Civil law flash cards

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What is the status of the marriage between Regine and James under Philippine laws? (2012 Bar Question) * A) Valid * B) Void * C) Voidable * D) Dissolved

SUGGESTED ANSWER: A.

* 50. Write "TRUE' if the statement is true or "FALSE" if the statement is false. If the statement is FALSE, state the reason. xxx 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. (2007 Bar Question)

SUGGESTED ANSWER: False. The five-year prescriptive period for filing legal separation runs from the occurrence of each act of sexual infidelity. Hence, the prescriptive period for the 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.

1. B. Marriage 2. 1. Requisites of marriage * 14. Brad and Angelina had a secret marriage before a pastor whose office is located in Arroceros Street, City of Manila. They paid money to the pastor who took care of all the documentation. When Angelina wanted to go to the U.S., she found out that there was no marriage license issued to them before their marriage. Since their marriage was solemnized in 1995 after the effectivity of the Family Code, Angelina filed a petition for judicial declaration of nullity on the strength of a certification by the Civil Registrar of Manila that, after a diligent and exhaustive search, alleged marriage license indicated in the marriage certificate does not appear in the records and cannot be found. (2016 Bar Question) * A) Decide the case and explain. * B) In case the marriage was solemnized in 1980 before the effectivity of the Family Code, is it required that a judicial petition be filed to declare the marriage null and void? Explain.

SUGGESTED ANSWER: * A) I will grant the petition for judicial declaration of nullity of Brad and Angelina's marriage on the ground that there is a lack of a marriage license. The certification by the Civil Registrar of Manila that, after a diligent and exhaustive search, the alleged marriage license indicated in the marriage certificate does not appear in the records and cannot be found proves that the marriage of Brad and Angelina was solemnized without the requisite marriage license and is therefore void ab initio. The absence of the marriage license was certified to by the local civil registrar who is the official custodian of these documents and who is in the best position to certify as to the existence of these records. * B) No, it is not required that a judicial petition be filed to declare the marriage null and void when said marriage was solemnized before the effectivity of the Family Code. ALTERNATIVE ANSWER: B) Irrespective of when the marriage took place, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case.

* 15. After undergoing sex reassignment in a foreign country, Jose, who is now using the name of "Josie," married his partner Ador. Is the marriage valid? (2014 Bar Question) * A) Yes, the marriage is valid for as long as it is valid in the place where it is celebrated following Article 17 of the Civil Code. * B) Yes, the marriage is valid if all the essential and formal elements of marriage under the Family Code are present. * C) No, the marriage is not valid because one essential element of marriage is absent. * D) No, the marriage is not valid but is voidable because "Josie" concealed her real identity.

SUGGESTED ANSWER: 1. C. It is not valid for lack of one essential requirement (Silverio v. Republic, G.R. No. 174689, October 22, 2007).

3. Entries in the Civil Registry and Clerical Error Law (RA 9048, as amended) * 10. Gianna was born to Andy and Aimee, who at the time of Gianna's birth were not married to each other. While - Andy was single at that time, Aimee was still in the process of securing a judicial declaration of nullity on her marriage to her ex- husband. Gianna's birth certificate, which was signed by both Andy and Aimee, registered the status of Gianna as "legitimate", her surname carrying that of Andy's, and that her parents were married to each other. * A) Can a judicial action for correction of entries in Gianna's birth certificate be successfully maintained to: xxx (ii) Change her surname from that of Andy's to Aimee's maiden surname? (2008 Bar Question)

SUGGESTED ANSWER: A judicial action to change the surname of Gianna from the surname of Andy to the maiden surname of Aimee is also not allowed. Gianna, being presumed to be the legitimate child of Aimee's husband is required by law to be registered under the surname of Aimee's husband. While it is true that Gianna's registered surname is erroneous, a judicial action for correction of entry to change the surname of Gianna to that of Aimee's maiden surname will also be erroneous. A judicial action to correct an entry in the birth certificate is allowed to correct an error and not to commit another error. ALTERNATIVE ANSWER: It may be noted that the problems does not show whether Gianna was born while Aimee was living with her ex-husband. Neither does it show who filed the judicial action to correct the entries. If the problem is intended only for the purpose of determining whether factual changes are in order, then the answers are: xxx (ii) If the child is considered illegitimate, then she should follow the surname of her mother.

* 29. In 2008, Lita met and and married Jaime. They now have a child of their own. While on a tour with her former high school classmates in a remote province of China in 2010, Lita was surprised to see Lito or somebody who looked exactly like him, but she was sure it was Lito because of the extreme surprise that registered in his face when he also saw her. Shocked, she immediately fled to her hotel and post haste returned to the country the next day. Lita now comes to you for legal advice. She asks you the following questions: * (1) If Lito is alive, what is the status of his marriage to Lita? (2013 Bar Question) * A) The marriage subsists because the marital bond has not been terminated by death. * B) The marriage was terminated when Lita married Jaime. * C) The marriage subsists because Lita's marriage to Jaime is void. * D) The marriage is terminated because Lito is presumed dead after his plane has been missing for more than 4 years. * E) The marriage can be formally declared terminated if Lito would not resurface.

SUGGESTED ANSWER: A, since Lito is still alive the marital bond has not been severed

* 21. Harry married Wilma, a very wealthy woman. Barely five (5) years into the marriage, Wilma fell in love with Joseph. Thus, Wilma went to a small country in Europe, became a naturalized citizen of that country, divorced Harry, and married Joseph. A year thereafter, Wilma and Joseph returned and established permanent residence in the Philippines. * A) Is the divorce obtained by Wilma from Harry-recognized in the Philippines? Explain your answer. (2009 Bar Question)

SUGGESTED ANSWER: As to Wilma, the divorce obtained by her is recognized as valid in the Philippines because she is now a foreigner. Philippine personal laws do not apply to a foreigner. However, recognition of the divorce as regards Harry will depend on the applicability to his case of the second paragraph of Article 26 of the Family Code. If it is applicable, divorce is recognized as to him and, therefore, he can remarry. However, if it is not applicable, divorce is not recognized as to him and, consequently, he cannot remarry. ANOTHER SUGGESTED ANSWER: Yes, the divorce obtained by Wilma is recognized as valid in the Philippines. At the time she got the divorce, she was already a foreign national having been naturalized as a citizen of that "small country in Europe." Based on precedents established by the Supreme Court (Bayot v. CA, 570SCRA 472 [2008]), divorce obtained by a foreigner is recognized in the Philippines if validly obtained in accordance with his or her national law.

* B) If Harry hires you as his lawyer, what legal recourse would you advise him to take? Why? (2009 Bar Question)

SUGGESTED ANSWER: I will advise Harry to: * 1. dissolve and liquidate his property relations with Wilma; and * 2. if he will remarry, file a petition for the recognition and enforcement of the foreign judgment of divorce.

