Article 390, 391 and 392 of Family Code

 CHAPTER 4

Presumption of Death

Article 390. After an absence of seven years, it being unknown whether or not the absentee 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, an absence of five years shall be sufficient in order that his succession may be opened. (n)

-The law lays down the presumption of death of a person after an absence of seven (7) years, provided that it is unknown whether he is still alive or not. 

-The law says that the absent spouse shall be presumed dead for “all purposes” except succession. It is only after an absence of ten (10) years that his succession will be opened. In that case, his heirs can now commence an intestate proceeding, for purposes of dividing or distributing the estate of the absentee, for by then, the right of inheritance shall have already become choate, for under Article 777 if the Civil Code, it is from the moment of death that there  shall be transmission of rights, properties, or even obligations from the decedent to the heirs because of the presumptive death of the absentee. There is no physical death, but there is only presumptive death under the situation.

May a person be declared presumptively dead?

No, as a general rule, because:

a. it would be useless to make such declaration since it is already declared by law

b. the judgment would never really become final, since the person involved may actually turnout to be still alive.

Amplifying further such ruling in Lukban v Republic, the Supreme Court said in Nicolas v. Zsatrow, 46 O.G. 1st Supp. 243, that the philosophy behind the ruling in Lukban v Republic is that a judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only.It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or subject matter involved in case, or upon a competent court has to pass.It is, therefore, clear that judicial declaration tha a person is presumptively dead because he had been unheard fron in seven year, being a presumption juris tantum only, subject to contrary to proof, cannot be final.

Article 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. (n)

The reason why a person is presumed dead under these circumstances provided in Article 391 is the great possibility that the person is dead after four years from the time of the loss of the vessel or other catastrophe.

Rules:

1. The period of four (4) years in Article 391, NCC has been reduced to two (2) years under Article 41 of the Family Code, for purposes of remarriage, but te present spouse has to go to court in summary proceeding for purposes of having the absent spouse declared presumptively dead so that he/she can contract a subsequent marriage. If the present spouse does not go to court for that purpose and contracts a subsequent marriage, the same is void and bigamous. He can be convicted of the crime of bigamy (Manuel v People, GR No. 165842, November 29, 2005; Republic v CA, etal, GR No. 159614, December 9, 2005)

2. Article 391, NCC governs extraordinary absence. From the language of the law, the period of four (4) years shall be reckoned at the beginning of the period pursuant to that decision of the Court of Appeals in Judge Advocate General v Gonzales, etal 48 OG 12, p. 5329.

3. The Supreme Court said that, Article 391, NCC, relating to the presumption of death of persons aboard a vessel lost during a sea voyage, applies to cases wherein the vessel cannot be located nor accounted for, or when its fate is unknown or there is no trace of its whereabouts, inasmuch as the word “lost” used in referring to a vessel must be given the same meaning as “missing” employed in connection with an aeroplane, the persons taking both means of conveyance being the object of the rule expressed in the same sentence. Where, as in the case at bar, none of the foregoing conditions appear to exist, the rule does not apply. Instead, the rule on preponderance of evidence applies to establish the fact of death. ( Victory Shipping Lines, Inc., WCC, 106 Phil 550; Madrigal Shipping Co., Inc. v Baens del Rosario, et al., L-13130, October 31, 1959).

4. If the absentee appear or his presence is proved, he can recover his properties and the price of any properties that may have been alienated or the properties acquired therewith. He cannot, however, claim any fruits or rents.

-The reason is obvious because the possessor is presumed to be in good faith, and if that is so, he is entitled to the fruits of the propertis in his possession.

-Vessels/Aeroplanes- include watercraft and all aircrafts respectively. But the loss of the vessel must be during a sea voyage. This will include not only voyages in the open sea, but also passage along the mouths of rivers, canals in the course of such voyage. However, trips which are only in inland waters are not included (8 Von Tuhr 26).

-Other circumstances where there is danger of death would include such events as earthquakes, fires, explosions, inundations, dangerous expeditions, cave-ins of mines, volcanic eruptions, landslides, etc. 

- It has, however, been said that the more logical view seems to be that the period should be computed from the last day of danger; in case of expeditions and similar adventures of which nothing is heard of after it has started, the date when it should have been computed, if favorably concluded, is to be taken into account. (2 Von Tuhr 27).

