ARTICLE 39 - 49 FAMILY CODE Flashcards
1
Q
T or F
The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.
A
True (Art 39)
2
Q
What is prescription of action?
A
It is the recognized principle in law whereby a cause of action, if not filed within the period fixed by law will no longer be entertained by a court at some future time.
ACTIONS PRESCRIBE BY THE MERE LAPSE OF TIME FIXED BY LAW. (Art 1139 of the New Civil Code)
3
Q
What is Imprescriptibility?
A
It means the action of defense can be raised at any time without regard to period.
4
Q
T or F
The prescription for actions seeking the declaration of nullity of void marriages under Article 36 (psychological incapacity) is 10 years.
A
False, no prescription for actions/defense seeking declaration of nullity of void marriages under Art 36.
5
Q
T or F
A void marriage cannot be questioned after the death of a spouse.
A
FALSE. It can be questioned even after death if VOID MARRIAGE.
6
Q
T or F
A voidable marriage can be questioned after the death of a spouse.
A
FALSE, a voidable marriage can only be assailed during the lifetime of the parties.
7
Q
T or F
A void marriage can be assailed by anyone, even 3rd persons.
A
FALSE, assailable only by PROPER INTERESTED PARTIES.
8
Q
T or F
A voidable marriage can be assailed by anyone, even 3rd persons.
A
FALSE, assailable only by parties mentioned in Art 47.
9
Q
T or F
A void marriage can be attacked collaterally.
A
True.
10
Q
T or F
A voidable marriage can be attacked collaterally.
A
False.
11
Q
T or F
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.
A
True. (Art 40)
12
Q
T or F
A declaration of the absolute nullity of a previous marriage is explicitly required.
A
True.
13
Q
T or F
The Commissioner of Immigration can determine the validity of marriages in the exercise of his jurisdiction to deport aliens, when such marriage is claimed as a ground for alienage or citizenship.
A
False, non-alienage.
14
Q
What property relations shall govern the properties of partners whose marriage is void?
A
Either Article 147 (Property Regime of Co-ownership) or Article 148 (Property Regime of Limited Co-ownership), as the case may be.
15
Q
T or F
The fact that the first marriage is void from the beginning is a defense in a bigamy charge.
A
FALSE.
The fact that the first marriage is void from the beginning is NOT A DEFENSE IN A BIGAMY CHARGE.
16
Q
T or F
There must be a judicial declaration of nullity of the first marriage before contracting a second marriage.
A
True.
17
Q
What is the effect if there is no judicial declaration of nullity of marriage in a subsequent marriage?
A
The parties to the subsequent parties become liable for a BIGAMOUS MARRIAGE (ART 35 (4)) and therefore the marriage is VOID.
18
Q
A and B are married. B goes missing for a decade. A has exercised diligence in searching for B, to no avail. A marries C. Are A and C liable for bigamy?
A
YES, A and C are liable for bigamy because there is A NEED FOR THE INSTITUTION OF SUMMARY PROCEEDINGS FOR THE DECLARATION OF THE PRESUMPTIVE DEATH OF THE ABSENTEE, in this case,, B.
The Judicial declaration of presumptive death is really a requirement under the new law.
19
Q
T or F
Judicial declaration of presumptive death is now authorized for purposes of remarriage.
A
True.
20
Q
T or F
The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee.
A
True.
21
Q
Article 390 of the Civil Code states that a person shall be presumed dead if he is an absentee for 4 years.
A
False, 7 years under Art 390.
22
Q
Article 41 of the Family Code states that a person can remarry if his/her spouse is presumed dead, being an absentee for 7 consecutive years.
A
False, 4 consecutive years. Note that a Judicial declaration of presumptive death is really a requirement under the new law.
23
Q
What are the instances wherein the period stated in Article 41 will be shortened to two years?
A
These are found in Art 391 of the Civil Code:
1. A person on board a vessel lost during sea voyage or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or airplane
- A person in the armed forces who has taken part in war and has been missing for four years.
- A person who has been in danger of death under other circumstances and his existence has not been known for four years.
24
Q
What are the requisites for remarriage under Article 41?
