Bar Exam QUestions Flashcards
Under Article 213 of the Family Code, no child under 7 years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
Explain the rationale of this provision.
to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. (Perez Vs CA GR 118870)
Under Article 213 of the Family Code, no child under 7 years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
Give examples of these compelling reasons
Neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness (Tonog vs CA GR 122906)
Saul, a married man, had an adulterous relation with Tessie. In one of the trysts, Saul’s wife, Cecile, caught them in flagrante. Armed with a gun, Cecile shot Saul in a fit of extreme jealousy, nearly kiiling him. Four ( 4) years after the incident, Saul filed an action for legal separation against Cecile on the ground that she attempted to kill him.
If you were Saul’s counsel, how will you argue his case?
Ground - Attempt against the life of the other spouse
The law did not qualify, hence it is still a ground for legal separation, hence such must be granted by the court
Saul, a married man, had an adulterous relation with Tessie. In one of the trysts, Saul’s wife, Cecile, caught them in flagrante. Armed with a gun, Cecile shot Saul in a fit of extreme jealousy, nearly kiiling him. Four ( 4) years after the incident, Saul filed an action for legal separation against Cecile on the ground that she attempted to kill him.
If you were the lawyer of Cecile, what will be your defense?
A criminal attempt to kill a spouse is
clearly an act of moral depravity which warrants a decree of legal separation. However, the attempt on the life of the spouse must proceed from an evil design and not from any justifiable cause like self-defense or from the fact that the spouse caught the other in flagrante delicto having carnal knowledge with another man or woman
Saul, a married man, had an adulterous relation with Tessie. In one of the trysts, Saul’s wife, Cecile, caught them in flagrante. Armed with a gun, Cecile shot Saul in a fit of extreme jealousy, nearly kiiling him. Four ( 4) years after the incident, Saul filed an action for legal separation against Cecile on the ground that she attempted to kill him.
If you were the judge, how will you decide the case?
I will deny the petition for legal separation. prevailing jurispurdence provides that for a proper ground of legal separation, attempt againts the life of the other spouse must spring from an evil design and not from any justifiable cause like self-defense or from the fact that the spouse caught the other in flagrante delicto having carnal knowledge with another man or woman.
Ed and Beth have been married for 20 years without children. Desirous to have a baby, they consulted Dr. Jun Canlas, a prominent medical specialist on human fertility .He advised Beth to undergo artificial insemination. It was found that Ed’s sperm count was inadequate to induce pregnancy. Hence, the couple looked for a willing donor. Andy, the brother of Ed, readily consented to donate his sperm. After a series of tests, Andy’s sperm was medically introduced into Beth’s ovary .She became pregnant and 9 months later, gave birth to a baby boy, named Alvin.
Who is the father of Alvin?
Andy is the father. The family code provides that to be considered legitimate, the parents of a child conceived by artificial insemination must authorize or ratify such insemination in a written instrument executed and signed by them before the birth of a child. In this case, because because of the absence of such written instrument, Andy is deemed as the father of Alvin
Ed and Beth have been married for 20 years without children. Desirous to have a baby, they consulted Dr. Jun Canlas, a prominent medical specialist on human fertility .He advised Beth to undergo artificial insemination. It was found that Ed’s sperm count was inadequate to induce pregnancy. Hence, the couple looked for a willing donor. Andy, the brother of Ed, readily consented to donate his sperm. After a series of tests, Andy’s sperm was medically introduced into Beth’s ovary .She became pregnant and 9 months later, gave birth to a baby boy, named Alvin.
What are the requirements, if any, in order for Ed to establish his paternity over Alvin.
A Written Instrument duly executed and signed by them authorizing such insemination before the birth of a child
Gigi and Ric, Catholics, got married when they were 18 years old. Their marriage was solemnized on August 2, 1989 by Ric’s uncle, a Baptist Minister, in Calamba, Laguna. He overlooked the fact that his license to solemnize marriage expired the month before and that the parties do not belong to his congregation. After 5 years of married life and blessed with 2 children, the spouses developed irreconcilable differences, so they parted ways.