* 5. Dr. Lopez, a 70-year old widower, and his son Roberto both died in a fire that gutted their home while they were sleeping in their air-conditioned rooms. Roberto's wife, Marilyn, and their two children were spared because they were in the province at the time. Dr. Lopez left an estate worth P20M and a life insurance policy in the amount of P1M with his three children --- one of whom is Roberto --- as beneficiaries. Marilyn is now claiming for herself and her children her husband's share in the estate left by Dr. Lopez, and her husband's share in the proceeds of Dr. Lopez's life insurance policy. Rule on the validity of Marilyn's claims with reasons. (2009 Bar Question)

SUGGESTED ANSWER: As to the Estate of Dr. Lopez: Marilyn is not entitled to a share in the estate of Dr. Lopez. Pursuant to Article 43 of the Civil Code, for purposes of succession, Dr. Lopez and his son Roberto are presumed to have died at the same time, there being no evidence to prove otherwise, and there shall be no transmission of rights from one to the other. Hence, Roberto inherited nothing from his father that Marilyn would in turn inherit from Roberto. The children of Roberto, however, will succeed their grandfather, Dr. Lopez, in representation of their father Roberto and together will receive 1/3 of the estate of Dr. Lopez since their father Roberto was one of the three children of Dr. Lopez. Marilyn cannot represent her husband Roberto because the right of representation is not given by law to a surviving spouse. As to the proceeds of the insurance on the life of Dr. Lopez: Since succession is not involved as regards the insurance proceeds, the provisions of the Rules of Court on survivorship shall apply. Under the Rules, Dr. Lopez, who was 70 years old, is presumed to have died ahead of Roberto, who is presumably between the ages of 15 and 60. Having survived the insured, Roberto's right as a beneficiary became vested upon the death of Dr. Lopez. When Roberto died after Dr. Lopez, his right to receive the insurance proceeds became part of his hereditary estate, which in turn was inherited in equal shares by his legal heirs, namely, his spouse and children. Therefore, Roberto's children and his spouse are entitled to Roberto's one-third share in the insurance proceeds.

* B) Between Marian and the baby, who is presumed to have died ahead?

SUGGESTED ANSWER: Assuming the baby was alive when completely delivered from the mother's womb, then it was born as a person and the question of who survived as between the baby and the mother shall be resolved by the provisions of the Rules of Court on survivorship. This is because the question to be resolved does not involve succession but the implementation of an insurance policy. Under Rule 131, Sec. 3, (jj), (5) as between the baby who was under 15 years old and Marian who was 18 years old, Marian is presumed to have survived. Hence, it is the baby who is presumed to have died ahead.

* (2) If Lito is alive, what is the status of Lita's marriage to Jaime? * A) The marriage is valid because Lita's marriage to Lito was terminated upon Lito's disappearance for more than seven years. * B) The marriage is valid. After an absence of more than 10 years, Lito is already presumed dead for all purposes. * C) The marriage is void. Lito's mere absence, however lengthy, is insufficient to authorize Lita to contract a subsequent marriage. * D) The marriage is void. If Lito is indeed alive, his marriage to Lita was never dissolved and they can resume their marital relations at any time.

SUGGESTED ANSWER: C. Lito's absence did not automatically grant Lita the right to remarry without securing a declaration of presumptive death.

* 7. Atty. BUKO, a Filipino, executed a will while he was in Spain. The attestation clause of the said will does not contain Buko's signature. It is valid under Spanish law. At its probate in Manila, it is being opposed on the ground that the attestation clause does not contain BUKO's signature. Is the opposition correct? Choose the best answer. (2012 Bar Question) * A) Yes, because it is a fatal defect. * B) Yes, the will is not valid under Philippine law. * C) No, attestation clause is not an act of the testator. * D) No, the governing law is Spanish law.

SUGGESTED ANSWER: C/D. [Note: The facts do not state the Law observed by the Testator in executing his will. He could have observed Spanish Law or Philippine Law (see comment on Tolentino in Art 815, NCC in 3 Tolentino 117, 1992). If he observed Spanish Law, the opposition is not correct because the will is valid under Spanish Law, hence choice D is the correct answer. If he observed Philippine Law, the opposition is still not correct because Philippine Law does not require the testator to sign the Attestation Clause of his will. said clause not being his act. In such case, choice C is the correct answer.]

* 2. A pedestrian, who was four (4) months pregnant, was hit by a bus driver while crossing the street. Although the pedestrian survived, the fetus inside her womb was aborted. Can the pedestrian recover damages on account of the death of the fetus? (2012 Bar Question) * A) Yes, because of Article 2206 of the Civil Code which allows the surviving heirs to demand damages for mental anguish by reason of the death of the deceased. * B) Yes, for as long as the pedestrian can prove that she was not at fault and the bus driver was the one negligent. * C) No, because a fetus is not a natural person. * D) No, if the fetus did not comply with the requirements under Article 41 of the Civil Code.

SUGGESTED ANSWER: D. Article 41 of the Civil Code requires that to be considered a person, a fetus with an intrauterine life of less than seven months must survive for the full twenty-four hours from complete separation from the mother's womb.

* 44. Write "TRUE' if the statement is true or "FALSE" if the statement is false. If the statement is FALSE, state the reason. (2007 Bar Question) xxx The day after John and Marsha got married, John told her that he was impotent. Marsha continued to live with John for 2 years. Marsha is now estopped from filing an annulment case against John.

SUGGESTED ANSWER: FALSE. Marsha is not estopped from filing an annulment case against John on the ground of his impotence, because she learned of his impotence after the celebration of the marriage and not before. Physical incapability to consummate the marriage is a valid ground for the annulment of marriage if such incapacity was existing at the time of the marriage, continues and appears to be incurable. The marriage may be annulled on this ground within five years from its celebration (Art. 45 [5], Family Code).

* 20. True or False. Under Article 26 of the Family Code, when a foreign spouse divorces his/her Filipino spouse, the latter may re-marry by proving only that the foreign spouse has obtained a divorce against her or him abroad. (2010 Bar Question)

SUGGESTED ANSWER: False. In Garcia v. Recio, 366 SCRA 437 (2001), the SC held that for a Filipino spouse to have capacity to contract a subsequent marriage, it must also be proven that the foreign divorce obtained by the foreigner spouse gives such foreigner spouse capacity to remarry. ALTERNATIVE ANSWER: True. Art. 26 (2) (FC), clearly provides that the decree of divorce obtained abroad by the foreigner spouse is sufficient to capacitate the Filipino spouse to remarry.