A
- The absent spouse must have been absent for at least 4 consecutive years, or at least 2 years if the disappearance is due to any of the circumstances in Art 391
- Present spouse had a WELL-FOUNDED BELIEF that the absent spouse was already dead.
- Institution of an action for the DECLARATION OF PRESUMPTIVE DEATH OF THE ABSENTEE
- Favorable judgment in favor of the present spouse
25
T or F
| Mere suspicions and surmises do not constitute well-founded belief in relation to Article 41.
True.
26
What is the effect to the previous and subsequent marriage contemplated in Article 41?
Previous marriage - CONSIDERED SUSPENDED OR PRESUMED DISSOLVED until the subsequent marriage is annulled.
Subsequent marriage - CONDITIONAL STATUS
27
What happens when the presumed deceased spouse reappears and the his spouse is already married?
The first marriage is revived and the second marriage is dissolved.
The 2nd marriage is unique in that it is CONDITIONAL being subject to the resolutory condition that is the reappearance of the missing spouse.
28
T or F
The subsequent marriage falling under Article 41 shall automatically be terminated upon reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.
FALSE, upon RECORDING OF THE AFFIDAVIT OF REAPPEARANCE OF THE ABSENT SPOUSE AND WITH NOTICE TO THE PARTIES OF THE SUBSEQUENT MARRIAGE, unless there is a judgment annulling the previous marriage or declaring it void ab initio.
29
Who may execute the affidavit of reappearance?
The reappearing absentee spouse or any INTERESTED PERSON.
30
What happens if the reappearing absentee spouse does not take any step to terminate the subsequent marriage by either affidavit or by court action?
It will not terminate the first marriage and since the second marriage is contracted because of the PRESUMPTION THAT THE FORMER SPOUSE IS DEAD, such presumption shall continue despite the reappearance.
By fiction of law, he or she must STILL BE REGARDED AS LEGALLY AN ABSENTEE UNTIL THE SUBSEQUENT MARRIAGE IS TERMINATED AS PROVIDED BY LAW.
31
A married B. Their marriage was later on declared void judicially. A went on a ship and was missing for a decade. B married C. A later resurfaced and executed an affidavit of reappearance. Does the affidavit automatically dissolve B and C's marriage?
No, since the previous marriage has already been declared void/annulled in a separate proceeding.
What has been declared void cannot be revived.
32
What are the effects of termination of the subsequent marriage on the spouses in relation to Article 41 and 42?
1. Children conceived proper to the termination of the subsequent marriage are LEGITIMATE
2. ACOP or CPOG as the case may be, shall be dissolved and liquidated. If either spouse acted in bad faith, his or her share OF THE NET PROFITS shall be forfeited in favor of the common children; if none, in favor of the children of the guilty spouse by a previous marriage; in default of children, the innocent spouse.
3. Donations by reason of marriage shall remain valid unless the donee acted in bad faith, in which case the donations are revoked by operation of law
4. If the spouse who acted in bad faith is the designated beneficiary of the innocent spouse in an insurance policy, the designation can be revoked even if it is stipulated that the designation is irrevocable.
5. The spouse who acted in bad faith is disqualified to inherit, even if the innocent spouse makes a will in favor of the other spouse, it is believed that the pertinent provisions of the will are void.
33
If both spouses of a subsequent marriage contemplated under Article 41 acted in bad faith, what shall be the effects?
The marriage itself is VOID AB INITIO, and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operations of law. (Art 44)
Note: BAD FAITH BY BOTH SPOUSES
34
What are the causes for annulment of marriage?
Simply:
1. Lack of parental consent
2. Unsoundness of mind
3. Consent obtained through fraud
4. Consent obtained by force, intimidation or undue influence
5. Physical incapability of consummating the marriage
6. Affliction with STD
The following causes MUST EXIST at the time of marriage under Art 45:
1. That the party in whose behalf it is sought to have the marriage annulled was 18 YEARS OF AGE OR OVER BUT BELOW TWENTY-ONE and THE MARRIAGE WAS SOLEMNIZED WITHOUT THE CONSENT OF THE PARENTS/GUARDIAN/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
6. That either party was afflicted with a STD found to be serious and appears to be incurable.
35
T or F
| An annulment of marriage is an action in rem as it concerns status of parties and binds the whole world.
True.
