Lecture No. 4
CIVIL LAW REVIEW I
LECTURE SERIES
Articles 55 to 87, Family Code of the Philippines
For: University of San Agustin School of Law
General Luna Street, Iloilo City
SY 2016-2017, 1st Semester
By: Atty. Eduardo T. Reyes, III
LEGAL SEPARATION
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)
Comments:
Known as “relative divorce”
Grounds are exclusive
REPEATED Physical Violence or GROSSLY abusive conduct
On child of respondent-spouse with another person?
Repeated= Frequency
Grossly- Characterized by severity, single incident suffices
Mere “attempt” to corrupt or induce or lure into prostitution is enough
“Sexual infidelity or perversion” includes all acts which are short of adultery or concubinage
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or act complained of;
(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Comments:
“Condonation” may be express or implied
Recrimination or equal guilt. The bad faith of one cancels the bad faith of the other
Prescription. 5-years. What is the reckoning point? From time of commission or from discovery by the innocent spouse?
Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)
Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103)
Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n)
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a)
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a)
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a)
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. (106a)
Comments:
1. See Brigido B. Quiao v. Rita C. Quiao, etc. on meaning of “Net Profits Earned”. – refer to all the fruits of the separate properties of the spouses and the products of their labor and industry.
2. 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 dissolution.
3. ACP- Market value at the time of dissolution less debts and obligations = NET ASSETS OR NET REMAINDERS
4. CPG- Complete separation of capitals
5. Forfeiture- ACP- All the capitals before the marriage plus the NET ASSETS are forfeited
6. CPG- Only the Net Remainder
7. See Arts. 147-148 on forfeiture
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. (107a)
Comments:
1. “Notification thereof to the insured”?
2. 5-year prescriptive period.
3. See Article 87 Family Code in rel. to Art. 739, New Civil Code. VOID donations.
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n)
Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated 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 already effected shall subsist, unless the spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)
Art. 67. The agreement to revive the former property regime referred to in 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 its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a)
Comments:
1. “Revival of former property regime”.
2. See Articles 88 & 107 FC. ABP & CPG “shall commence at the precise moment of the celebration of the marriage. Any stipulation, express or implied, for the commencement of the community property regime at any other time, shall be void.
3. See Secs. 23 ( e ) and 24, SC En Banc Resolution A.M. No. 02-11-12 effective March 15, 2003.
4. “x x x ( e ) In case of paragraphs (b), ( c ), and (d), if the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof.
5. “Section 24. Revival of property regime or adoption of another. x x x” .
6. 1st View- “Take-it-or-leave-it basis”; 2nd View- Hybrid; 3rd View- Only ANY OTHER PROPERTY REGIME but not ACP or CPG.
7. DISINHERITANCE. “Reconciliation restores ipso jure the guilty spouse as qualified heir of the innocent spouse for purposes of intestate succession only. Family Code has no ipso jure provision to cure the revocation of provisions in a will pursuant to Art. 63 par. 4.
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a)
Art. 69. The husband and wife 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 live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a)
Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. (111a)
Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a)
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a)
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or 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 occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)
Comments:
1. May specific performance be availed of to compel a spouse who refuses to perform marital duties?
2. Article 73. “The exercise by a spouse of a legitimate profession, occupation, business or activity is always considered to redound to the benefit of the family. But an isolated transaction of a spouse such as being a guarantor for a third person’s debt is not per se considered as redounding to the benefit of the family, and therefore, to hold the absolute community property or the conjugal partnership property liable for any loss resulting from such isolated activity, proofs showing a direct benefit to the family must be presented” .
3. “Article 73, second paragraph, item number 2, however provides that “if the benefit accrued prior to the objection, the resulting obligation shall be enforced against the community property. If the benefit accrued thereafter, such obligation shall be enforced against the separate property of the spouse who has not obtained consent”. Hence, in case of professions which are seriously invalid and immoral, the separate property of the erring spouse shall be liable for all obligations relating to such exercise of profession even if benefits accrued in favour of the family provided that such benefits accrued after the objection. Clearly therefore, Article 73, 2nd paragraph, item number 2 in relation to accruing-benefits after the objection, is an exception to the general rule that, for as long as the obligations inured to the benefit of the family, the absolute or conjugal property shall be liable” .
TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
Chapter 1. General Provisions
Art. 74. The property relationship between husband and wife shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a)
Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)
Art. 77. The marriage settlements and any modification thereof shall be in writing, 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 civil registry where the marriage contract is recorded as well as in the proper registries of properties. (122a)
Comments:
1. Marriage settlements are CIRCUMSCRIBED as follows:
a. ACP or CPG can only start at the PRECISE MOMENT of celebration of marriage
b. parties cannot stipulate that they can make in the future any substantial donation to each other because such is void under Article 87.
2. Family Code went further than Rule on Statute of Frauds. Art. 1403 (2c) of the New Civil Code considers as merely unenforceable an agreement in consideration of marriage which requires the same to be in writing for purposes of validity.
3. MODIFICATIONS. Gen Rule: Any modifications must be made before the celebration of the marriage, in writing, and signed by the parties. Exceptions: Art. 66- reconciliation; Art. 67- Revival of former property regime; Art. 128- Judicial Separation of Property on the ground of Abandonment; Art. 136 & 136- Sufficient cause for Voluntary Dissolution
Art. 78. A minor who according to law may contract marriage may also execute his or her 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, subject to the provisions of Title IX of this Code. (120a)
Art. 79. For the validity of any marriage settlement executed by a person upon 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 a competent court to be made a party thereto. (123a)
Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property 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 the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a)
Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriages shall be valid. (125a)
Chapter 2. Donations by Reason of Marriage
Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (126)
Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (127a)
Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a)
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (131a)
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, 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. (132a)
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. (133a)
Comments:
1. Requisites for validity of “donations propter nuptias”
a. there must be a valid marriage settlement;
b.the marriage settlement must stipulate a property regime OTHER than the absolute community property;
c.the donation contained in the marriage settlement must not be more than one-fifth of his or her present property;
d.the donation must be accepted by the would-be spouse; and,
e. the donation must comply with the requisites established in Title III of Book III of the Civil Code on donations” .
2. Prior to the marriage, would-be husband donates to his fiancée deed of donation, not in a marriage settlement, MORE THAN ONE-FIFTH of his present property, what are the legal ramifications:
• If parties agree on ACP
• Separate Deed of Donation, not in the marriage settlement
3. General Rule: The IMPETUS or DRIVING FORCE is the “celebration of the marriage”. If no marriage celebration takes place, is Donation propter nuptias deemed void by operation of law?
• If contained in separate deed of donation?
• If embodied in marriage settlement?
4. VOID MARRIAGE. What if the marriage is void ab initio?
• Gen. Rule: There must be JUDICIAL DECLARATION of nullity of marriage. Otherwise, donation propter nuptias remains valid and binding.
• Exceptions:
• 1.Void marriage under Art. 40 in rel to Arts 52 and 53- revoked by operation of law
• 2.Terminated marriage under Art. 41- revoked by operation of law
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