* 59. In gratitude, the groom's parents made a donation of a property in writing to the bride's parents shortly before their children's wedding. The donation was accepted. What is the nature of the donation? (2011 Bar Question) * A) It is an ordinary donation since it was not given to the bride or groom. * B) It is donation propter nuptias since it was given with the marriage in mind. * C) It is an indirect donation propter nuptias since the bride would eventually inherit the property from her parents. * D) It is a remunatory donation.

SUGGESTED ANSWER: A.

* 25. Kardo filed a petition for declaration of nullity of marriage under Article 36. Based on interviews from Kardo, his aide, and the housekeeper, a psychologist testified that Glenda's habitual infidelity was due to her affliction with Histrionic Personality Disorder, an illness characterized by excessive emotionalism and uncontrollable attention-seeking behavior rooted in Glenda's abandonment as a child by her father. Kardo himself, his aide, and his housekeeper also testified in court. The RTC granted the petition, relying on the liberality espoused by Te v. Te and Azcueta v. Republic. However, the OSG filed an appeal, arguing that sexual infidelity was only a ground for legal separation and that the RTC failed to abide by the guidelines laid down in the Molina case. How would you decide the appeal? (2015 Bar Question)

SUGGESTED ANSWER: I will resolve the appeal in favor of the Republic. In the case of Dedel v. Dedel, the Supreme Court refused to declare the marriage of the parties void on the ground of sexual infidelity of the wife Sharon. In the case mentioned, the wife committed infidelity with several men up to the extent of siring two illegitimate children with a foreigner. The court, however, said that it was not shown that the sexual infidelity was a product of a disordered personality and that it was rooted in the history of the party alleged to be psychologically incapacitated. Also, the finding of psychological incapacity cannot be based on the interviews conducted by the clinical psychologist on the husband or his witnesses and the person alleged to be psychologically incapacitated must be personally examined to arrive at such declaration.

* 26. Ariz and Paz were officemates at Perlas ng Silangan Bank (PSB). They fell in love with each other and had a civil and church wedding. Meanwhile, Paz rapidly climbed the corporate ladder of PSB and eventually became its Vice President, while Ariz remained one of its bank supervisors, although he was short of 12 units to finish his Masters of Business Administration (MBA) degree. Ariz became envious of the success of his wife. He started to drink alcohol until he became a drunkard. He preferred to join his "barkadas"; became a wifebeater; would hurt his children without any reason; and failed to contribute to the needs of the family. Despite rehabilitation and consultation with a psychiatrist, his ways did not change. After 19 years of marriage, Paz, a devout Catholic, decided to have their marriage annulled by the church. Through the testimony of Paz and a psychiatrist, it was found that Ariz was a spoiled brat in his youth and was sometimes involved in brawls. In his teens, he was once referred to a psychiatrist for treatment due to his violent tendencies. In due time, the National Appellate Matrimonial Tribunal (NAMT) annulled the union of Ariz and Paz due to the failure of Ariz to perform and fulfill his duties as a husband and as a father to their children. The NAMT concluded that it is for the best interest of Paz, Ariz and their children to have the marriage annulled. In view of the NAMT decision, Paz decided to file a Petition for Declaration of Nullity of Marriage of their civil wedding before the Regional Trial Court (RTC) of Makati City using the NAMT decision and the same evidence adduced in the church annulment proceedings as basis. If you are the judge, will you grant the petition? Explain. (2014 Bar Question)

SUGGESTED ANSWER: If I were the judge, I will not grant the petition. While the decision of the church tribunal annulling the marriage of the parties may be persuasive, it is not however, binding upon the civil courts. For psychological incapacity to be a ground for nullity, it must be shown that it was rooted in the history of the party alleged to be suffering from it, it must be grave and serious, and incurable such that it renders the person incapacitated to perform the essential marital obligations due to causes psychological in nature. In the case presented, it appears that Ariz fulfilled his marital obligations at the beginning and it was only after feeling envious about the success of Paz that he started exhibiting violent tendencies and refused to comply with marital obligations. Psychological incapacity is not mere refusal but outright incapacity to perform marital obligations which does not appear to be present in the case of Ariz.

* E) Marriage of Zoren and Carmina who did not secure a marriage license prior to their wedding, but lived together as husband and wife for 10 years without any legal impediment to marry. (2017 Bar Question)

SUGGESTED ANSWER: If Zoren and Carmina lived together as husband and wife for 10 years prior to their marriage, then the marriage is valid, despite the absence of the marriage license. An exception to the rule that a marriage shall be void if solemnized without license under Article 35(3) is that provided for under Article 34 of the Family Code.

3. Marriages solemnized abroad and foreign divorce * 19. Romeo and Juliet, both Filipinos, got married. After a few years, Juliet got word from her mother that she can go to the United States for naturalization. Juliet promised she will be back the moment she becomes an American. After sometime, Romeo learned from a friend that Juliet already became a U.S. citizen and even divorced him to marry a wealthy American businessman. Romeo filed a petition before the Regional Trial Court praying that an order be issued authorizing him to remarry pursuant to Article 26 of the Family Code. Decide the petition with reasons. (2016 Bar Question)

SUGGESTED ANSWER: If the time of Juliet's acquisition of U.S. citizenship preceded the time when she obtained the divorce decree, then the divorce decree can be given effect in the Philippines, and consequently, Romeo will be capacitated to remarry under Philippine law. On the other hand, if Juliet obtained the divorce decree before she acquired U.S. citizenship, then the foreign divorce decree cannot be recognized by Philippine courts. The reckoning point is not their citizenship at the time of celebration of marriage, but their citizenship at the time the divorce decree is obtained abroad by the alien spouse capacitating him/her to remarry. ALTERNATIVE ANSWER: The petition should not be granted. A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other evidentiary facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

4. Conjugal Partnership of Gains * 61. 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. (2012 Bar Question)

SUGGESTED ANSWER: 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 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.)

* 18. If Ligaya, a Filipino citizen residing in the United States, file a petition for change of name before the District Court of New York, what law shall apply? Explain. (2009 Bar Question)

SUGGESTED ANSWER: New York law shall apply. The petition for change of name filed in New York does not concern the legal capacity or status of the petitioner. Moreover, it does not affect the Registry of any other country including the country of birth of the petitioner. Whatever judgment is rendered in that petition will have effect only in New York. The New York court cannot, for instance, order the Civil Registrar in the Philippines to change its records. The judgment of the New York Court allowing a change in the name of the Petitioner will be limited to the records of the petitioner in New York and the use of the new name in all her transactions in New York. Since the records and processes in New York are the only ones affected the New York Court will apply New York law in resolving the petition. ALTERNATIVE ANSWER: Philippine law shall apply (Art. 15, NCC). Status, conditions, family rights and duties are governed by Philippine laws as to Filipinos even though sojourning abroad. ANOTHER ALTERNATIVE ANSWER: The laws of New York will govern since a change of name is not a subject covered by the principles of nationality.