36
Who can file an annulment case?
GR: Husband and wife only
EX: Heirs may question the validity of the marriage in the proceeding for the settlement of the estate of the deceased spouse filed in a regular court.
37
T or F
| The causes for an annulment of marriage under Article 45 must be existing at the time of marriage.
True.
38
What is the effect of a marriage without parental consent?
Voidable
39
T or F
| Parental consent is needed when either or both of the parties are still BETWEEN THE AGE OF 18 AND 21 YEARS.
True.
40
T or F
| Parental consent comes from parents, or persons exercising substitute parental authority, or guardians in that order.
False, the proper order is:
1. Parents
2. Guardians
3. Persons exercising substitute parental authority
41
Marriage without parental consent is VOIDABLE. How is it ratified?
It is ratified when the spouse(s), after reaching the age of 21, FREELY COHABITED with the other.
42
T or F
| In marriages without parental consent, the parent may also ratify the marriage by giving consent later on.
False.
43
T or F
A marriage wherein a spouse who manifested insanity or unsoundness of mind BEFORE the the marriage can be annulled based on such condition.
True. It is annullable because the party was NOT CAPABLE OF UNDERSTANDING THE NATURE AND CONSEQUENCES OF THE MARRIAGE at the time of its celebration. There was a MANIFESTATION OF A CONSENT THAT IS UNREAL FOR LACK OF INTELLIGENCE.
44
T or F
A marriage wherein a spouse who manifested insanity or unsoundness of mind AFTER the the marriage can be annulled based on such condition.
FALSE.
45
T or F
| The general presumption of the law is in favor of the soundness of mind.
True.
46
T or F
| The one who alleges unsoundness of mind has the burden of proof.
True.
47
T or F
Once general insanity has been existing, it is presumed to continue and if a lucid interval is alleged to occur, the burden of proving the allegation is on the person making it.
True.
48
T or F
| When the consent of a party was obtained through fraud, the marriage is voidable.
True.
49
How is a marriage wherein consent of a party was obtained through fraud and therefore voidable, is ratified?
It is ratified by FREE COHABITATION.
50
What frauds are grounds for annulment of marriage?
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 marriage, she was pregnant by a man other than the husband
3. Concealment of a STD, regardless of its nature, existing at the time of the marriage
4. Concealment of a drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage.
51
T or F
Fraud involving deceit as to character, health, rank, fortune, chastity, and other kinds of fraud will give ground for annulment of marriage.
False, the only fraud that can annul marriage are those enumerated in Article 46.
52
T or F
| When the consent for marriage is obtained by force, intimidation or undue influence, the marriage is voidable.
True.
53
Consent for marriage is obtained by force, intimidation or undue influence, the marriage is voidable. How is it ratified?
It is ratified by FREE COHABITATION
54
When is there force or violence?
When the physical power exerted is serious or irresistible to constitute a ground for annulment.
55
When is there intimidation?
When one of the contracting is compelled by a reasonable and well-grounded belief of an imminent and grave evil upon his person or property or upon the person or property of his spouse, descendants, or ascendants, to give his consent.
56
T or F
| Consent to marry given reluctantly vitiates consent and is therefore voidable and annullable.
False. Reluctance does not constitute irresistible pressure.
Mere reluctance does not detract from the voluntariness of one's acts.
57
When is there undue influence?
There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice.
58
What factors are considered when evaluating undue influence?
Matters that are/involving:
1. Confidential
2. Family
3. Spiritual
4. Other relations
5. Mental weakness
6. Ignorance
7. Financial Distress
The influence must be undue and sufficient to subjugate the mind of the party such that his free will is destroyed and expresses the will of another, rather than his own.
59
If consent for marriage is obtained by undue influence, the marriage is voidable. How is it ratified?
It is ratified by free cohabitation.
60
What crime is committed when consent in a marriage is obtained by force, violence, undue influence or intimidation?
Art 350 of RPC - Marriage contracted against provisions of laws is PUNISHABLE BY PRISION CORRECCIONAL
61
T or F
| Physical incapacity existing before the celebration of the marriage is a ground for annulment of marriage.
True.
62
T or F
| Physical incapacity existing after the celebration of the marriage is a ground for annulment of marriage.
