic v. CFI [161 S 681] -- F: In a pet. filed on 5/15/71, w/ resp. CFI-Camarines Sur, the pvt.resp. Reynaldo C. Neola sought the correction of the entries appearing in the original cert. of birth of Reynaldo Balance Neola, Jr., in the records of the Local Civ. Reg. of Naga City. Specifically, the pvt.resp., a policeman, prayed for the striking out from the records of the following: (a) all info. referring tohim as the father of Reynaldo Balance Neola, Jr.; (b) the surname "Neola, Jr., " and (c) the child islegitimate and his parents are married. On 5/26/72, the City Fiscal, for the Sol-Gen., filed an oppositionand moved for the dismissal of the pet. on the ground that the rectification sought was not on mereclerical errors. He argued that this correction must be obtained in an appropriate adversary proc. Theresp. court granted the petition. Hence, this petition by the Rep.

HELD: We affirm the trial court's decision.xxx (The court reiterated the ruling in Rep. v. Valencia.)

In the instant case, we hold that an appropriate adversary proc. has taken place. xxxThe controverted order dated 3/31/73, by itself, indicates sufficient compliance w/ the

requirements of an appropriate adversary proc. The publ. requirement has been complied w/. Inthe hrng., the pvt. resp. presented his evidence. Opposition by the petitioner thereto was received by the court. And from this proc., it was conclusively established that no marriage bet. pvt. resp.and Dolores D. Balance, mother of the child, took place on 1/7/69; that the pvt. resp. hardlyknew Dolores and never had any extramarital relations w/ her; and that he is very much a marriedman and his wife is still living. The record of the case does not show any rebuttal of theevidence of the pvt. resp.

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Zapanta v. Civil Registrar [237 S 25] -- F: The pet. alleges that petitioner Gliceria S. Zapanta is thewidow of the late Florencio B. Zapanta; xxx that said deceased on 8/5/65, was admitted and confined atthe San Pedro Hospital, Davao City, and met his untimely demise on 8/11/65; that after traditional churchceremonies at the Sta. Ana Church, the remains of the deceased was entombed at the mun. cemetery of Davao City on 8/12/65; that when petitioner requested the Local Civ. Reg. of Davao City a certified truecopy of the death cert. of her late husband, she discovered to her dismay and surprise, that the name

indicated in said death cert. was "Flaviano Castro Zapanta," albeit the date of death and all other circumstances and information reflected therein clearly and conclusively revealed that the person referredto therein was no other than her late husband. Hence, petitioner prays that, after due notice and hrng., anorder be issued directing the Local Civ. Reg. to correct the death cert. of her deceased husband bychanging his name from "Flaviano Castro Zapanta" to "Florencio B. Zapanta." The court a quodismissed the pet. reasoning that the correction of the name "Flaviano Castro Z." to "Florencio B. Z," wasnot merely clerical but substantial in nature and that it thereby did not have the power to grant the relief

prayed for.

HELD: The trial court committed reversible error.xxx (The court reiterated the ruling in Rep. v. Valencia.)

xxx The records show that the publ. requirement has already been complied w/. The

next step would thus be for the court a quo to consider the pet. before it to be, in substance, anadversary proc. and to allow petitioner and all adverse and interested parties their day in court.

Art. 413. All other matters pertaining to the registration of civil status shall begoverned by special laws.

(See Act No. 3613, as amended)

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