CIVIL LAW REVIEW

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Theories on Personal Law:1. Domiciliary theory - the personal laws of a person are determined by his domicile2. Nationality theory - the nationality or citizenship determines the personal laws of the individual Under Article 15, the Philippines follows the nationality theory. Family rights and duties, status and legal capacity of Filipinos are governed by Philippine law. General Rule: Under Article 26 of the Family Code, all marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized and valid there as such, is also valid in the Philippines. Exception: If the marriage is void under Philippine law, then the marriage is void even if it is valid in the country where the marriage was solemnized .Exception to the exception:1. Article 35, 2, Family Code

Art. 35. The following marriages shall be void from the beginning: (2)Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

2. Article 35, 3, Family Code

Art. 35. The following marriages shall be void from the beginning: (3) Those solemnized without license, except those covered the preceding Chapter;

Even if the foreign marriage did not comply with either s 2 and 3 of Article 35, Philippine law will recognize the marriage as valid as long as it is valid under foreign law.

Art. 16, 1. Real property as well as personal property is subject to the law of the country where it is stipulated.

Lex situs or lex rei sitae governs real or personal property (property is subject to the laws of the country in which it is located). In Tayag vs. Benguet consolidated, the SC said that Philippine law shall govern in cases involving shares of stock of a Philippine corporation even if the owner is in the US.

Art. 16, 2. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

This is merely an extension of the nationality theory in Article 15. The national law of the decedent regardless of the location of the property shall govern. Thus, the national law of the decedent shall determine who will succeed. In Miciano vs. Brimo, the SC said that the will of a foreigner containing the condition that the law of the Philippines should govern regarding the distribution of the properties is invalid. In Aznar vs. Garcia, what was involved was the renvoi doctrine. In this case, the decedent was a citizen of California who resided in the Philippine. The problem was that under Philippine law, the national law of the decedent shall govern. On the other hand, under California law, the law of the state where the decedent has his domicile shall govern. The SC accepted the referral by California law and applied Philippine law (single renvoi). Problem: What if the decedent is a Filipino domiciled in a foreign country which follows the domiciliary theory?According to Professor Balane, one way to resolve the situation is this Philippine law should govern with respect to properties in Philippine while the law of the domicile should govern with respect to properties located in the state of domicile.

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

Lex loci celebrationis (formal requirements of contracts, wills, and other public instruments are governed by the country in which they are executed) There is no conflict between the 1st of Article 16 and the 1st of Article 17 since they talk of 2 different things. Thus, the formal requirements of a contract involving real property in the Philippines must follow the formal requirements of the place where the contract was entered into. However, if what is involved is not the formal requirements, then the law of the place where the properties (whether real or personal) are located shall govern.V.Foreign Marriages and Foreign Divorces

Art. 26, 1. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38.

General Rule: Foreign marriages which are in accordance with the law in force in the country where they were solemnized and valid there are valid in the Philippines. Exception: Void marriages under Philippine Law Exception to the exception:1. Article 35, 2

Art. 35. The following marriages shall be void from the beginning: (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

2. Article 35, 3

Art. 35. The following marriages shall be void from the beginning: (3)Those solemnized without license, except those covered the preceding Chapter;

Art. 26, 2. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

General Rule: Foreign divorces obtained by Filipino citizens will be considered void and are not recognized. Exception: In case the parties to the marriage are a Filipino citizen and a foreigner. If the foreigner obtains a valid foreign divorce, the Filipino spouse shall have capacity to re-marry under Philippine law. However, if it is the Filipino citizen who secures the divorce, the divorce will not be recognized in the Philippines. Requisites of Article 26, 21. The marriage must be one between a Filipino and a foreigner2. Divorce is granted abroad3. Divorce must have been obtained by the alien spouse.4. Divorce must capacitate the alien spouse to remarry. Article 26, 2 has a retroactive effect if no vested rights are affected. Problem: Suppose at the time of the marriage, both are Filipinos. Later on, one spouse is naturalized. This spouse obtains a foreign divorce. Will Article 26, 2 apply?2 views:1. Justice Puno It wont. Article 26, 2 requires that at the time the marriage is celebrated, there must be 1 foreigner.2.DOJ OpinionIt applies, Article 26, 2 is not specific.Psychological Incapacity (Article 36)

