Bar Q and A #10 – Civil Law Bar Q and A

1.) After they got married, Nikki discovered that Christian was having an affair with another woman. But Nikki decided to give it a try and lived with him for two (2) years. After two (2) years, Nikki filed an action for legal separation on the ground of Christian’s sexual infidelity. Will the action prosper? Explain.

Nikki’s action will not prosper on account at condonation. Although the action for legal separation has not yet prescribed, the prescriptive period being five years, the decision of Nikki to live with Christian after discovering his affair amounts to condonation of such act. However, if such affair is still continuing, Nikki's action would prosper because the action will surely be within (5) years from the commission of the latest act of sexual infidelity. Every act or sexual liaison is a ground for legal separation.

2.) Rosa and Ariel were married in the Catholic Church of Tarlac, Tarlac on January 5, 1988. In 1990, Ariel went to Saudi Arabia to work. There, after being converted into Islam, Ariel married Mystica. Rosa learned of the second marriage of Ariel on January 1, 1992 when Ariel returned to the Philippines with Mystica. Rosa filed an action for legal separation on February 5, 1994. 1) Does Rosa have legal grounds to ask for legal separation? 2) Has the action prescribed?

1) a) Yes, the abandonment of Rosa by Ariel for more than one (1) year is a ground for legal separation unless upon returning to the Philippines, Rosa agrees to cohabit with Ariel which is allowed under the Muslim Code. In this case, there is condonation.
b) Yes. The contracting of a subsequent bigamous marriage whether in the Philippines or abroad is a ground for legal separation under Art. 55(7) of the Family Code. Whether the second marriage is valid or not, Ariel having converted into Islam is immaterial.

2) No. Under Art. 57 of the Family Code, the aggrieved spouse must file the action within five (5) years from the occurrence of the cause. The subsequent marriage of Ariel could not have occurred earlier than 1990, the time he went to Saudi Arabia. Hence, Rosa has until 1995 to bring the action under the Family Code.

3.) 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 killing 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. 1) If you were Saul's counsel, how will you argue his case? 2) If you were the lawyer of Cecile, what will be your defense? 3) If you were the judge, how will you decide the case?

1) As the counsel of Saul, I will argue that an attempt by the wife against the life of the husband is one of the grounds enumerated by the Family Code for legal separation and there is no need for criminal conviction for the ground to be invoked. (Art. 55, par. 9, FC)

2) If I were the lawyer of Cecile, I will interpose the defense that the attempt on his life was without criminal intent but was impelled solely by passion and obfuscation. This is the reason why under the Revised Penal Code, even killing him when caught in the act would be justified. To be a ground for legal separation, the attempt must be intentional and wrongful.

3) As judge, I will deny the petition. Petition for legal separation may be filed only by the aggrieved spouse. Since Saul was unfaithful and was in fact caught in flagrante by his wife, he is not an “aggrieved” spouse entitled to the relief. He who comes to court must come with clean hands. And even assuming that the attempt on his life by the wife is a ground for legal separation, he is still not entitled to the relief because of his infidelity. The law does not allow legal separation if both parties have given ground for legal separation.

4.) True or False If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005, the prescriptive period to file for legal separation runs from 2002.

FALSE. The five-year prescriptive period for filing legal separation runs from the occurrence of sexual infidelity committed in 2002 runs from 2002, for the sexual infidelity committed in 2003, the prescriptive period runs from 2003 and so on. The action for legal separation for the last act of sexual infidelity in 2005 will prescribe in 2010.

5.) Bernard and Dorothy lived together as common-law spouses although they are both capacitated to marry. After one year of cohabitation, Dorothy went abroad to work in Dubai as a hair stylist and regularly sent money to Bernard. With the money, Bernard bought a lot. For a good price, Bernard sold the lot. Dorothy came to know about the acquisition and sale of the lot and filed a suit to nullify the sale because she did not give her consent to the sale. 1. Will Dorothy's suit prosper? Decide with reasons. 2. Suppose Dorothy was jobless and did not contribute money to the acquisition of the lot and her efforts consisted mainly in the care and maintenance of the family and household, is her consent to the sale a prerequisite to its validity? Explain.