1. C. Legal separation * 46. 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. (2012 Bar Question)

SUGGESTED ANSWER: 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.

* B) Assuming that the will is probated in the Philippines, can Jay validly insist that he be given his legitime? Why or why not?

SUGGESTED ANSWER: No, Jay cannot validly insist that he be given his legitime because New York law does not recognize the concept of compulsory heirs. The national law of the testator determines who his heirs are, the order that they succeed, how much their successional rights are, and whether or not a testamentary disposition in his will is valid (Article 16, NCC). Since Dr. Fuentes was a US citizen, the laws of New York determine who his heirs are.

* 24. Leo married Lina and they begot a son. After the birth of their child, Lina exhibited unusual behavior and started to neglect her son; she frequently went out with her friends and gambled in casinos. Lina later had extra-marital affairs with several men and eventually abandoned Leo and their son. Leo was able to talk to the psychiatrist of Lina who told him that Lina suffers from dementia praecox, a form of psychosis where the afflicted person is prone to commit homicidal attacks, Leo was once stabbed by Lina but fortunately he only suffered minor injuries, Will a Petition for Declaration of Nullity of Marriage filed with the court prosper? Explain. (2016 Bar Question)

SUGGESTED ANSWER: No, a Petition for Declaration of Nullity of Marriage under Article 36 of the Family Code will not prosper. Even if taken as true, the grounds alleged are not sufficient to declare the marriage void under "psychological incapacity". In Santos v. CA, the Supreme Court explained that psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability, 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. While Lina was not examined by a physician, the Supreme Court has ruled in Marcos v. Marcos that actual medical examination need not be resorted to where the totality of evidence presented is enough to sustain a finding of psychological incapacity. However, in this case, the pieces of evidence presented are not sufficient to conclude that indeed Lina is suffering from psychological incapacity existing already before the marriage, incurable and serious enough to prevent her from performing her essential marital obligations. ALTERNATIVE ANSWER: No, a. Petition for Declaration of Nullity of Marriage under Article 36 of the Family Code will not prosper. However, a Petition for Annulment of Marriage under Article 45 of the Family Code may.prosper, on the ground of unsound mind, assuming that Lina's unsound mind existed at the time of the celebration of the marriage.

* 8. Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19- year old girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital and other medical expenses in delivering the child by I caesarean section; moral, claiming that Rodolfo promised to j marry her, representing that he was single when, in fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios. xxx Suppose Rodolfo later on acknowledges Rona and gives her regular support, can he compel her to use his surname? Why or why not? (2009 Bar Question)

SUGGESTED ANSWER: No, he has no right to compel Rona to use his surname. The law does not give him that right simply because he gave her support. Under the Family Code, an illegitimate child was required to use only the surname of the mother. Under RA 9255, however, the illegitimate child is given the option to use the surname of the illegitimate father when the latter has recognized the former in accordance with law. Since the choice belongs to the illegitimate child, Rodolfo cannot compel Rona, if already of age, to use his surname against her will.

1. 1. Section 1 0f P.D. NO. 755 states: Section 1. Declaration of National Policy - It is hereby declared that the policy of the State is to provide readily available credit facilities to the coconut farmers at preferential rates, that this policy can be expeditiously and efficiently realized by the implementation of the "Agreement for the Acquisition of a Commercial Bank for the Benefit of the Coconut Farmers' executed by the Philippine Coconut Authority, the terms of which 'Agreement' are hereby incorporated by reference; xxx" A copy of the Agreement was not attached to the Presidential Decree. P.D. No: 755 was published in the Official Gazette but the text of the Agreement described in Section 1 was not published. Can the Agreement in question be accorded the status of a law? Explain. (5%) (2016 Bar Question)

SUGGESTED ANSWER: No, the Agreement cannot be accorded the status of a law. Article 2 of the Civil Code provides that Jaws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazetté, unless it is otherwise provided. In Nagkakaisang Maralitav v Military Shrine Services (G.R. Nos. 187587 & 187654, June 5, 2013, 675 SCRA 359); the Supreme Court held that the addendum to the Proclamation issued by President Marcos has no force and effect considering that the same was not published in the Official Gazette. Moreover, the Supreme Court in Cojuangco, Jr. v. Republic (G.R. No. 180705, November 27, 2012, 686 SCRA 472), which is on all fours with this case, ruled that while the Agreement was incorporated by reference, it was not reproduced or attached as an annex to the law and therefore cannot be accorded to the status of a law. Publication of the full text of the law is indispensable for its effectivity.

* 22. Emmanuel and Margarita, American citizens and employees of the U.S. State Department, got married in the African state of Kenya where sterility is a ground for annulment of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in Manila. On the first year of the spouses' tour of duty in the Philippines, Margarita filed an annulment case against Emmanuel before a Philippine court on the ground of her husband's sterility at the time of the celebration of the marriage. x x x Assume Emmanuel and Margarita are both Filipinos. After their wedding in Kenya, they come back and take up residence in the Philippines. Can their marriage be annulled on the ground of Emmanuel's sterility? Explain. (2009 Bar Question)

SUGGESTED ANSWER: No, the marriage cannot be annulled under Philippine law. Sterility is not a ground for annulment of marriage under Article 45 of the Family Code. ALTERNATIVE ANSWER: No, the marriage cannot be annulled in the Philippines. The Philippine court shall have jurisdiction over the action to annul the marriage not only because the parties are residents of the Philippines but because they are Filipino citizens. The Philippine court, however, shall apply the law of the place where the marriage was celebrated in determining its formal validity. Since the marriage was celebrated in Kenya in accordance with Kenyan law, the formal validity of such marriage is governed by Kenyan law and any issue as to the formal validity of that marriage shall be determined by applying Kenyan law and not Philippine law. However, while Kenyan law governs the formal validity of the marriage, the legal capacity of the Filipino parties to the marriage is governed not by Kenyan law but by Philippine law. Sterility of a party as a ground for the annulment of marriage is not a matter of form but a matter of legal capacity. Since sterility does not constitute absence or defect in the legal capacity of the parties under Philippine law, there is no ground to avoid or annul the marriage.

* B) Assume Emmanuel and Margarita are both Filipinos. After their wedding in Kenya, they come back and take up residence in the Philippines. Can their marriage be annulled on the ground of Emmanuel's sterility? Explain. (2009 Bar Question)

SUGGESTED ANSWER: No, the marriage cannot be annulled under Philippine law. Sterility is not a ground for annulment of marriage under Article 45 of the Family Code. ALTERNATIVE ANSWER: No, the marriage cannot be annulled in the Philippines. While Kenyan law governs the formal validity of the marriage pursuant to Article 26 of the Family Code and Article 17 of the Civil Code, the legal capacity of the Filipino parties to the marriage is governed not by Kenyan law but by Philippine law (Article 15, NCC). Sterility of a party as a ground for the annulment of marriage is not a matter of form but a matter of legal capacity. Hence, in the present case, the Philippine court must apply Philippine law in determining the validity of the marriage. Since sterility does not constitute absence or defect in the legal capacity of the parties under Philippine law, there is no ground to avoid or annul the marriage and the Philippine court has to deny the petition.