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Psychological incapacity is not a substitute for divorce. The theory behind psychological incapacity is that one or both of the spouses cannot discharge one or more of the essential marital obligations (Article 68). There must be an absolute incapability to do so. During the 1st years of the effectivity of the Family Code, many couples resorted to Article 36 as a convenient way to end their marriage. As a result of these abuses, the Supreme Court became very strict in applying Article 36. Psychological incapacity must exist at the time the marriage is celebrated (like impotence). However, psychological incapacity need not be manifested at the time of the celebration of the marriage. This is the tricky part. In Santos vs. CA, the Supreme Court enumerated the following characteristics of psychological incapacity:1. Gravity2. Juridical antecedence3. Incurability In Republic vs. CA (Molina), the Supreme Court reiterated Santos vs. CA. Furthermore, the Supreme Court laid down several guidelines:1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubts should be resolved in favor of the existence and continuation of the marriage and against the dissolution and nullity.2. The root cause of the psychological incapacity must be:a. Psychological and not physical (although psychological incapacity can be manifested physically)b. Medically or clinically identifiedc. Alleged in the complaintd. Proved sufficiently by experts (i.e. psychiatrists, psychologists)e. Clearly explained in the decision3. The incapacity must be proven to be existing at the time of the celebration of the marriage.4. Such incapacity must also be shown to be medically or clinically permanent or incurable.5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage6. The essential marital obligations must be those embraced by Articles 60 to 71 of the Family Code as regards the husband and wife, as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligations must also be stated in the petition, proven by evidence and included in the test of the decision.7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. The Solicitor Generals role is to issue a certification stating why he does or does not agree. In Chi Ming Tsoi vs. CA, the convergence of all the factors stated in the complaint amounted to psychological incapacity.Void under Article 40

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

Even if the 1st marriage is void, there is still a need for a summary proceeding declaring such marriage void ab initio. Thus, if a 2nd marriage is contracted without first securing the declaration of nullity with regard to the 1st marriage, then the 2nd marriage is also void. Plus, bigamy has been committed.a. Qualified Presumptive Death (Article 391)

Art. 391. The following shall be presumed dead for all purposes, including the division 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. Person on board a vessel lost during a sea voyage, missing airplane , person in the armed forces who has taken part in war, a person who has been in danger of death under other circumstances and his existence is not known. General Rule: 4 years for all purposes Exception: 2 years for purposes of remarriage (Article 41, Family Code)Art. 41. A marriage contracted by any person during subsistence of a previous marriage 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 has a well-founded belief that the absent spouse was already dead. In case of disappearance where 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 this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

When can you ask for a decree of presumptive death for purposes of remarriage?1. 4 years after disappearance 2. 2 years if the circumstances fall under Article 391 Under these rules on presumptive death, there is no need for a court decree. The mere running of the period raises the presumption of death. However, for purposes of remarriage, a summary proceeding is required under Article 41 of the Family Code. Otherwise, the subsequent marriage is void. In the case of Eastern Shipping vs. Lucas, the Supreme Court did not apply Article 391. The Supreme Court said that Article 391 is a rebuttable presumption. Being a presumption, Article 391 is applied only if there is no evidence. In this case, the Supreme Court had enough evidence to rule that the seaman was really dead.1. Legal Separation See Articles 63 and 64 for the effects.

Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law.

Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. Art. 76. No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage.(n)

Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage.