Yes, Dorothy’s suit will prosper, unless the buyer is a buyer in good faith and for The rule of co-ownership governs the property relationship in a union without marriage between a man and a woman who are capacitated to marry each other. Article 147 of the Family Code is specifically applicable. Under this article, neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation, thus, Bernard may not validly dispose of the lot without the consent of Dorothy as the lot was acquired through their work during their cohabitation.

Yes, if Dorothy was jobless and did not contribute money to the acquisition of the lot, her consent is still a prerequisite to the validity of the Under the same article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and the household. In this case, although the money used to buy the lot was solely from Bernard, Dorothy’s care and maintenance of the family and household are deemed contributions in the acquisition of the lot. Article 147, 2ndparagraph is applicable, as the lot is deemed owned in common by the common-law spouses in equal shares as the same was acquired during their cohabitation, without prejudice to the rights of a buyer in good faith and for value.

6.) Marco and Gina were married in 1989. Ten years later, or in 1999, Gina left Marco and lived with another man, leaving their two children of school age with Marco. When Marco needed money for their children's education, he sold a parcel of land registered in his name, without Gina's consent, which he purchased before his marriage. Is the sale by Marco valid, void or voidable? Explain with legal basis.

The sale made by Marco is considered void. The parties were married in 1989 and no mention was made whether they executed a marriage settlement. In the absence of a marriage settlement, the parties shall be governed by absolute community of property whereby all the properties owned by the spouses at the time of the celebration of the marriage as well as whatever they may acquire during the marriage shall form part of the absolute community. In ACP, neither spouse can sell or encumber property belonging to the ACP without the consent of the other. Any sale or encumbrance made by one spouse without the consent of the other shall be void although it is considered as a continuing offer on the part of the consenting spouse upon authority of the court or written consent of the other spouse. (Art. 96, FC)

7.) Jambrich, an Austrian, fell in-love and lived together with Descallar and bought their houses and lots at Agro-Macro Subdivision. In the Contracts to Sell, Jambrich and Descallar were referred to as the buyers. When the Deed of Absolute Sale was presented for registration before the Register of Deeds, it was refused because Jambrich was an alien and could not acquire alienable lands of the public domain. After Jambrich and Descallar separated, Jambrich purchased an engine and some accessories for his boat from Borromeo. To pay for his debt, he sold his rights and interests in the Agro-Macro properties to Borromeo. Borromeo discovered that titles to the three (3) lots have been transferred in the name of Descallar. Who is the rightful owner of the properties? Explain.

It depends. On the assumption that the Family Code is the applicable law, the ownership of the properties depends on whether or not Jambrich and Descallar are capacitated to marry each other during their cohabitation, and whether or not both have contributed funds for the acquisition of the properties.

If both of them were capacitated to marry each other, Art. 147 will apply to their property relations and the properties in question are owned by them in equal shares even though all the funds used in acquiring the properties came only from the salaries or wages or the income of Jambrich from his business or profession. In such a case, while Jambrich is disqualiﬁed to own any part of the properties, his subsequent transfer of all his interest therein to Borromeo, a Filipino, was valid as it removed the disqualification. In such case, the properties are owned by Borromeo and Descallar in equal shares.