* 30. The petitioner filed a petition for declaration of nullity of marriage based allegedly on the psychological incapacity of the respondent, but the psychologist was not able to personally examine the respondent and the psychological report was based only on the narration of petitioner. Should the annulment be granted? Explain. (2012 Bar Question)

SUGGESTED ANSWER: No. The annulment cannot be guaranteed solely on the basis of the psychological report. For the report to prove the psychological incapacity of the respondent, it is required that the psychologist should personally examine the respondent and the psychological report should be based on the psychologist's independent assessment of the facts as to whether or not the respondent is psychologically incapacitated. Since, the psychologist did not personally examine the respondent, and his report is based solely on the story of the petitioner who has an interest in the outcome of the petition, the marriage cannot be annulled on the ground of respondent's psychological incapacity if the said report is the only evidence of respondent's psychological incapacity.

* 28. You are a Family Court judge and before you is a Petition for the Declaration of Nullity of Marriage (under Article 36 of the Family Code) filed by Maria against Neil. Maria claims that Neil is psychologically incapacitated to comply with the essential obligations of marriage because Neil is a drunkard, a womanizer, a gambler, and a mama's boy- traits that she never knew or saw when Neil was courting her. Although summoned, Neil did not answer Maria's petition and never appeared in court. To support her petition, Maria presented three witnesses- herself, Dr. Elsie Chan, and Ambrosia. Dr. Chan testified on the psychological report on Neil that she prepared. Since Neil never acknowledged nor responded to her invitation for interviews, her report is solely based on her interviews with Maria and the spouses' minor children. Dr. Chan concluded that Neil is suffering from Narcissistic Personality Disorder, an ailment that she found to be already present since Neil's early adulthood and one that is grave and incurable. Maria testified on the specific instances when she found Neil drunk, with another woman, or squandering the family's resources in a casino. Ambrosia, the spouses' current household help, corroborated Maria's testimony. On the basis of the evidence presented, will you grant the petition? (2013 Bar Question)

SUGGESTED ANSWER: No. The petition should be denied. The psychological incapacity under Article 36 of the Family Code must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness (Republic v. CA and Molina, G.R. No. 108763 February 13, 1997). In this case, the pieces of evidence presented are not sufficient to conclude that indeed Niel is suffering from a psychological incapacity [Narcissistic Personality Disorder] existing already before the marriage, incurable and serious enough to prevent Neil from performing his essential marital obligations. Dr. Chan's report contains mere conclusions. Being a drunkard, a womanizer, a gambler and a mama's boy merely shows Neil's failure to perform his marital obligations. In a number of cases, the Supreme Court did not find the existence of psychological incapacity in cases where the respondents showed habitual drunkenness (Republic v. Melgar, G.R. No. 139676, March 31, 2006), blatant display of infidelity and irresponsibility (Dedel v. CA, G.R. No. 151867, January 29, 2004), or being hooked to gambling and drugs (Republic v. Tanyag-San Jose, G.R. No. 168328, February 28, 2007). ALTERNATIVE ANSWER: Yes, Petition should be granted. The personal medical Lito was a commercial pilot who flew for Pacific- Micronesian Air. In 1998, he was the co-pilot of the airline's Flight MA916 that mysteriously disappeared two hours after take-off from Agana, Guam, presumably over the Pacific Ocean. No trace of the plane and its 105 passengers and crew was ever found despite diligent search; Lito himself was never heard of again. Lito left behind his wife, Lita, and their two children.

* 19. If Henry, an American citizen residing in the Philippines, files a petition for change of name before a Philippine court, what law shall apply? Explain. (2009 Bar Question)

SUGGESTED ANSWER: Philippine law shall apply. The petition for change of name filed in the Philippines does not concern the legal capacity or status of the petitioner. Whatever judgment is rendered in the petition will have effect only in the Philippines. It will be limited to the records of the petitioner in the Philippines and all his transactions therein. The Philippine court can never acquire jurisdiction over the custodian of the petitioner's records in the U.S. Since the records and processes in the Philippines are the only ones affected, the Philippine court should apply Philippine law in resolving the petition. ALTERNATIVE ANSWER: U.S. Law shall apply as it is his national law. This is pursuant to the application of lex patriae or the nationality principle, by which his legal status is governed by national law, the matter of change of name being included in legal status. The Supreme Court has reiterated in several cases, that the lex patriae as provided in Article 15 of the Civil Code is applicable to foreign nationals in determining their legal status.

* 9. At age 18, Marian found out that she was pregnant. She insured her own life and named her unborn child as her sole beneficiary. When she was already due to give birth, she and her boyfriend Pietro, the father of her unborn child, were kidnapped in a resort in Bataan where they were vacationing. The military gave chase and after one week, they were found in an abandoned hut in Cavite. Marian and Pietro were hacked with bolos. Marian and the baby she delivered were both found dead, with the baby's umbilical cord already cut. Pietro survived. Will Pietro, as surviving biological father of the baby, be entitled to claim the proceeds of the life insurance on the life of Marian? (2008 Bar Question)

SUGGESTED ANSWER: Since the baby did not acquire any right under the insurance contract, there is nothing for Pietro to inherit.

* 15. TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. The doctrine of "processual presumption" allows the court of the forum to presume that the foreign law applicable to the case is the same as the local or domestic law. (2009 Bar Question)

SUGGESTED ANSWER: TRUE. If the foreign law necessary to resolve an issue is not proven as a fact, the court of the forum may presume that the foreign law is the same as the law of the forum.

* C) Eli and Fely's marriage solemnized seven years after the disappearance of Chona, Eli's previous spouse, after the plane she had boarded crashed in the West Philippine Sea. (2017 Bar Question)

SUGGESTED ANSWER: The marriage is void under Article 35(4) in relation to Article 41 of the Family Code. The requisites of a valid marriage under Article 41 are as follows: 1) the prior spouse had been absent for four consecutive years, except when the disappearance is in danger of death which only requires two years; 2) the present spouse had a well-founded belief that the absent spouse was already dead; and 3) the spouse present must institute a summary proceeding for declaration of presumptive death. There is nothing in the facts that suggest that Eli instituted a summary proceeding for declaration of presumptive death of her previous spouse and this cannot be presumed. Thus, the exception under Article 35(4) is inapplicable and the subsequent marriage is void. ALTERNATIVE ANSWER: If the marriage was celebrated under the New Civil Code, the marriage would be valid, as no declaration of presumptive death is necessary under Article 391 of the said Code.

