Lecture
No. 3
CIVIL
LAW REVIEW I LECTURE SERIES
Articles 27 to 54, Family Code of the Philippines
For:
University of San Agustin School of Law
General
Luna Street, Iloilo City
SY
2017-2018, 1st Semester
By:
Atty. Eduardo T. Reyes, III
Chapter 2. Marriages
Exempted from License Requirement
Art. 27. In case either or
both of the contracting parties are at the point of death, the marriage may be
solemnized without necessity of a marriage license and shall remain valid even
if the ailing party subsequently survives. (72a)
Art. 28. If the residence
of either party is so located that there is no means of transportation to
enable such party to appear personally before the local civil registrar, the
marriage may be solemnized without necessity of a marriage license. (72a)
Art. 29. In the cases
provided for in the two preceding articles, the solemnizing officer shall state
in an affidavit executed before the local civil registrar or any other person
legally authorized to administer oaths that the marriage was performed in
articulo mortis or that the residence of either party, specifying the barrio or
barangay, is so located that there is no means of transportation to enable such
party to appear personally before the local civil registrar and that the
officer took the necessary steps to ascertain the ages and relationship of the
contracting parties and the absence of legal impediment to the marriage. (72a)
Art. 30. The original of
the affidavit required in the last preceding article, together with the legible
copy of the marriage contract, shall be sent by the person solemnizing the
marriage to the local civil registrar of the municipality where it was
performed within the period of thirty days after the performance of the
marriage. (75a)
Art. 31. A marriage in
articulo mortis between passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship is at sea or the
plane is in flight, but also during stopovers at ports of call. (74a)
Art. 32. A military
commander of a unit, who is a commissioned officer, shall likewise have
authority to solemnize marriages in articulo mortis between persons within the
zone of military operation, whether members of the armed forces or civilians.
(74a)
Art. 33. Marriages among
Muslims or among members of the ethnic cultural communities may be performed
validly without the necessity of marriage license, provided they are solemnized
in accordance with their customs, rites or practices. (78a)
Art. 34. No license shall
be necessary for the marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal impediment 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
solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment to the
marriage. (76a)
-“Cohabitation for five
years”. –
-Proof of our system being
in part a common law system which recognizes cohabitation or living-in as if
husband and wife.
Requisites:
1.the parties must live as
such for at least five years characterized by exclusivity, and continuity that
is unbroken.[1]
2. They must be without any
legal impediment to marry each other.
The falsity or perjured
affidavit goes into the lack of marriage license and not merely an
irregularity.
Query: May a husband who
left his wife and live exclusively with his mistress for five years, marry his
mistress after the death of his wife?
In other words, must the
condition of being devoid of any legal impediment to marry each other, likewise
continuous and unbroken for the same five year time-frame?
What is the determining
point of “no legal impediment to marry each other”?
Chapter 3. Void and
Voidable Marriages
Art. 35. The following
marriages shall be void from the beginning:
(1) Those contracted by any
party below eighteen years of age even with the consent of parents or
guardians;
(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;
(3) Those solemnized without
license, except those covered the preceding Chapter;
(4) Those bigamous or
polygamous marriages not failing under Article 41;
(5) Those contracted
through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages
that are void under Article 53.
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. (As amended by Executive Order 227)
Rule: Good or bad faith in the involvement by
a party to a marriage is immaterial.
Exceptions:
1. Article 35 (2)- either
of the contracting parties is in good faith in his/ her belief that the
solemnizing officer has the authority to solemnize a marriage
-some form of
misrepresentation employed.
According to Justice
Caguiao: This is to prevent unscrupulous chauvinistic males from deceiving the
girls, because they were made to believe that they are going to be married when
marriage is not what they want. X x x They ask a friend, a notary public, to
appear as if he were the solemnizing officer.
Dr. Arturo Tolentino: There
should be a distinction between : ignorance of the law” and “mistake of fact”.
2. Article 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.
-Psychological incapacity.