False.
63
What is physical incapacity?
It refers to IMPOTENCY or the INABILITY of the male or female organ of copulation to perform its proper function.
The potency referred to in Article 45 is that of ABSOLUTE/INCURABLE POTENCY.
64
What are the kinds of impotency?
1. Absolute/Incurable - continuous and no known relief
| 2. Temporary/Curable - not permanent
65
T or F
| Potency is presumed.
True.
66
What is the doctrine of triennial cohabitation?
It occurs when the man's wife, after more than three years of living together, is still a virgin. The man is presumed to be impotent.
67
T or F
| He who claims impotency must prove the claim because the presumption is in favor of potency.
True.
Impotency being an abnormal condition should not be presumed.
68
T or F
| Absolute/incurable potency existing before the marriage is a ground for annulment.
True.
69
T or F
| Absolute/incurable potency existing after the marriage is a ground for annulment.
False.
70
T or F
| Temporary/curable potency existing before the marriage is a ground for annulment.
False.
71
T or F
| Temporary/curable potency existing after the marriage is a ground for annulment.
False.
72
Absolute/incurable potency existing before the marriage is voidable and therefore a ground for annulment. How is it ratified?
NO RATIFICATION BY FREE COHABITATION SINCE THERE COULD BE NO COHABITATION AS CONSUMMATION OF THE MARRIAGE IS NOT POSSIBLE.
73
A married B, despite knowing that B is limited by his physical capacity because of absolute impotency. After 10 years, envious of her friends who already have children, decided to annul the marriage with B. Will the case of annulment prosper?
No. A, having knowledge of the impotency, is estopped from annulling the marriage based on the impotency of B.
If a party married another with full knowledge that the latter is impotent, he has taken the risk and he cannot avoid marriage by annulment nor can he invoke mistake.
74
T or F
| STD existing after the marriage is a ground for annulment.
False.
75
T or F
| STD existing before the marriage is a ground for annulment.
True.
76
What factors must be present for STD to be a valid ground for annulment?
1. STD existing at the time of marriage
2. It is an STD
3. It is Serious
4. It appears incurable
77
STD that is serious, incurable, and existing before the marriage is voidable and therefore a ground for annulment. How is it ratified?
NO RATIFICATION BY FREE COHABITATION SINCE COHABITATION IS NOT EXPECTED NOR ENCOURAGED BY LAW FOR THE PRESERVATION OF THE HEALTH OF THE OTHER SPOUSE.
78
A married B, despite knowing that B is suffering from a serious and incurable STD. Their marriage lasted for 10 years. A now wanted to annul their marriage based on B's STD. Will the case of annulment prosper?
No, the action for annulment has already prescribed.
Even if there is free cohabitation, it is submitted that the healthy spouse may still annul the marriage WITHIN FIVE YEARS AFTER ITS CELEBRATION to prevent the procreation of diseased or defective children who will be burden to society.
AFTER 5 YEARS, THE MARRIAGE BECOMES UNANNULLABLE.
79
A married B, without knowing that B is suffering from a serious and incurable STD because of B's concealment. Their marriage lasted for 10 years. A now wanted to annul their marriage based on B's STD. Will the case of annulment prosper?
Yes, since there was concealment of the STD, which constitutes fraud contemplated under Article 46(3)
80
T or F
| Lack of cohabitation is a valid ground for annulment under Article 45.
False. If lack of cohabitation were a ground for annulment, the validity of their marriage will depend upon the will of the spouses who can terminate the marital union by refusing to cohabitate.
81
What kind of fraud are contemplated in Article 45(3)?
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.
4. Concealment of drug addiction, habitual alcoholism, homosexuality, or lesbianism existing at the time of the marriage
82
A married B. B hid the fact that he was convicted of a crime involving moral turpitude but was acquitted. A, disgusted by the actions of B, filed for annulment of marriage. Will the action for annulment prosper?
No. To be annullable when it involves fraud and concealment of a past crime, the requisites are:
1. CRIME INVOLVES MORAL TURPITUDE
2. JUDGMENT OF CONVICTION IS FINAL
The conviction of B was not final and he was acquitted.
83
What requisites must be met to be annullable in cases of concealment of crime?