* 20. Write "TRUE' if the statement is true or "FALSE" if the statement is false. If the statement is FALSE, state the reason. Roberta, a Filipino, 17 years of age, without the knowledge of his parents, can acquire a house in Australia because Australian Laws allow aliens to acquire property from the age of 16. (2007 Bar Question)

SUGGESTED ANSWER: TRUE. Since Australian Law allows aliens to acquire property from the age of 16, Roberta may validly own a house in Australia, following the principle of lex rei sitae enshrined in Article 16, NCC which states: "Real property as well as personal property is subject to the law of the country where it is situated." Moreover, even assuming that legal capacity of Roberta in entering the contract in Australia is governed by Philippine law under Article 15, NCC, the contract of sale is not void but merely voidable under the NCC. Hence, even under Philippine law, she will acquire ownership over the property she bought until the contract is annulled. ALTERNATIVE ANSWER: FALSE. The Civil Code provides that laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad. (Art. 15, NCC) The age of majority under Philippine law is 18 years (Rep. Act No. 6809), hence, Roberta, being only 17 years old, has no legal capacity to acquire and own land.

* 6. At age 18, Marian found out that she was pregnant. She insured her own life and named her unborn child as her sole beneficiary. When she was already due to give birth, she and her boyfriend Pietro, the father of her unborn child, were kidnapped in a resort in Bataan where they were vacationing. The military gave chase and after one week, they were found in an abandoned hut in Cavite. Marian and Pietro were hacked with bolos. Marian and the baby she delivered were both found dead, with the baby's umbilical cord already cut. Pietro survived. (2008 Bar Question) * A) Can Marian's baby be the beneficiary of the insurance taken on the life of the mother?

SUGGESTED ANSWER: The Civil Code provides that an unborn child shall be considered a person for purposes favorable to it provided it is born later in accordance with the conditions laid down in the Civil Code. There is thus no doubt that an unborn child may be designated as the beneficiary in the insurance policy of the mother, such being favorable to it. However, whether said unborn child can acquire rights to the proceeds of the insurance policy depends on certain conditions. Since the baby had an intrauterine life of more than 7 months, it would be considered born if it was alive at the time of its complete delivery from the mother's womb. If the baby was not alive when completely delivered from the mother's womb, it was not born as a person. We can gather from the facts that the baby was completely delivered but whether or not it was alive has to be proven by evidence. There being no mention of any such evidence, then Marian's baby did not acquire any right under the insurance policy.

* 13. Ana Rivera had a husband, a Filipino citizen like her, who was among the passengers on board a commercial jet plane which crashed in the Atlantic Ocean ten(10) years earlier and had never been heard of ever since. Believing that her husband had died, Ana married Adolf Cruz Staedtler, a divorced German national born of a German father and a Filipino mother residing in Stuttgart. To avoid being required to submit the required certificate of capacity to marry from the German Embassy in Manila, Adolf stated in the application for marriage license that he was a Filipino citizen. With the marriage license stating that Adolf was a Filipino, the couple got married in a ceremony officiated by the Parish Priest of Calamba, Laguna in a beach in Nasugbu, Batangas, as the local parish priest refused to solemnize marriages except in his church. Is the marriage valid? Explain fully. (2008 Bar Question)

SUGGESTED ANSWER: The issue hinges on whether or not the missing husband was dead or alive at the time of the second marriage. If the missing husband was in fact dead at the time the second marriage was celebrated, the second marriage was valid. Actual death of a spouse dissolves the marriage ipso facto whether or not the surviving spouse had knowledge of such fact. A declaration of presumptive death even if obtained will not make the marriage voidable because presumptive death will not prevail over the fact of death. If the missing husband was in fact alive when the second marriage was celebrated, the second marriage was void ab initio because of a prior subsisting marriage. Had Ana obtained a declaration of presumptive death, the second marriage would have been voidable. In both cases, the fact that the German misrepresented his citizenship to avoid having to present his Certificate of Legal Capacity, or the holding of the ceremony outside the church or beyond the territorial jurisdiction of the solemnizing officer, are all irregularities which do not affect the validity of the marriage.

* D) David who married Lina immediately the day after obtaining a judicial decree annulling his prior marriage to Elisa. (2017 Bar Question)

SUGGESTED ANSWER: The marriage is valid as there were no facts showing that David and Elisa have properties and children, which would render the marriage void under Article 53 of the Family Code in relation to Article 52. In addition, David and Lina have no impediment to marry. ALTERNATIVE ANSWER: If the spouses have properties and children, the marriage is void. For a marriage subsequent to a judgment of annulment of a previous marriage to be valid, the properties of the spouses must have been partitioned and distributed, the presumptive legitimes of children, if any, must have been delivered, and the aforementioned facts must be recorded in the civil registry and registries of property. The marriage was entered into the day after the obtaining a judicial decree of annulment and it would have been impossible for David to comply with the requirements in such a short time.

* 17. In December 2000, Michael and Anna, after obtaining a valid marriage license, went to the Office of the Mayor of Urbano, Bulacan, to get married. The Mayor was not there, but the Mayor's secretary asked Michael and Anna and their witnesses to fill up and sign the required marriage contract forms. The secretary then told them to wait, and went out to look for the Mayor who was attending a wedding in a neighboring municipality. When the secretary caught up with the Mayor at the wedding reception, she showed him the marriage contract forms and told him that the couple and their witnesses were waiting in his office. The Mayor forthwith signed all the copies of the marriage contract, gave them to the secretary who returned to the Mayor's office.' She then gave copies of the marriage contract to the parties, and told Michael and Anna that they were already married. Thereafter, the couple lived together as husband and wife, and had three sons. Is the marriage of Michael and Anna valid, voidable, or void? Explain your answer. (2009 Bar Question)

SUGGESTED ANSWER: The marriage is void because the formal requisite of marriage ceremony was absent (Art. 3, F.C. 209, Family Code). ALTERNATIVE ANSWER: The marriage is void because an essential requisite was absent: consent of the parties freely given in the presence of the solemnizing officer (Art. 2, FC).

1. E. Property relations between husband and wife 2. 1. General provisions * 52. In the absence of contrary stipulation in a marriage settlement, property relations of Filipino spouses shall be governed by: (2012 Bar Question) * A) Philippines laws * B) Law of the place where the spouses reside * C) Law of the place where the properties are situated * D) Law of the place where they were married.

SUGGESTED ANSWER: A.