Inability to comply with the essential marital obligations of marriage of one
or both of the parties makes the marriage void. The defect of the marriage must
be present at the time of the marriage but the manifestations of the
psychological incapacity may appear only later.
a)Psychological incapacity must be characterized by: (1)
gravity; (2) juridical antecedence, and (3) incurability. The incapacity must
be grave or serious such that the party would be incapable of carrying out the
ordinary duties required in marriage; it must be rooted in the history of the
party antedating the marriage, although the overt manifestations may emerge
only after marriage; and it must be incurable, or, even if it were otherwise,
the cure would be beyond the means of the party involved.
Deep lasting emotional scar
and emotional disregulation
Incapability as opposed to
mere refusal, to comply with essential marital obligations
Art. 37. Marriages between
the following are incestuous and void from the beginning, whether relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and
descendants of any degree; and
(2) Between brothers and
sisters, whether of the full or half blood. (81a)
Art. 38. The following
marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral
blood relatives whether legitimate or illegitimate, up to the fourth civil
degree;
(2) Between step-parents
and step-children;
(3) Between parents-in-law
and children-in-law;
(4) Between the adopting
parent and the adopted child;
(5) Between the surviving
spouse of the adopting parent and the adopted child;
(6) Between the surviving
spouse of the adopted child and the adopter;
(7) Between an adopted
child and a legitimate child of the adopter;
(8) Between adopted children
of the same adopter; and
(9) Between parties where
one, with the intention to marry the other, killed that other person's spouse,
or his or her own spouse. (82)
(Art. 39. The action or defense for
the declaration of absolute nullity shall not prescribe. However, in case of
marriage celebrated before the effectivity of this Code and falling under
Article 36, such action or defense shall prescribe in ten years after this Code
shall taken effect. (As amended by Executive Order 227) (n))
Amended Art. 39. The action
or defense for the declaration of absolute nullity of a marriage shall not
prescribe. (Amended
by Executive Order No. 227 dated July 17, 1987 and further amended by Republic
Act No. 8533 dated February 23, 1998)
-Judges denying petitions for nullity founded on Art. 36
simply because the parties had endured living together for many years and had
several children.
Who can file the petition for declaration of
nullity of a marriage?
1. Indirect/ Collateral Attack. Affirmative
defense in cases involving support, determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of property regime
or criminal case for bigamy for that matter.
-Court may pass upon the
validity of the marriage even if the suit was not directly instituted to assail
the validity of marriage
2. Direct Attack. Article 40. “For purposes
of remarriage”.
-Only the husband or
the wife can file a court case to directly attack the
validity of their marriage. (S.C. Resolution A.M. No. 02-11-10-SC). “Sec. 2.
Petition for declaration of absolute nullity of void marriages. – (a) Who
may file.- A petition for declaration of absolute nullity of void marriage may
be filed solely by the husband or the wife.”
-Fujiki v. Marinay[2]. “Only the parties in a subsisting marriage can file a
case for declaration of nullity of a subsequent bigamous marriage. The other
“spouse” in a subsequent marriage cannot file the case considering that his or
her marriage is void”.
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. (n).
- For purposes of remarriage
-Bigamy
-Scenario 1. 1st marriage is
Void between A & B. B marries C, without obtaining a judicial declaration
of nullity of marriage.
Scenario 2. Ist marriage is Valid between A
& B. B marries C without obtaining a judicial declaration of nullity of
marriage.
Is the second marriage valid? No in both
cases for being bigamous. But on which ground?
Are B & C guilty of criminal Bigamy?
Mercado v. Mercado[3]. Justice Vitug dissenting: While the accused may have
violated Article 40, such violation is not a bar in invoking the nullity of the
first marriage because Article 40 merely aims to put certainty as to the void
status of the subsequent marriage and is not aimed as a provision to define
bigamy under the Family Code or criminal bigamy under the Revised Penal
Code.
Very interestingly, in MORIGO v. PEOPLE[1],
the Supreme Court acquitted an accused of the charge of Bigamy on account of
the first marriage being void ab initio notwithstanding the absence of a
judicial declaration of nullity. Thus:
“To
our mind, the primordial issue should be whether or not petitioner committed
bigamy and if so, whether his defense of good faith is valid.
The
petitioner submits that he should not be faulted for relying in good faith upon
the divorce decree of the Ontario court. He highlights the fact that he
contracted the second marriage openly and publicly, which a person intent upon
bigamy would not be doing. The petitioner further argues that his lack of
criminal intent is material to a conviction or acquittal in the instant case.