Article 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194)

The law provides for the effect of reapperance or proof of existence of the person presumed dead. Let us say that a person was presumed dead and his estate was distributed in accordance with law or his will, but reappears, then, he can recover the properties in the condition they may be found, or the price thereof,if they have been sold or alienated. But he cannot claim the fruits or rents. 

The reason for this is that the distributees and heirs are in good faith. Under Article 544 of the Civil Code, a possessor in good faith is entitled to receive the fruits of the thing in his possession. But the moment he reappears, the possessor would no longer be entitled to receive the fruits, as they would then redound to the benefit of the owner. There would also be interruption of the possession in good faith.

In the Family Code, when the present spouse contracts a subsequent marriage after judicial declaration of presumptive death of the absentee spouse, and there is an affidavit of reapperance that is registered by an interested person in the proper civil registry, with notice to the parties of the second marriage, the latter shall be considered as automatically terminated, without prejudice to the right of the present spouse to question such reappearance. 

It is believed that if the absent spouse physically reappears, the subsequent marriage would still be terminated. This is so because of the fact that if constructive reapperance by the way of the registration of the affidavit of reapperance is enough, then with more reason physical reapperance should terminate the subsequent marriage. The added reason is that, in case an affidavit of reapperance is registered, the present spouse can question the fact of reapperance.

Case:

G.R. No. 165842   

Manuel v People of the Philippines

November 29, 2005

Callejo, Sr, J.

Facts:

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.  He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina's resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tina's parents, and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61. It appeared in their marriage contract that Eduardo was 'single.

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her. Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract. She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a 'love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was 'single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years.

Issue:

Whether or not the petitioner is guilty of bigamy.

Ruling:

Yes,the petitioner is guilty of bigamy.Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaa's presumptive death as the absent spouse. 

The Court also ruled that the petitioner's collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. 

Article 237, 238 and 239 of Family Code

 Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the recorded agreement mentioned in the foregoing. Articles 234 and 235 shall revive the parental authority over the minor but shall not affect acts and transactions that took place prior to the recording of the final judgment in the Civil Register. (n)

This has been repealed by RA 6809

TITLE XI

SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Chapter 1. Scope of Application

Art. 238. Until modified by the Supreme Court, the procedural rules  in this Title shall 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. (n)

The law makes the provisions of the Rule of Court, applicable in matters of separation in fact of the spouses, abandonment, and incidents pertaining to parental authority.

Chapter2: Separation in Fact Between Husband and Wife

Art. 239. When a husband and wife are separated in fact, or one has abandoned the other 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 transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n)

Case:

G.R. No. L-10134   

Econde v Capuno

June 29, 1957

BAUTISTA ANGELO, J.

Facts:

It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Balintawak Elementary School situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal in said city upon instruction of the city school’s supervisor. From the school Dante, with other students, boarded a jeep and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeep turned turtle and two of its passengers, Amado Ticzon and Isidoro Caperiña, died as a consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident, nor did he know that his son was going to attend a parade. He only came to know it when his son told him after the accident that he attended the parade upon instruction of his teacher.

It was established that the petitioners are both 32 years of age, Filipinos, residing in the City of Manila. They were married in 1957 and have maintained a conjugal home of their own. They do not have a child of their own blood. Neither spouse has any legitimate, legitimated, illegitimate, acknowledged natural child, or natural child by legal fiction, nor has any one of them been convicted of a crime involving moral turpitude. Edwin Villa y Mendoza, 4 years old, is a child of Francisco Villa and Florencia Mendoza who are the common parents of the petitioner-wife Edipola Villa Santos and the minor. Luis E. Santos, Jr., is a lawyer, with business interests in a textile development enterprise and the IBA electric plant, and is the general manager of Medry Inc. and the secretary-treasurer of Bearen Enterprises. His income is approximately P600.00 a month. His co-petitioner-wife, is a nurse by profession, with an average monthly earning of about P300.00.

Issue:

Whether defendant Delfin Capuno can be held civilly liable, jointly and severally with his son Dante, for damages resulting from the death of Isidoro Caperiña caused by the negligent act of minor Dante Capuno.

Ruling:

Yes, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno shall pay to plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action.

The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them and instructing them in proportion to their means", while, on the other hand, gives them the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage (Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.