What is the status of the marriage between Gigi and Ric - valid, voidable or void? Explain. 2.5 %
Their Marriage is Valid. Even if the Minister’s license expired, the marriage is valid if either or both Gigi and Ric believed in good faith that he had the legal authority to solemnize marriage. While the authority of the solemnizing officer is a formal requisite of marriage, and at least one of the parties must belong to the solemnizing officer’s church, the law provides that the good faith of the parties cures the defect in the lack of authority of the solemnizing officer
(Art. 35 par. 2, Family Code; Sempio-Diy, p. 34; Rabuya, The Law on Persons and Family Relations, p. 208).
The absence of parental consent despite their having married at the age of 18 is deemed cured by their continued cohabitation beyond the age of 21. At this point, their marriage is valid (See Art. 45, Family Code).
While separated, Ric fell in love with Juliet, a 16 year-old sophomore in a local college and a seventh-Day Adventist. They decided to get married with the consent of Juliet’s parents. She presented to him a birth certificate showing she is 18 years old. Ric never doubted her age much less the authenticity of her birth certificate. They got married in a Catholic church in Manila. A year after, Juliet gave birth to twins, Aissa and Aretha.What is the status of the marriage between Ric and Juliet - valid, voidable or void? Explain.
The marriage between Juliet and Ric is void. First of all, the marriage is a bigamous marriage not falling under Article 41 [Art. 35(4)Family Code], A subsisting marriage constitutes a legal impediment to re¬marriage. Secondly, Juliet is below eighteen years of age. The marriage is void even if consented to by her parents
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
[Art. 35(1), Family Code]. The fact that Ric was not aware
Under Article 213 of the Family Code, no child under 7
of her real age is immaterial.
Gigi and Ric, Catholics, got married when they were 18 years old. Their marriage was solemnized on August 2, 1989 by Ric’s uncle, a Baptist Minister, in Calamba, Laguna. He overlooked the fact that his license to solemnize marriage expired the month before and that the parties do not belong to his congregation. After 5 years of married life and blessed with 2 children, the spouses developed irreconcilable differences, so they parted ways.
While separated, Ric fell in love with Juliet, a 16 year-old sophomore in a local college and a seventh-Day Adventist. They decided to get married with the consent of Juliet’s parents. She presented to him a birth certificate showing she is 18 years old. Ric never doubted her age much less the authenticity of her birth certificate. They got married in a Catholic church in Manila. A year after, Juliet gave birth to twins, Aissa and Aretha.
Suppose Ric himself procured the falsified birth certificate to persuade Juliet to marry him despite her minority and assured her that everything is in order. He did not divulge to her his prior marriage with Gigi. What action, if any, can Juliet take against him?
Juliet can file an action for the declaration of nullity of the marriage on the ground that he willfully caused loss or injury to her in a manner that is contrary to morals, good customs and public policy [Art. 21, New Civil Code]. She may also bring criminal actions for seduction, falsification, illegal marriage and bigamy against Ric.
Gigi and Ric, Catholics, got married when they were 18 years old. Their marriage was solemnized on August 2, 1989 by Ric’s uncle, a Baptist Minister, in Calamba, Laguna. He overlooked the fact that his license to solemnize marriage expired the month before and that the parties do not belong to his congregation. After 5 years of married life and blessed with 2 children, the spouses developed irreconcilable differences, so they parted ways.
While separated, Ric fell in love with Juliet, a 16 year-old sophomore in a local college and a seventh-Day Adventist. They decided to get married with the consent of Juliet’s parents. She presented to him a birth certificate showing she is 18 years old. Ric never doubted her age much less the authenticity of her birth certificate. They got married in a Catholic church in Manila. A year after, Juliet gave birth to twins, Aissa and Aretha.
If you were the counsel for Gigi, what action/s will you take to enforce and protect her interests? Explain. 2.5%
I would file an action to declare the marriage between Juliet and Ric null and void ab initio and for Ric’s share in the co-ownership of that marriage to be forfeited in favor and considered part of the absolute community in the marriage between Gigi and Ric [Arts. 148 & 147, Family Code]. I would also file an action for damages against Ric on the grounds that his acts constitute an abuse of right and they are contrary to law and morals, causing damages to Gigi (See Arts 19, 20, 21, New Civil Code).