The crime of bigamy, just like other felonies punished under the Revised Penal
Code, is mala in se, and hence, good faith and lack of criminal
intent are allowed as a complete defense. He stresses that there is a
difference between the intent to commit the crime and the intent to perpetrate
the act. Hence, it does not necessarily follow that his intention to contract a
second marriage is tantamount to an intent to commit bigamy.
For
the respondent, the Office of the Solicitor General (OSG) submits that good
faith in the instant case is a convenient but flimsy excuse. The Solicitor
General relies upon our ruling in Marbella-Bobis v. Bobis,[18] which
held that bigamy can be successfully prosecuted provided all the elements
concur, stressing that under Article 40[19] of
the Family Code, a judicial declaration of nullity is a must before a party may
re-marry. Whether or not the petitioner was aware of said Article 40 is of no
account as everyone is presumed to know the law. The OSG counters that
petitioners contention that he was in good faith because he relied on the
divorce decree of the Ontario court is negated by his act of filing Civil Case
No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.
Before
we delve into petitioners defense of good faith and lack of criminal intent, we
must first determine whether all the elements of bigamy are present in this
case. In Marbella-Bobis v. Bobis,[20] we
laid down the elements of bigamy thus:
(1)
the offender has been legally married;
(2)
the first marriage has not been legally dissolved, or in case his or her spouse
is absent, the absent spouse has not been judicially declared presumptively
dead;
(3)
he contracts a subsequent marriage; and
(4)
the subsequent marriage would have been valid had it not been for the existence
of the first.
Applying
the foregoing test to the instant case, we note that during the pendency of
CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following
decision in Civil Case No. 6020, to wit:
WHEREFORE,
premises considered, judgment is hereby rendered decreeing the annulment of the
marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August
23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of
Pilar, Bohol to effect the cancellation of the marriage contract.
SO
ORDERED.[21]
The
trial court found that there was no actual marriage ceremony performed between
Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere
signing of the marriage contract by the two, without the presence of a
solemnizing officer. The trial court thus held that the marriage is void ab
initio, in accordance with Articles 3[22] and
4[23] of
the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly
puts it, This simply means that there was no marriage to begin with; and that
such declaration of nullity retroacts to the date of the first marriage. In
other words, for all intents and purposes, reckoned from the date of the
declaration of the first marriage as void ab initio to the
date of the celebration of the first marriage, the accused was, under the eyes
of the law, never married.[24] The
records show that no appeal was taken from the decision of the trial court in
Civil Case No. 6020, hence, the decision had long become final and executory.
The
first element of bigamy as a crime requires that the accused must have been
legally married. But in this case, legally speaking, the petitioner was never
married to Lucia Barrete. Thus, there is no first marriage to speak of. Under
the principle of retroactivity of a marriage being declared void ab
initio, the two were never married from the beginning. The contract of
marriage is null; it bears no legal effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was not married to Lucia at the time
he contracted the marriage with Maria Jececha. The existence and the validity
of the first marriage being an essential element of the crime of bigamy, it is
but logical that a conviction for said offense cannot be sustained where there
is no first marriage to speak of. The petitioner, must, perforce be acquitted
of the instant charge.
The
present case is analogous to, but must be distinguished from Mercado v. Tan.[25] In
the latter case, the judicial declaration of nullity of the first marriage was
likewise obtained after the second marriage was already
celebrated. We held therein that:
A
judicial declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent
marriage without first obtaining such judicial declaration is guilty of bigamy.
This principle applies even if the earlier union is characterized by statutes
as void.[26]
It
bears stressing though that in Mercado, the first marriage was
actually solemnized not just once, but twice: first before a judge where a
marriage certificate was duly issued and then again six months later before a
priest in religious rites. Ostensibly, at least, the first marriage appeared to
have transpired, although later declared void ab initio.
In
the instant case, however, no marriage ceremony at all was performed by a duly
authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a
marriage contract on their own. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and thus, needs no judicial
declaration of nullity. Such act alone, without more, cannot be deemed to
constitute an ostensibly valid marriage for which petitioner might be held
liable for bigamy unless he first secures a judicial declaration of nullity
before he contracts a subsequent marriage.