Article 189 and 190 of Family Code

 Art. 189. Adoption shall have the following effects: 

(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship 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 shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and

(3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39(1)a, (3)a, PD 603) 

Adoption - is a juridical act that creates between two persons certain relations purely civil, of paternity and filiation. 

Consequently, the child has the right to bear the surname of the adopter, to receive support, and to inherit.

The relationship established by the adoption is limited to the adopting parents and does not extend to their other relatives, except as expressly provided by the law.Thus, the adopted child cannot be considered  as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage by reason of adotion. Neither are the children of the adopted consodered as descendants of the adopter.(Santos, Jr. v Republic, 21 SCRA 379)

Hence, no relationship is created between the adopted and the collaterals of the adopting parent. As a consequence, the adopted is an heir of the adopters but not the relatives of the adopter. (Teotico v Val, 13 SCRA 406)

Hence, no relationship is created between the adopted and the collaterals of the adopting parent. As a consequence, the adopted is an heir of the adopters but not the relatives of the adopter. (Teotico v Val, 13 SCRA 406)

Article 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation.

Right to Citizenship

-do not include the acquisition of the citizenship of the adopter (Cheng Ling v Galang, L-11931, October 27, 1958)

-the fact remains that he would still retain the citizenship of the natural father, with the result that should eventually benefit from it should his father become a naturalized Filipino (Tan Hoi v Republic, No. L-15266, September 30, 1960)

The citizenship of the adopter is a political matter, and not civil in nature, and the ways in which it should be conferred outside the ambit of the Civil Code. 

The rule changed due to the enactment of the RA 9225 which provides:

Sec 4. Derivative Citizenship- The unmarried child whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who are re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of ther Philippines.

Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: 

(1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession;

(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; 

(3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited 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 be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the 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. (39(4)a, PD 603)

Illustrations 

1. A adopted B, B later married C and they gave birth to E, a legitimated child. F, an illegitimate child of B before his marriage with C, his surviving spouse. Distribute the estate if estate of B is P120,000.00

E- 1/2 or P60,000.00

F- 1/4 or P30,000.00

C- 1/4 or P30,000.00

This is the distribution made by paragraph 1 of Article 190 of Family Code. The adopter, however, does not get any share of the estate.

2. A adopted B, B died, leaving an estate of P100,000.00 with A and his natural parents, C and D, as his survivors. Distribute the estate.

A - 1/2 or P50,000.00

C & D - 1/2 or P50,000.00

3. A adopted B. He married C and died without an issue. He is survived by C, his wife and A, his adopter. He left an estate of P100,000.00. Distribute the estate.

C - 1/2 or P50,000.00

A - 1/2 or P50,000.00

If, instead of getting married, B lived with a woman without the benefit of a marriage and they gave birth to C. Distribute his estate which is P100,000.00.

C - 1/2 or P50,000.00

A - 1/2 or P50,000.00

4. A adopted B. Before B’s marriage to C, he had an illegitimate child with D, named E. He died with an estate of P120,000.00, leaving his spouse, illegitimate child, and A, his adopter, as his survivors. Distribute the estate.

C - 1/3 or P40,000.00

E - 1/3 or P40,000.00

A - 1/3 or P40,000.00

5. A and B adopted C, who died with an estate of P100,000.00. He left no survivors except A and B. Distribute the estate.

The law says that if the only survivors are the adopters, they shall inherit the entire estate, A and B would therefore get P100,000.00 (See par. 5, Art. 190, Family Code)

Case:

G.R. No. L-22523   

Santos, Jr. v. Republic

September 29, 1967

ANGELES, J.

Facts:

The above-named spouses filed the petition before the court a quo on January 8, 1963, praying that the minor Edwin Villa y Mendoza, 4 years old, be declared their (petitioner's) son by adoption. Evidence was presented that the order setting the case for hearing has been duly published, Exhibit A. There having been no opposition registered to the petition, the petitioners were permitted to adduce their evidence.