Gemma filed a petition for the declaration of nullity of her marriage with Arnell on the ground of psychological incapacity .She alleged that after 2 months of their marriage, Arnell showed signs of disinterest in her, neglected her and went abroad. He returned to the Philippines after 3 years but did not even get in touch with her. Worse, they met several times in social functions but he snubbed her. When she got sick, he did not visit her even if he knew of her confinement in the hospital. Meanwhile, Arnell met an accident which disabled him from reporting for work and earning a living to support himself.
Will Gemma’s suit prosper? Explain.
No, Gemma’s suit will not prosper. Even if taken as true, the grounds, singly or collectively, do not constitute “psychological incapacity.” In Santos v. CA, G.R. No. 112019, January 4, 1995, the Supreme Court clearly explained that “psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability”
(Ferraris v. Ferraris, G.R. No. 162368, July 17, 2006; Choa v. Choa, G.R. No. 143376, November 26, 2002). The illness must be shown as downright incapacity or inability to perform one’s marital obligations, not a mere refusal, neglect, difficulty or much less, ill will. Moreover, as ruled in Republic v. Molina, GR No. 108763, February 13, 1997, it is essential that the husband is capable of meeting his marital responsibilities due to psychological and not physical illness
(Antonio v. Reyes, G.R. No. 155800, March 10, 2006; Republic
v. Quintero-Hamano, G.R. No. 149498, May 20, 2004). Furthermore, the condition complained of did not exist at the time of the celebration of marriage.
Marvin, a Filipino, and Shelley, an American, both residents of California, decided to get married in their local parish. Two years after their marriage, Shelley obtained a divorce in California. While in Boracay, Marvin met Manel, a Filipina, who was vacationing there. Marvin fell in love with her. After a brief, courtship and complying with all the requirements, they got married in Hongkong to avoid publicity, it being Marvin’s second marriage. Is his marriage to Manel valid?
Yes. The marriage will not fall under Art. 35(4) of the Family Code on bigamous marriages, provided that Shelley obtained an absolute divorce, capacitating her to remarry under her national law. Consequently, the marriage between Marvin and Manel may be valid as long as it was solemnized and valid in accordance with the laws of Hongkong [Art. 26, paragraphs 1 and 2, Family Code].
Zirxthoussous delos Santos filed a petition for change of name with the Office of the Civil Registrar of Mandaluyong City under the administrative proceeding provided in Republic Act No.9048. He alleged that his first name sounds ridiculous and is extremely difficult to spell and pronounce. After complying with the requirements of the law, the Civil Registrar granted his petition and changed his first name Zirxthoussous to “Jesus.” His full name now reads “Jesus delos santos.”
Jesus delos santos moved to General santos City to work in a multi-national company. There, he fell in love and married Mary Grace delos santos. She requested him to have his first name changed because his new name “Jesus delos santos” is the same as that of her father who abandoned her family and became a notorious drug lord. She wanted to forget him. Hence, Jesus filed another petition with the Office of the Local Civil Registrar to change his first name to “Roberto.” He claimed that the change is warranted because it will eradicate all vestiges of the infamy of Mary Grace’s father.
Will the petition for change of name of Jesus delos Santos to Roberto delos santos under Republic Act No.9048 prosper
No, under the law, Jesus may only change his name once. In addition, the petition for change of name may be denied on the following grounds:
(1) Jesus is neither ridiculous, nor tainted with dishonor nor extremely difficult to write or pronounce.
(2) There is no confusion to be avoided or created with the use of the registered first name or nickname of the petitioner.
(3) The petition involves the same entry in the same document, which was previously corrected or changed under this Order [Rules and Regulations Implementing RA 9048].
What entries in the Civil Registry may be changed or corrected without a judicial order? 2.5%
Only clerical or typographical errors and first or nick names may be changed or corrected without a judicial order under RA 9048.
Clerical or typographical errors refer to mistakes committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register.