The
law abhors an injustice and the Court is mandated to liberally construe a penal
statute in favor of an accused and weigh every circumstance in favor of the
presumption of innocence to ensure that justice is done. Under the
circumstances of the present case, we held that petitioner has not committed
bigamy. Further, we also find that we need not tarry on the issue of the
validity of his defense of good faith or lack of criminal intent, which is now
moot and academic.
WHEREFORE, the
instant petition is GRANTED. The assailed decision, dated October 21, 1999 of
the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of the
appellate court dated September 25, 2000, denying herein petitioners motion for
reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho
is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not
been proven with moral certainty.”
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. (83a)
- See Republic v.
Bermudez[4], order of the trial court granting
petition for judicial declaration of presumptive death is immediately final and
executory.
-
Summary Judicial Proceedings in Family
Court
-
Art. 42. The subsequent marriage referred to in the
preceding Article shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a judgment
annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the residence of the
parties to the subsequent marriage at the instance of any interested person,
with due notice to the spouses of the subsequent marriage and without prejudice
to the fact of reappearance being judicially determined in case such fact is
disputed. (n)
Reappearance
-See
Social Security System v. Jarque Vda. De Bailon. “such absentee’s mere
reappearance, even if made known to the spouses in the subsequent marriage,
will not terminate such marriage”.
-SSS v.
Educe A. Azote[5] . “death of the first wife does
not legitimize the status of the second wife who entered into the void
subsequent bigamous marriage”.
Art. 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived
prior to its termination shall be considered legitimate;
(2) 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;
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad faith, such donations
made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary in any insurance policy,
even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in
bad faith shall be disqualified to inherit from the innocent spouse by testate
and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all donations by reason
of marriage and testamentary dispositions made by one in favor of the other are
revoked by operation of law. (n)
-Valid
bigamous marriage
-Both
parties are in GF- valid
-One of
the parties in GF, valid
-Both
parties in BF, subsequent marriage is Void
Art. 45. A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have
the marriage annulled was eighteen years of age or over but below twenty-one,
and the marriage was solemnized without the consent of the parents, guardian or
person having substitute parental authority over the party, in that order,
unless after attaining the age of twenty-one, such party freely cohabited with
the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with the other as husband and
wife;
(3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the other as husband and
wife;
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and appears to be
incurable; or
(6) That either party was afflicted with a
sexually-transmissible disease found to be serious and appears to be incurable.
(85a)
Art. 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)
Art. 47. The action for annulment of marriage must be
filed by the following persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the
party whose parent or guardian did not give his or her consent, within five
years after attaining the age of twenty-one, or by the parent or guardian or
person having legal charge of the minor, at any time before such party has
reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the
same spouse, who had no knowledge of the other's insanity; or by any relative
or guardian or person having legal charge of the insane, at any time before the
death of either party, or by the insane spouse during a lucid interval or after
regaining sanity;
(3) For causes mentioned in number 3 of Articles 45, by
the injured party, within five years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the
injured party, within five years from the time the force, intimidation or undue
influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45,
by the injured party, within five years after the marriage. (87a)
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that evidence is not fabricated
or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or confession of judgment.
(88a)
Art. 49. During the pendency of the action and in the
absence of adequate provisions in a written agreement between the spouses, the
Court shall provide for the support of the spouses and the custody and support
of their common children. The Court shall give paramount consideration to the
moral and material welfare of said children and their choice of the parent with
whom they wish to remain as provided to in Title IX. It shall also provide for
appropriate visitation rights of the other parent. (n)
Art. 50. The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or annulled
by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of third
presumptive legitimes, unless such matters had been adjudicated in previous
judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance with the provisions of
Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive
legitimes of all common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound securities,
unless the parties, by mutual agreement judicially approved, had already
provided for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate successional rights of the
children accruing upon the death of either of both of the parents; but the
value of the properties already received under the decree of annulment or
absolute nullity shall be considered as advances on their legitime. (n)
Art. 52. The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the properties of the
spouses and the delivery of the children's presumptive legitimes shall be
recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
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.
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.
Comments:
1.
Summary of Rules on Status of children under a Void Marriage:
Rule-
Children born during the subsistence of a void marriage are illegitimate.