It was established that the petitioners are both 32 years of age, Filipinos, residing in the City of Manila. They were married in 1957 and have maintained a conjugal home of their own. They do not have a child of their own blood. Neither spouse has any legitimate, legitimated, illegitimate, acknowledged natural child, or natural child by legal fiction, nor has any one of them been convicted of a crime involving moral turpitude. Edwin Villa y Mendoza, 4 years old, is a child of Francisco Villa and Florencia Mendoza who are the common parents of the petitioner-wife Edipola Villa Santos and the minor. Luis E. Santos, Jr., is a lawyer, with business interests in a textile development enterprise and the IBA electric plant, and is the general manager of Medry Inc. and the secretary-treasurer of Bearen Enterprises. His income is approximately P600.00 a month. His co-petitioner-wife, is a nurse by profession, with an average monthly earning of about P300.00.

It was also shown that Edwin Villa y Mendoza was born on May 22, 1958, Exhibit C. He was a sickly child since birth. Due to the child's impairing health his parents entrusted him to the petitioners who reared and brought him up for the years thereafter, and as a result, there developed between the petitioners and the child, a deep and profound love for each other. The natural parents of the minor testified that they have voluntarily given their consent to the adoption of their son by the petitioners, and submitted their written consent and conformity to the adoption, and that they fully understand the legal consequences of the adoption of their child by the petitioners.

Issue:

Whether or not an elder sister may adopt a younger brother.

Ruling:

Yes, petition for the adoption of the subject minor is granted.

With respect to the objection that the adoption in this particular case will result in a dual relationship between the parties, that the adopted brother will also be the son of the adopting elder sister, that fact alone should not prevent the adoption. One is by nature, while the other is by fiction of law. The relationship established by the adoption is limited to the adopting parents and does not extend to their other relatives, except as expressly provided by law. Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate children which they may have after the adoption except that the law imposes certain impediments to marriage by reason of adoption. 

Neither are the children of the adopted considered as descendants of the adopter (Tolentino, Civil Code, Vol. I, 1960 Ed., p. 652, citing 1 Oyuelos 284; Perez, Gonzales and Castan; 4-11 Enneccerus, Kipp & Wolff 177; Muñoz P. 104). So even considered in relation to the rules on succession which are in pari materia, the adoption under consideration would not be objectionable on the ground alone of the resulting relationship between the adopter and the adopted. Similar dual relationships also result under our law on marriage when persons who are already related, by blood or by affinity, marry each other. But as long as the relationship is not within the degrees prohibited by law, such marriages are allowed notwithstanding the resulting dual relationship. And as We do not find any provision in the law that expressly prohibits adoption among relatives, they ought not to be prevented.

Article 88, 89 and 90 of Family Code

Art. 88. The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (145a)

This law erased the anomalous situation in Article 145 of the Civil Code which provides that the conjugal partnership shall commence precisely on the date of the celebration of the marriage. 

If we are to interpret it literally, then even before the actual celebration of the marriage, the parties already have a property relationship in operation.

For example, A and B’s marriage will be solemnized at 7 o’clock in the evening of December 9, 1999, does it mean that as early as 7 o’clock in the morning of that day, they are already governed by a property relationship? 

That would be anomalous since a property can be acquired by onerous title prio to the marriage would be considered as part of the property relationship. The present law has clarified the doubt and the possible anomalous situation by saying that the absolute community of property shall commence at the precise moment that the marriage is celebrated.

Art. 89. No waiver of rights, interest, shares and effects of the absolute community of property during the marriage can be made except in the case of judicial separation of property. 

When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition to the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (146a)

The law confines to the fact that during the existence of the marriage, there can be no changes in the property relationship. In order that there may be modifications of the same, they must be done prior to the celebration of the marriage; otherwise, the same would be void, except if they are done by judicial action. Such modifications include any waiver of rights, interests, shares and effects of the absolute community of properties.

Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. (n)

The law provides for the property regime in case of common-law relationships or void marriages. In fact, the Supreme Court in Valdez v RTC of Quezon City, et al., G.R. No. 122749, July 31, 1996, 72 SCAD 967, said that the property relationship in void marriages ab initio is co-ownership and if ever there is a declaration of nullity of a void marriage, even if based on psychological incapacity, the dissolution of the properties or distribution shall be based on the law on co-ownership where the parties shall be share and share alike. 

It shall be noted, however, that the law abhors cohabitation in violation of the marriage vows. If frowns upon immorality. It protects the legitimate family, for if the other party in a cohabitation like in Agapay were allowed to get one-half of the properties upon termination of such relationship even without any material contribution, then, it would countenance immorality aside from causing undue prejudice to the legitimate family.