4. Void and voidable marriages * 23. State whether the following marital unions are valid, void, or voidable, and give the corresponding justifications for your answer: * A) Ador and Becky's marriage wherein Ador was afflicted with AIDS prior to the marriage. (2017 Bar Question)

SUGGESTED ANSWER: The marriage is voidable, because Ador was afflicted with a serious and incurable sexually-transmitted disease at the time of marriage. For a marriage to be annulled under Article 45(6), the sexually-transmissible disease must be: 1) existing at the time of marriage; 2) found to be serious and incurable; and 3) unknown to the other party. Since Ador was afflicted with AIDS, which is a serious and incurable disease, and the condition existed at the time of marriage, the marriage is voidable, provided that such illness was not known to Becky._

3. Absolute Community of Property 60. 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. (2015 Bar Question)

SUGGESTED ANSWER: 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, Family Code).

* 45. Write "TRUE' if the statement is true or "FALSE" if the statement is false. If the statement is FALSE, state the reason. xxx Amor gave birth to Thelma when she was 15 years old. Thereafter, Amor met David and they got married when she was 20 years old. David had a son, Julian, with his ex-girlfriend Sandra. Julian and Thelma can get married. (2007 Bar Question)

SUGGESTED ANSWER: True. Julian and Thelma can get married. Marriages between stepbrothers and stepsisters are not among the marriages prohibited under the Family Code.

* B) Instead of a judicial action, can administrative proceedings be brought for the purpose of making the above corrections? (2008 Bar Question)

SUGGESTED ANSWER: Under R.A. 9048, only typographical errors are allowed to be corrected administratively. The change of status from legitimate to illegitimate is not a typographical error and even assuming that it is, its administrative correction is not allowed under R.A. 9048. Typographical errors involving status, age, citizenship, and gender are expressly excluded from what may be corrected administratively. The change of the surname is also not allowed administratively. R.A. 9048 provides for an administrative procedure for change of first name only and not for change of surname.

* B. Conflict of laws (Private International Law) * 5. Ted, married to Annie, went to Canada to work. Five (5) years later, Ted became a naturalized Canadian citizen. He returned to the Philippines to convince Annie to settle in Canada. Unfortunately, Ted discovered that Annie and his friend Louie were having an affair. Deeply hurt, Ted returned to Canada and filed a petition for divorce which was granted. In December 2013, Ted decided to marry his childhood friend Corazon in the Philippines. In preparation for the wedding, Ted went to the Local Civil Registry of Quezon City where his marriage contract with Annie was registered. He asked the Civil Register to annotate the decree of divorce on his marriage contract with Annie. However, he was advised by the National Statistics Office (NSO) to file a petition for judicial recognition of the decree of divorce in the Philippines. Is it necessary for Ted to file a petition for judicial recognition of the decree of divorce he obtained in Canada before he can contract a second marriage in the Philippines? (2014 Bar Question)

SUGGESTED ANSWER: YES, a divorce decree even if validly obtained abroad cannot have effect in the Philippines unless it is judicially recognized through an appropriate petition filed before Philippine courts. The foreigner must file a petition under Rule 108 and prove therein the fact of divorce by presenting an official copy attested by the officer having custody of the original. He must also prove that the court which issued the divorce has jurisdiction to issue it and the law of the foreign country on divorce (Corpuz v. Sto. Tomas, G.R. No. 186571, August 11, 2010).

1. 2. Is it necessary for Ted to file a petition for judicial recognition of the decree of divorce he obtained in Canada before he can contract a second marriage in the Philippines? (2014 Bar Question)

* C) Harry tells you that he has fallen in love with another woman, Elizabeth, and wants to marry her because, after all, Wilma is already married to Joseph. Can Harry legally marry Elizabeth? Explain. (2009 Bar Question)

SUGGESTED ANSWER: Yes, he can validly marry Elizabeth. In Republic v. Obrecido, the Supreme Court ruled that a Filipino spouse is given the capacity to remarry even though the spouse who obtained the divorce was a Filipino at the time of the marriage, if the latter was already a foreigner when the divorce was obtained abroad. According to the Court, to rule otherwise will violate the equal protection clause of the Constitution.

* 53. What happens to the property regimes that were subsisting under the New Civil Code when the Family Code took effect? (2011 Bar Question) * A) The original property regimes are immutable and remain effective. * B) Those enjoying specific regimes under the New Civil Code may adopt the regime of absolute community of property under the Family Code. * C) Those that married under the New Civil Code but did not choose any of its regimes shall now be governed by the regime of absolute community of property. * D) They are superseded by the Family Code which has retroactive effect.

SUGGESTED ANSWER: A.

What is the status of the marriage between Charice and Bugoy under Philippine laws? (2012 Bar Question) * A) Valid * B) Void * C) Voidable * D) Dissolved

SUGGESTED ANSWER: A.

* 16. On December 1, 2000, Dr. Juanito Fuentes executed a holographic will, wherein he gave nothing to his recognized illegitimate son, Jay. Dr. Fuentes left for the United States, passed the New York medical licensure examinations, resided therein, and became a naturalized American citizen. He died in New York in 2007. The laws of New York do not recognize holographic wills or compulsory heirs. (2009 Bar Question) * A) Can the holographic will of Dr. Fuentes be admitted to probate in the Philippines? Why or why not?

SUGGESTED ANSWER: Yes, the holographic will of Dr. Fuentes may be admitted to probate in the Philippines. As a general rule, the only issue at probate is the due execution of the will which involves its formal validity. As regards formal validity, the only issue the court will resolve at probate is whether or not the will was executed in accordance with the form prescribed by the law observed by the testator in the execution of his will. For purposes of probate in the Philippines, an alien testator may observe the law of the place where the will was executed (Article 17, NCC), or the formalities of the law of the place where he resides, or according to the formalities of the law of his own country, or in accordance with the Philippine Civil Code (Art. 816, NCC). Since Dr. Fuentes executed his will in accordance with Philippine law, the Philippine court shall apply the New Civil Code in determining the formal validity of the holographic will. The subsequent change in the citizenship of Dr. Fuentes did not affect the law governing the validity of his will. Under the New Civil Code, which was the law used by Dr. Fuentes, the law in force at the time of execution of the will shall govern the formal validity of the will (Article 795, NCC).