1. CRIME INVOLVES MORAL TURPITUDE
| 2. JUDGMENT OF CONVICTION IS FINAL
84
A married B. B hid the fact that he was convicted of a crime involving moral turpitude while the marriage was ongoing and on appeal. A, disgusted by the actions of B, filed for annulment of marriage. Will the action for annulment prosper?
No. To be annullable when it involves fraud and concealment of a past crime, the requisites are:
1. CRIME INVOLVES MORAL TURPITUDE
2. JUDGMENT OF CONVICTION IS FINAL
The conviction of B was not final as it was still on appeal.
85
A married B. B hid the fact that he was convicted with finality of a crime involving moral turpitude and that he served 10 years in prison. A, disgusted by the actions of B, filed for annulment of marriage. Will the action for annulment prosper?
Yes. To be annullable when it involves fraud and concealment of a past crime, the requisites are:
1. CRIME INVOLVES MORAL TURPITUDE
2. JUDGMENT OF CONVICTION IS FINAL
The above requisites are met.
86
Before their marriage, B revealed to A the fact that he was convicted with finality of a crime involving moral turpitude and that he served 10 years in prison. The marriage was still celebrated because in the eyes of A, B was the perfect man. Later on, A wanted to annul the marriage with B, because she was being judged by her good friends X Y Z for marrying a rapist. Will the action for annulment prosper?
No. Even if the requisites are met, which are:
1. CRIME INVOLVES MORAL TURPITUDE
2. JUDGMENT OF CONVICTION IS FINAL
There is no fraud because there was no concealment in the first place.
87
What are crimes involving moral turpitude?
Crimes that are inherently baseless, vile, shameful, wicked, and depraved.
88
A married B. A hid the fact that she had a 1 year old son with another man. B found out about it and now wants to annul their marriage. Will the action for annulment prosper?
No. Concealment of a child with another man before the marriage is not a ground for annulment.
89
A hid the fact that she was impregnated by another man before the marriage. A married B. B found out about it and now wants to annul their marriage. Will the action for annulment prosper?
Yes. Concealment of a pregnancy with another man before the marriage is a ground for annulment.
90
A revealed the fact that she was impregnated by another man before the marriage. A married B. B accepted the fact because he loves A. B regretted his decision and wanted to annul their marriage. Will the action for annulment prosper?
No, since there is no fraud through concealment anymore.
91
A and B are lovers. A got pregnant. B, believing the child to be his, and because of parental and spiritual pressure because of his deep devotion as a Catholic, married A. Feeling guilty, A told B that the child was not his but that of C. B was shocked to the core and wanted to annul their marriage. Will the action for annulment prosper?
Yes. Here, there is negative deception.
Although there was revelation of pregnancy, the disclosure was a negative deception FOR IT CONCEALED THE TRUTH AT THE TIME OF MARRIAGE.
There is no graver fraud than this, because it is attended with serious insult on the person and dignity of the husband.
92
T or F
| Concealment of pregnancy as a fraud and as an action for annulment applies only to women.
True.
93
T or F
| Concealment of STD existing at the time of marriage is a ground for annulment of marriage.
True.
94
T or F
| Concealment of STD existing after the marriage is a ground for annulment of marriage.
False.
95
T or F
Concealment of drug addiction, habitual alcoholism, homosexuality, or lesbianism existing at the time of marriage is a ground for annulment of marriage.
True.
96
T or F
Concealment of drug addiction, habitual alcoholism, homosexuality, or lesbianism existing after the marriage is a ground for annulment of marriage.
False.
97
T or F
| It is being homosexual/lesbian that vitiates consent of the innocent party.
False. It is the concealment of being homosexual/lesbian that vitiates consent of the innocent party.
98
A had her ovaries removed. A married B and hid the fact that she had surgery. Can B bring an action for annulment?
Yes, B cannot have children with a barren wife. In effect, the marriage could not be consummated for procreation of children.
99
A and B married. Afterwards, A had her ovaries surgically removed. Can B bring an action for annulment?
No. (Sarao vs Guevarra)
100
T or F
An action for annulment refers to void marriage while action for declaration of nullity of marriage refers to voidable marriage.
False.