Case:

G.R. No. 122749

Valdez v RTC of Quezon City, et al.

July 31, 1996, 72 SCAD 967

Vitug, J.

Facts:

Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdez sought the declaration of nullity of the marriage pursuant to Article 36 of the Family code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102). 

Consuelo Gomez sought a clarification of that portion of the decision directing compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without marriage." Parenthetically, during the hearing of the motion, the children filed a joint affidavit expressing their desire to remain with their father, Antonio Valdez, herein petitioner.

Issue:

Whether or not petitioner’s contention is correct

Ruling:

No, considering that Article 147 of the Family Code explicitly provides that the property acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares, plaintiff and defendant will own their "family home" and all their properties for that matter in equal shares.

In the liquidation and partition of properties owned in common by the plaintiff and defendant, the provisions on ownership found in the Civil Code shall apply.

This particular kind of co-ownership applies when a man and a woman, suffering no illegal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38"7 of the Code.

Article 125 and 126 of Family Code

 Art. 125. Neither spouse may donate any conjugal partnership property without the 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 on occasions of family rejoicing or family distress. (174a)

Donation, while an act of liberality transfers ownership over properties, it is akin to sale of the same, hence, there is a need for the consent of the other spouse if one of them make a donation of any conjugal property. Otherwise, it is void.

Section 6. 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 declared void; or

(4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a)

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 shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n)

-Effect of death of a spouse on the conjugal properties

Art. 43. The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

-Effects of Legal Separation

Effect of Annulment of Marriage

-In case of annulment of marriage or declaration of nulity, the conjugal partnership shall be dissolved and liquidated but if one spouse contracted the marriage in bad faith, he shall lose his share of the net profits of the partnership which shall be forfeited in favor of the common children, or if none, to the children of the guilty spouse by a previous marriage or if there be none, to the innocent spouse.

Note that the guilty spouse is not entitled to the net gains of the conjugal partnership.

Effect of Separation of Properties

-Under Article 137 of the Family Code, once the separation of property has been decreed, the absolute community or conjugal partnership of gains shall be liquidated.

Case Digest:

G.R. No. 156879 

Calpatura, et al. v Patricio, Jr. et al.

January 20, 2004

YNARES-SANTIAGO, J.

Facts:

On December 19, 1959, Patricio Prado, Sr. died. Narcisa subsequently married Bonifacio Calpatura. In order to support her minor children with her first husband, Narcisa and her brother-in-law, Tomas Calpatura, Sr., executed on April 26, 1968 an Agreement of Purchase and Sale whereby the former agreed to sell to the latter the northern half portion of the property for the sum of P10,500.00.On July 28, 1973, Narcisa executed a Deed of Absolute Sale in favor of Tomas over the said property.

In 1976, Tomas’ daughter, Flordeliza Calpatura Flora, built a two-storey duplex with firewall on the northern half portion of the property. Respondents, who occupied the southern half portion of the land, did not object to the construction. Flordeliza Flora and her husband Wilfredo declared the property for taxation purposes and paid the corresponding taxes thereon. Likewise, Maximo Calpatura, the son of Tomas’ cousin, built a small house on the northern portion of the property.

On April 8, 1991, respondents filed a complaint for declaration of nullity of sale and delivery of possession of the northern half portion of the subject property against petitioners Flordeliza Calpatura Flora, Dominador Calpatura and Tomas Calpatura, Jr. before the Regional Trial Court of Quezon City, Branch 100, docketed as Civil Case No. Q-91-8404. 

Respondents alleged that the transaction embodied in the Agreement to Purchase and Sale between Narcisa and Tomas was one of mortgage and not of sale; that Narcisa’s children tried to redeem the mortgaged property but they learned that the blank document which their mother had signed was transformed into a Deed of Absolute Sale; that Narcisa could not have sold the northern half portion of the property considering that she was prohibited from selling the same within a period of 25 years from its acquisition, pursuant to the condition annotated at the back of the title;7 that Narcisa, as natural guardian of her children, had no authority to sell the northern half portion of the property which she and her children co-owned; and that only P5,000.00 out of the consideration of P10,500.00 was paid by Tomas.

Issue:

Whether or not sale of land is valid

Ruling:

Yes, the sale of the undivided one half portion thereof by Narcisa Prado in favor of Tomas Calpatura, Sr. is valid.