Exceptions:
a. Article 36; b. Article 41; c. Void Marriage solely because of non-observance
of Articles 40, 52 and 53.
-Sec.
22 (b), Rule On Declaration of Absolute Nullity of Void Marriages and Annulment
of Voidable Marriages (Supreme Court En Banc Resolution A.M. No. 02-11-10-SC)
x xx
“Except in the case of children under Articles 36 and 53
of the Family Code, the court shall order the Local Civil Registrar to issue an
amended birth certificate indicating the new status of the children affected”.
Different
kinds of VOID marriages:
Special
Kind of Void Marriage Pursuant to Article 40 of FC
Versus
All
other Kinds of Void Marriages under the Family Code
“Insofar as void marriages are concerned, paragraphs (2),
(3), (4), and (5) of Article 43 exceptionally apply only to void subsequent
marriages that occur as a result of the non-observance of Article
40.Specifically, they apply to the subsequent void marriage contracted by a
spouse of a prior void marriage before the latter is judicially declared void.”
“This is the clear mandate of Article 50. In this case,
though the subsequent marriage is void, the property shall be liquidated as if
there is a conjugal partnership of gains or absolute community property.”
“In all other cases of a void marriage, other
than the void subsequent marriage that occurs as a result of the non-observance
of Article 40, the property regime shall be governed by the rule on
co-ownership provided for in Articles 147 and 148, as the case may be, and not
the conjugal partnership of gains or the absolute community of property. Hence,
in these cases where Article 147 or 148 will apply, the property regime shall
be liquidated pursuant to the ordinary rules on co-ownership
pursuant to the Civil Code provided they are not contrary to the Family
Code”.
-Questions: 1.If a marriage is declared void under Article
36 (Psychological Incapacity) and it becomes final, should the liquidation of
the of the Property Regime be done in the same family court which rendered the
decision?
2. May the ENTRY OF JUDGMENT be issued without a.
registration of the partition and distribution of the properties of the spouses
in the Civil registry where the marriage was celebrated and in the Civil
registry of the place where the Family Court is located? b.And the delivery of
children’s presumptive legitimes in cash, property, or sound securities?
-See Articles 102 (6) for liquidation of Absolute Community
Property and 129 (9) for Conjugal Partnership of Gains
-Sec. 21. Rule On Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (Supreme Court En Banc Resolution
A.M. No. 02-11-10-SC)
“Sec.
21. Liquidation, partition and distribution, custody, support of common
children.
Section 21. Liquidation, partition and
distribution, custody, support of common children and delivery of their
presumptive legitimes. - Upon entry of the judgment granting the
petition, or, in case of appeal, upon receipt of the entry of judgment of the
appellate court granting the petition, the Family Court, on motion of either
party, shall proceed with the liquidation, partition and distribution of the
properties of the spouses, including custody, support of common children and
delivery of their presumptive legitimes pursuant to Articles
50 and 51 of the Family Code unless such matters had been adjudicated in
previous judicial proceedings.
Section 22. Issuance of Decree of
Declaration of Absolute Nullity or Annulment of Marriage." (a)
The court shall issue the Decree after;
(1)
Registration of the entry of judgment granting the petition for declaration of
nullity or annulment of marriage in the Civil Registry where the marriage was
celebrated and in the Civil Registry of the place where the Family Court is
located;
(2)
Registration of the approved partition and distribution of the properties of
the spouses, in the proper Register of Deeds where the real properties are
located; and
(3) The
delivery of the children's presumptive legitimes in cash, property, or sound
securities.
(b) The
court shall quote in the Decree the dispositive portion of the judgment entered
and attach to the Decree the approved deed of partition.
Except in the case of children under Articles 36
and 53 of the Family Code, the court shall order the Local Civil Registrar to
issue an amended birth certificate indicating the new civil status of the
children affected.
[1] Prof. Sta.
Maria, PERSONS AND FAMILY RELATIONS, p. 202 citing Republic v. Dayot, G.R. No.
175581, March 28, 2008
[2] G.R. No.
196049, June 26, 2013
[3] G.R. No.
137110, August 1, 2000
[4] 449 SCRA 57
[5] G.R. No.
209741, 15 April 2015
[6] 260 SCRA 221
[7] G.R. No.
178044, January 19, 2011
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