An action for annulment refers to voidable marriage while action for declaration of nullity of marriage refers to void marriage.
101
T or F
In all cases of action for annulment or action for declaration of 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.
True. (Art 48)
102
T or F
Rules of Court allow declaration of defaults in actions for declaration of nullity or annulment of marriage or for legal separation.
False.
Rules of Court PROHIBIT declaration of defaults in actions for declaration of nullity or annulment of marriage or for legal separation.
103
T or F
| Summary judgment is allowed in an action for annulment of marriage
False.
| Summary judgment is PROHIBITED in an action for annulment of marriage.
104
T or F
The Solicitor General may intervene in actions for declaration of nullity or annulment of marriage or for legal separation.
True. (Ancheta vs Ancheta)
105
T or F
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 for in Title IX. It shall also provide for appropriate visitation rights of the other parent.
True. (Art 49)
106
T or F
During the pendency of the actions for declaration of nullity or annulment of marriage or for legal separation, a child over 8 years can choose the parent he/she wants to live with, unless the parent chosen is unfit.
False, CHILD OVER 7 YEARS.
107
Where does the support come from as contemplated in Article 49?
From ACOP or CPOG of the spouse.
If there is absolute separation of property, support comes from the separate property of the spouses IN PROPORTION TO THEIR INCOME.
108
In cases of annulment on the ground of lack of parental consent, who may file the action and when should the action be filed?
1. By the party for whom no parental consent was given, and must be filed within 5 years after attaining the age of 21.
OR
2. By the parent or guardian of the said party BEFORE the party has reached the age of 21.
109
In cases of annulment on the ground of unsoundness of mind, who may file the action and when should the action be filed?
1. By the sane spouse who had no knowledge of the other's insanity, and can be FILED ANYTIME before the death of either party.
2. By any relative or guardian or person having legal charge if the insane, and can be FILED ANYTIME before the death of either party.
3. By the insane person himself DURING A LUCID INTERVAL OR AFTER REGAINING SANITY.
110
In cases of annulment on the ground fraud, who may file the action and when should the action be filed?
By the injured party, within 5 YEARS AFTER THE DISCOVERY OF THE FRAUD.
111
In cases of annulment on the ground of vitiated consent, who may file the action and when should the action be filed?
By the injured party, within 5 YEARS FROM THE TIME THE FORCE, INTIMIDATION, OR UNDUE INFLUENCE HAS DISAPPEARED OR CEASED.
112
In cases of annulment on the physical incapacity, who may file the action and when should the action be filed?
By the injured party, within 5 YEARS AFTER THE CELEBRATION OF THE MARRIAGE.
113
In cases of annulment on the ground of STD, who may file the action and when should the action be filed?
By the injured party, within 5 YEARS AFTER THE CELEBRATION OF THE MARRIAGE.
114
T or F
There is a need for the institution of summary
proceedings for the declaration of presumptive
death of the absentee. Otherwise, there is
bigamy if a subsequent marriage is rashly
entered into.
True.
115
T or F
| Mere Reappearance of Absentee Spouse is not Sufficient to Revive the First Marriage
True. Affidavit of reappearance and notice to the parties of the subsequent marriage is needed.
116
T or F
When both spouses of the subsequent marriage contemplated in Art 41 knew that the absent spouse was still alive when they entered into the marriage, they are liable for bigamy and marriage against the provision of the law. All the effects
of the subsequent marriage, donations are revoked.
True.
117
T or F
If the pregnancy/conception is after marriage, its concealment is not a ground of annulment but of legal separation under the crime of adultery
True.
118
What happened in the case of Castillo vs Castillo?
Lea Castillo married Benjamin Bautista. Lea subsequently married Renato Castillo.
Renato Castillo filed a petition for declaration of nullity due to Lea's subsisting marriage. Lea countered that her marriage with Bautista was not valid due to absence of marriage license.
Lea's 1st marriage was later on declared void. CA and SC ruled that LEA AND RENATO'S MARRIAGE WAS VALID AND SUBSISTING, SINCE THEIR MARRIAGE WAS SOLEMNIZED UNDER THE CIVIL CODE (NOT FC) AND UNDER THE CIVIL CODE, NO JUDICIAL DECLARATION OF NULLITY ON PREVIOUS MARRIAGE WAS NECESSARY.