Narcisa Prado is entitled to 9/14 of the residential land consisting of 552.20 square meters, more or less, situated at 19th Avenue, Murphy, Quezon City and covered by Transfer Certificate of Title No. 71344. 

Finally, no particular portion of the property could be identified as yet and delineated as the object of the sale considering that the property had not yet been partitioned in accordance with the Rules of Court.28 While Narcisa could validly sell one half of the subject property, her share being 9/14 of the same, she could not have particularly conveyed the northern portion thereof before the partition, the terms of which was still to be determined by the parties before the trial court.

Furthermore, the case is REMANDED to the court of origin, only for the purpose of determining the specific portion being conveyed in favor of Tomas Calpatura, Sr. pursuant to the partition that will be agreed upon by the respondents.

Article 53 and 54 of Family Code

 Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

Question:

If they did not comply with the requirement of recording in Article 52 of the Family Code and they contracted subsequent marriages, are the marriages valid?

Answer:

It is believed that they are void, as the law says that either of the former spouse may marry again after compliance with the requirements of the provisions of Article 52.

Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

There are 2 kinds of marriages referred to in Article 54 of Family Code that can produce legitimate children prior to their declaration as void marriages. They are:

1. those marriages under Article 36 where there is “psychological incapacity”;

2. those marriages under Article 53 where the decree annulling or declaring the marriage void, the partition, distribution of properties of the spouses and the delivery of the presumptive legitimes of the children have not been recorded in the proper civil registry or registries of property.

Case Digest:

G.R. No. 122749

Valdes v. RTC, Branch 102, Quezon City, et al

July 31, 1996, 72 SCAD 967

Vitug, J.

Facts:

The petition for review bewails, purely on a question of law, an alleged error committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has failed to apply the correct law that should govern the disposition of a family dwelling in a situation where a marriage is declared void ab initio because of psychological incapacity on the part of either or both of the parties to the contract.

Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdes sought the declaration of nullity of the marriage pursuant to Article 36 of the Family Code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102).

Gomez sought a clarification of that portion in the decision.  She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in unions without marriage.

Issue:

Whether or not petition will be granted

Ruling:

No, the Supreme Court ruled that in a void marriage, regardless of the cause thereof, the property relations of the parties are governed by the rules on co-ownership.  Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts.  

A party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party’s efforts consisted in the care and maintenance of the family.

Article 116 and 117 of Family Code

 Section 3.  Conjugal Partnership Property

Article 116. All property acquired during the marriage, whether the acquisition appears have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (160a)

If there is a property that is acquired by onerous title during the marriage, there is a presumption of conjugality regardless of the source of funds used to acquire it. The presumption is not however, conclusive. It is rebuttable.

-Presumption of conjugality of properties of the husband and wife.

- Art. 1448 of the Civil Code provides

“There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child.”

-that this presumption is not overcome by the fact that the property is registered in the name of the husband or the wife alone; and that the consent of both spouses is required before a conjugal property may be mortgaged (Art 124, F.C.)

- Under Art 153, F.C. there was an issue on the mortgaged condominium unit being a family home and not corporate property. Assuming arguendo that the mortgaged condominium unit constitutes a family home, the same will not exempt it from foreclosure as Art 155 of the same Code allows the execution of forced sale of a family home “ for debts secured by mortgages on the premises before or after such constitution.”

-The presumption in favor of conjugality does not operate if there is no showing of when the property alleged to be conjugal was acquired. Moreover,the presumption may be rebutted only with strong,clear, categorical and convincing evidence. There must be strict proof of the exclusive ownership of one of the spouses, and the burden of proof rests upon the party asserting it.(GR No. 160762, May 3, 2006, 489 SCRA 107)

- When property is acquired during second marriage, the presumption is that it was acquired during the second marriage. Hence, the children of the first marriage cannot claim the property as the conjugal property of their mother and father (Mang-oy v CA, GR No. L-27421, September 12, 1986)

Case Digest:

G.R. No. 89667

JOSEPHINE B. BELCODERO vs THE HONORABLE COURT OF APPEALS, et al.

October 20, 1993, 227 SCRA 303

VITUG, J.

Facts:

This case involves the question of ownership over a piece ofproperty acquired by a husband living with a paramour and afterhaving deserted his lawful wife and children. Aloy Bosing was married to Juliana Oday in 1927 with whomhe had three (3) children. 