General Rule: During the marriage, the spouses may not donate to one another. Exception: Spouses may give moderate gifts to each other on the occasion of any family rejoicing.NOTE: Article 87 is applicable to common-law spouses (Matabuena vs. Cervantes) This is to minimize improper or undue pressure as well as to prevent the spouses from defrauding their creditors.Administration and Enjoyment of Community Property

Art. 96, 1. The administration and enjoyment of the community property shall 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 be availed of within five years from the date of the contract implementing such decision.

Administration of the community property belongs to both spouses jointly. Both spouses must consent to the encumbrance or disposition of the community property.

Art. 96 (2), 2. 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 disposition or encumbrance without authority of the court or the written consent of the other spouse. In the 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 the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

The other spouse may assume sole powers of administration when:1. The other spouse is incapacitated.2. The other spouse is unable to participate (i.e., abroad) The power to administer does not include the power to dispose or encumber solely by 1 spouse. Court authority or the approval of the other spouse is required. Charges upon the Conjugal Partnership of Gains

The charges upon the CPG are parallel to the charges on the ACP.

Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed 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 conjugal partnership of gains, or by both spouses or by one of them 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 benefited; (4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse;

There is no requirement here that it be used by the family since the CPG is the usufructuary of the property.

(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 a professional or vocational course or other activity for self-improvement; and(9) Expenses of litigation between the spouses unless the suit is found to groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. Property Regime of Unions Without Marriage

According to Professor Balane, we should not use the term common-law spouses simply because we are not a common law country. For Articles 147 and 148 to apply, the persons living together as husband and wife must still be of different sexes.

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party 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.

Requisites of Article 147:1. The man and the woman must have capacity to marry each other.2. The man and the woman cohabit.3. The cohabitation is exclusive.4. The man and the woman are not married to each other or are married to each other but the marriage is void. Under Article 147, the property regime between the man and the woman would be special co-ownership. The special co-ownership covers:1. Wages and salaries of either the man and the woman2. Property acquired through the work or industry of either or both If the partner did not acquire the property directly, that partner's efforts must consist of the care and maintenance of the family and of the household in order for such party to own 1/2 of the acquired property. In Maxey vs. CA, the SC said that the co-ownership arises even if the common-law wife does not work is not gainfully employed. The common-law wife is still a co-owner since she ran the household and held the family purse even if she did not contribute thereto. The difference between this special co-ownership and the ordinary co-ownership is in Article 147, 3. In this special co-ownership, the following cannot be done:1. The co-ownership cannot be terminated until the cohabitation is also terminated.2. The co-owner may not dispose or encumber his share in the property.

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. 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 or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in both faith.

Article 148 governs live-in partners who do not fall under Article 147. Article 148 will apply if:1.The live-in partners do not have the capacity to marry each other; or Example of this is that there is an impediment of relationship, crime or age.2. The cohabitation is not exclusive. The special co-ownership only covers property acquired by both parties through their actual joint contribution of money, property or industry. This is very similar to an ordinary partnership. If a live-in partner is legally married to someone else, the share of that live-in partner will accrue to the property regime of his or her existing valid marriage.If the party who acted in bad faith is not validly married to another his or her share shall be forfeited to their common children or descendants. In the absence of descendants, such share shall belong to the innocent party.Proof of Filiation

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.

Proof of filiation of a legitimate child is very liberal:1. Record of birth2. Final judgment3. Admission in a public document4. Admission in a private handwritten instrument and signed by the said parents5. Open and continuous possession of the status of a legitimate child6. Any other means allowed by the Rules of Court (i.e. baptismal certificate, family bibles, common reputation respecting pedigree, testimony of witnesses, etc.) Proof of filiation is very liberal because the law favors legitimacy. It is better to treat an illegitimate child as legitimate then to commit an error and treat a legitimate child as an illegitimate. Art. 213. 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.

The 2nd paragraph of Article 213 provides that no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. In earlier cases, the mother was almost always the custodian of a child who is below 7 years. There is a trend of liberalizing this. Courts will always look at the best interest of the child as the criterion.