IN A VOID MARRIAGE, NO JUDICIAL DECREE TO ESTABLISH INVALIDITY IS NECESSARY.
DUE TO ABSENCE OF MARRIAGE LICENSE IN 1ST MARRIAGE (VOID), THE 2ND MARRIAGE IS THEN VALID AND CANNOT BE QUESTIONED FOR BIGAMY.
LEA AND RENATO'S MARRIAGE IS VALID AND SUBSISTING.
119
What are the four requisites for declaration of presumptive death?
1. Missing for 4 consecutive years, two if disappearance occurred where there is danger of death under Article 391 of the Civil Code
2. Present spouse wishes to remarry
3. Present spouse has a well-founded belief that the absentee is dead
4. Present spouse files a summary proceeding for the declaration of presumptive death.
120
A and B married w/o marriage license. A subsequently married C without judicial declaration of nullity of first marriage. Is the marriage of A and C valid and subsisting Assuming A and C's marriage was under the
(a) Civil Code
(b) Family Code
A. Marriage is valid bc presentation of final judgment of nullity of marriage is not a requirement under the civil code when contracting subsequent marriage. (Castillo vs Castillo)
B. Marriage is void bc under art 40 of the family code, for the purposes of contracting subsequent marriage, there must be final judgment from court declaring the first marriage nulled for the subsequent marriage to be valid.
121
What happened in the case of SSS vs Jarque VDA De Bailon?
Clemente Bailon married Alice Diaz in 1955. Bailo later filed a petition to declare Alice presumptively dead which was granted. Bailon contracted marriage with Teresita Jarque in 1983. Bailon, member of the SSS died in 1994.
It appeared that Clemente Bailon married thrice, to Alice Diaz, Elisa Jayona and Teresita Jarque, who are all alive. Alice was not dead and merely resided somewhere else.
SSS ruled that Jarque should reimburse what had been granted her, and that benefits should go to Alice because of her reappearance.
SC ruled that Jarque and Clemente's marriage remains valid BECAUSE THERE WAS NO AFFIDAVIT OF REAPPEARANCE BY ALICE.
Alice reappeared only after Clemente's death and can no longer file the affidavit of reappearance. The marriage was VOIDABLE ONLY and therefore CANNOT BE ATTACKED COLLATERALLY AND MUST BE ATTACKED DIRECTLY, WHICH CANNOT BE SINCE THE SAME HAS BEEN TERMINATED BY CLEMENTE'S DEATH.
122
T or F
Under the Civil Code, Judicial declaration of presumptive death is not necessary and well-founded belief is not required.
True.
123
T or F
| Under the NCC, death is presumed to have taken place by the sixth year of absence.
False, seventh year of absence.
124
What are the conditions for the termination of subsequent marriage by reappearance?
1. The nonexistence of a judgment annulling the previous marriage void ab initio
2. Recording in the civil registry of the residence of the parties to the subsequent marriage of the sworn state of fact and circumstances of reappearance.
3. Due notice to the spouses of the subsequent marriage of the fact of reappearance
4. The fact of reappearance must be undisputed or judicially determined
125
What are the conditions for the subsistence of subsequent marriage despite reappearance of presumptively dead spouse?
1. If the first marriage is annulled or declared a nullity
2. If the sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses' residence
3. If there is no notice to the subsequent spouses
4. If the fact of reappearance is disputed in the courts of law.
126
What are the requirements for a well founded belief?
1. Present spouse can prove that his/her belief was a result of A DILIGENT AND REASONABLE EFFORT TO LOCATE THE ABSENT SPOUSE
2. Based on inquiries, he/she believes that under the circumstances the absent spouse is already dead
3. Exertion of active effort
127
T or F
| Mere allegation does not equal to proof.
True.
128
What is the strict standard approach?
The Strict Standard Approach ensures that a petition for declaration of presumptive death under Art 41 of the FC IS NOT USED AS A TOOL TO CONVENIENTLY CIRCUMVENT THE LAWS.
In the case of Republic vs Sarenogon, SC stated:
"Pathetically anemic efforts to locate missing are notches below the required degree of stringent diligence prescribed by jurisprudence."