In 1946, he left the conjugal home andlived with Josefa Rivera with whom he begot a child named Josephine. In 1949, he purchased a parcel of land on installment with an indi-cated civil status “married to Josefa Bosing,” the common-law wife.

In 1955, he authorized the transfer of the property under Josefa alone,such that when the deed of sale was executed in 1959, the title wasplaced under Josefa alone. In 1958, he married Josefa even while hismarriage with Juliana was subsisting. He died in 1967, Josefa andJosephine executed an extrajudicial partition and sale in favor of Josephine, hence, a title was issued in favor of Josephine in 1974.

In 1980, his real wife/widow and their children filed an action for re-conveyance where the court ruled in their favor ordering Josephineto reconvey the property to his heirs. On appeal to the CA, the judg-ment was affirmed, hence, a petition for review was filed with theSupreme Court raising the issue as to who are the owners of theproperty. The Court ruled it to be conjugal and -

Issue:

Whether or not the properties are conjugal

Ruling:

Yes, the property belongs to the conjugal partnership of Aloy andJuliana together with their children. Under the law, all properties ofthe marriage are presumed to belong to the conjugal partnership,unless it be proved that it pertains exclusively to the husband or tothe wife. (Article 160, NCC, now Article 92, Family Code). 

That fact that it was registered under the name of Josefa does not mean thatshe is the owner, especially so that the registration under her namewas upon request of Aloy. Furthermore, she implicitly recognized Aloy’s ownership when she and her daughter executed a deed of extrajudicial partition and sale over her share in the conjugal partnership with Aloy. 

The said adjudication would exactly conform with a partition in intestacy had they been the sole and legitimate heirs of the decedent.

It was further said that at the time that the adjudication ofownership was made following the demise of Aloy a constructive trust was created by operation of law in favor of Josephine. 

It was not created when he allowed the property to be titled under Josefa’s namesince the title was not adversarial to Aloy’s interest. Under the law,if a property is acquired through mistake or fraud, the person ob-taining it is, by force of law, considered a trustee of an implied trustfor the benefit of the person from whom the property comes. (Article1456, NCC).

Article 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 each spouse;

4. The share of either spouse in the hidden treasure which the law awards to the finder 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. (153a, 154, 155, 159)

-Benefits obtained from the salaries of the spouses and their businesses are considered as conjugal properties of the husband and wife. The reason is that they were obtained thru labor or industry of a spouse during the marriage.

-Fruits of the common and separate properties of the spouses are conjugal properties.

Article 16 and 17 of Family Code

 Art. 16. 

In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling.

Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application.

Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.

Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n)

The mere fact that the advice was not given and the marriage was solemnized does not make the marriage void. The formalities required by law must however be complied with.

The issuance of the marriage license even before the lapse of the 90-day period if no advice was granted does not make the marriage void. It is still valid, but criminal, civil or administrative sanctions may be imposed on the officer issuing the license.

Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. 

The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public.

This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

After the receipt of the application for marriage license, the local civil registrar shall prepare a notice which shall be posted for at least ten (10) days at the bulletin board outside of his office in conspicuous places or even in places accessible to the public. 

It calls upon  anyone who has any knowledge of any legal impediment of either or both of the contracting parties to report to the local civil registrar.

This notice is one of the modes by which the State interferes in the marriage to prevent violations of the marriage law. It is noted, however, that if the local civil registrar does not publish the application and still, he issues the license, the marriage is still valid, because after all, publicity is not an essential requisite of marriage. The said public officer may,  however, be held criminally or administratively liable.

Case digest:

A.M. No. MTJ-96-1088

Rodolfo Navarro v Judge Hernando C. Domagtoy

July 19, 1996 , 72 SCAD 328 

ROMERO, J.

FACTS:

First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife.

Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte.

The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte.

Issue:

Whether or not marriage is void

Ruling:

No, the marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a subsisting marriage between Gaspar Tagadan and Ida Peñaranda.

The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month suspension and a stern warning that a repetition of the same or similar acts will be dealt with more severely. 

Considering that one of the marriages in question resulted in a bigamous union and therefore void, and the other lacked the necessary authority of respondent judge, the Court adopts said recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a deeper understanding of the law.

Respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.