If, on the other hand, Jambrich and Descallar were not capacitated to marry each other, Article 153 governs their property relations. Under this regime, Jambrich and Descallar are owners of the properties but only if both of them contributed in their acquisition. If all the funds used in acquiring the properties in question came from Jambrich, the entire property is his even though he is disqualiﬁed from owning it. His subsequent transfer to Borromeo, however, is valid as it removed the disqualiﬁcation. In such case, all of the properties are owned by Borromeo. If, on the other hand, Descallar contributed to their acquisition, the properties are co-owned by Descallar and Borromeo in proportion to the respective contributions of Descallar and Jambrich. (Note: The facts of the problem are not exactly the same as in the case of Borromeo v. Descallar, G.R. No. 159310, February 24, 2009, hence, the difference in the resulting answer)

8.) Maria, wife of Pedro, withdrew P 5 Million from their conjugal funds. With this money, she constructed a building on a lot which she inherited from her father. Is the building conjugal or paraphernal? Reasons.

It depends. If the value of the building is more than the value of the land, the building is conjugal and the land becomes conjugal property under Art. 120 of the FC. This is a case of reverse accession, where the building is considered as the principal and the land, the accessory. If, on the other hand, the value of the land is more than the value of the building, then the ordinary rule of accession applies where the land is the principal and the building, the accessory. In such case, the land remains paraphernal property and the building becomes paraphernal properly. (Note: The rule on reverse accession is applicable only to the regime of conjugal partnership of gains (CPG) in both the Family Code and the New Civil Code. The foregoing answer assumes that CPG is the regime of the property relations of the spouses.)

9.) In 1989, Rico, then a widower, forty (40) years of age, cohabited with Cora, a widow, thirty (30) years of age. While living together, they acquired from their combined earnings a parcel of rice land. After Rico and Cora separated, Rico lived together with Mabel, a maiden sixteen (16) years of age. While living together, Rico was a salaried employee and Mabel kept house for Rico and did full-time household chores for him. During their cohabitation, a parcel of coconut land was acquired by Rico from his savings. After living together for one (1) year, Rico and Mabel separated. Rico then met and married Letty, a single woman twenty-six (26) years of age. During the marriage of Rico and Letty, Letty bought a mango orchard out of her own personal earnings. a) Who would own the rice land, and what property relations govern the ownership? Explain. b) Who would own the coconut land, and what property Relations governs the ownership? Explain. c) Who would own the mango orchard, and what property relation governs the ownership? Explain.

a) Rico and Cora are the co-owners of the rice land. The Relations is that of co- ownership. (Art. 147 par. 1, FC) However, after Rico's marriage to Letty, the half interest of Rico in the riceland will then become absolute community property of Rico and Letty.

b) Rico is the exclusive owner of the coconut land. The Relations is a sole/single proprietorship. (Art. 148 par. 1, FC, is applicable, and not Art. 147, FC) However, after Rico's marriage to Letty, the coconut land of Rico will then become absolute community property of Rico and Letty.

c) Rico and Letty are the co-owners. The relation is the Absolute Community of Property.(Arts. 75, 90 and 9l, FC)

10.) On 10 September 1988 Kevin, a 26-year old businessman, married Karla, a winsome lass of 18. Without the knowledge of their parents or legal guardians, Kevin and Karla entered into an antenuptial contract the day before their marriage stipulating that conjugal partnership of gains shall govern their marriage. At the time of their marriage Kevin’s estate was worth 50 Million, while Karla’swas valued at 2 Million. A month after their marriage Kevin died in a freak helicopter accident. He left no will, no debts, no obligations. Surviving Kevin, aside from Karla, are his only relatives: his brother Luis and first cousin Lilia. What property regime governed the marriage of Kevin and Karla? Explain.

Since the marriage settlement was entered into without the consent and without the participation of the parents (they did not sign the document), the marriage settlement is invalid applying Art. 78, F.C. which provides that a minor who according to law may contract marriage may also enter into marriage settlements, but they shall be valid only of the person who may give consent to the marriage are made parties to the agreement. (Karla was still a minor at the time the marriage settlement was executed in September 1988 because the law, RA 6809, reducing the age of majority to 18 years took effect on 18 December 1989). The marriage settlement being void, the property regime governing the marriage is, therefore, absolute community of property, under Art. 75 of theFC.