* 27. Miko and Dinah started to live together as husband and wife without the benefit of marriage in 1984. Ten (10) years after, they separated. In 1996, they decided to live together again, and in 1998, they got married. On February 17, 2001, Dinah filed a complaint for declaration of nullity of her marriage with Miko on the ground of psychological incapacity under Article 36 of the Family Code. The court rendered the following decision: "1. Declaring the marriage null and void; * 2. Dissolving the regime of absolute community of property; and * 3. Declaring that a decree of absolute nullity of marriage shall only be issued after liquidation, partition and distribution of the parties' properties under Article 147 of the Family Code." Dinah filed a motion for partial reconsideration questioning the portion of the decision on the issuance of a decree of nullity of marriage only after the liquidation, partition and distribution of properties under Article 147 of the Code. If you are the judge, how will you decide petitioner's motion for partial reconsideration? Why? (2014 Bar Question)

SUGGESTED ANSWER: I will grant partial reconsideration. If the marriage is declared void under Art. 36, the provisions of the Family Code on liquidation, partition, and distribution of the properties on absolute community or conjugal partnership will not apply but rather Art. 147 or 148 depending on the presence or absence of a legal impediment between them. In Diño v. Diño, the SC ruled that Art. 50 of the FC and Section 19 of the Rules on Declaration of Nullity applies only to marriages which are declared void ab initio or annulled by final judgment under Arts. 40 and 45 of the FC. In short, Art. 50 of the FC does not apply to marriages which are declared void ab initio under Art. 36 of the FC which should be declared void without waiting for the liquidation of the properties of the parties.

* 43. Despite several relationships with different women, Andrew remained unmarried. His first relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him two daughters: Vina and Wilma. His fourth, with Elena, bore him no children although Elena has a daughter Jane, from a previous relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy, now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to Sandy's birth. All the children, including Amy, now live with Andrew in his house. xxx Can Jon and Jane legally marry? (2008 Bar Question)

SUGGESTED ANSWER: Jon and Jane can legally marry because they are not related to each other. Jane is not a daughter of Andrew.

* 17. Emmanuel and Margarita, American citizens and employees of the U.S. State Department, got married in the African state of Kenya where sterility is a ground for annulment of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in Manila. On the first year of the spouses' tour of duty in the Philippines, Margarita filed an annulment case against Emmanuel before a Philippine court on the ground of her husband's sterility at the time of the celebration of the marriage. * A) Will the suit prosper? Explain your answer. (2009 Bar Question)

SUGGESTED ANSWER: No, the suit will not prosper. As applied to foreign nationals with respect to family relations and status of persons, the nationality principle set forth in Article 15 of the Civil Code will govern the relations of Emmanuel and Margarita. Since they are American citizens, the governing law as to the ground for annulment is not Kenyan law which Margarita invokes in support of sterility as such ground; but should be U.S. law, which is the national law of both Emmanuel and Margarita as recognized under Philippine law. The nationality principle as expressed in the application of national law of foreign nationals by Philippine courts is established by precedents. ALTERNATIVE ANSWER: The forum where an action for the annulment of marriage solemnized elsewhere is filed has jurisdiction only when the party bringing the action is domiciled in the forum. In this case, none of the parties to the marriage is domiciled in the Philippines. They are here as officials of the US Embassy whose stay in the country is merely temporary, lasting only during their fixed tour of duty. Hence, the Philippine courts have no jurisdiction over the action.

* B) Carlos' marriage to Dina which took place after Dina had poisoned her previous husband Edu in order to free herself from any impediment in order to live with Carlos. (2017 Bar Question)

SUGGESTED ANSWER: The marriage of Carlos to Dina is void for reasons of public policy. Article 38(9) of the Family Code provides that marriage between parties where one, with the intention to marry the other, killed that other person's spouse or his or her own spouse is void from the beginning for reasons of public policy.

* 54. X and Y agreed verbally before their marriage (a) on the paternity of the illegitimate child of Y and (b) on the economic regime that will govern X and Y's property relations. Is the verbal agreement valid? (2011 Bar Question) * A) No, because a marriage settlement to be valid should be in writing. * B) Yes, since ante-nuptial agreements need not be in writing. * C) No, because a marriage settlement cannot include an agreement on the paternity of an illegitimate child. * D) Yes, since even if it is not a valid marriage settlement, it is a valid verbal contract.

SUGGESTED ANSWER: A.

2. Exemption from license requirement 18. Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started to live together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the marriage, Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick and in one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a marriage license, claiming that they have been continuously cohabiting for more than 5 years. Was the marriage of Roderick and Faye valid? (2008 Bar Question)

SUGGESTED ANSWER: The marriage was void because there was no marriage license. Their marriage was not exempt from the requisite of a marriage license because Roderick and Faye have not been cohabiting for at least 5 continuous years before the celebration of their marriage. Their lovers' tryata and brief visitations did not amount to "cohabitation". Moreover, the Supreme Court held that for the marriage to be exempt from a license, there should be no impediment for them to marry each other during the entire 5 years of cohabitation. Roderick and Faye could not have cohabited for 5 continuous years without impediment because Faye was then legally married to Brad.

* 12. A French national revokes his will in Japan where he is domiciled. He then changed his domicile to the Philippines where he died. The revocation of his will in Japan is valid under Japanese law but invalid under Philippine law. The affected heir is a Malaysian national residing in the Philippines. What law will apply? (2012 Bar Question) * A) Japanese law * B) Philippine law * C) French law * D) Malaysian law

SUGGESTED ANSWER: A.

* 23. Janice and Jennifer are sisters. Janice sued Jennifer and Laura, Jennifer's business partner for recovery of property with damages. The complaint did not allege that Janice exerted earnest efforts to come to a compromise with the defendants and that such efforts failed. The judge dismissed the complaint outright for failure to comply with a condition precedent. Is the dismissal in order? (2011 Bar Question) * A) No, since Laura is a stranger to the sisters, Janice has no moral obligation to settle with her. * B) Yes, since court should promote amicable settlement among relatives. * C) Yes, since members of the same family, as parties to the suit, are required to exert earnest efforts to settle their disputes before coming to court. * D) No, the family council, which would ordinarily mediate the dispute, has been eliminated under the Family Code.

SUGGESTED ANSWER: A.

* 32. Agay, a Filipino citizen and Topacio, an Australian citizen, got married in the consular office of the Philippines in Australia. According to the laws of Australia, a marriage solemnized by a consular official is valid, provided that such marriage is celebrated in accordance with the laws of such consular official. Under Philippine law, what is the status of the marriage of Agay and Topacio? Choose the best answer. (2012 Bar Question) * A) Void, because the consular official only has authority to solemnize marriages between Filipinos. * B) Valid, because according to the laws of Australia, such consular official has authority to celebrate the marriage. * C) Voidable, because there is an irregularity in the authority of the consular official to solemnize marriages. * D) Valid, because such marriage is recognized as valid in the place where it was celebrated.

SUGGESTED ANSWER: A.

* 37. Conrad and Linda, both 20 years old, applied for a marriage license, making it appear that they were over 25. They married without their parents' knowledge before an unsuspecting judge. After the couple has been in cohabitation for 6 years, Linda's parents filed an action to annul the marriage on ground of lack of parental consent. Will the case prosper? (2011 Bar Question) * A) No, since only the couple can question the validity of their marriage after they became 21 of age; their cohabitation also convalidated the marriage. * B) No, since Linda's parents made no allegations that earnest efforts have been made to come to a compromise with Conrad and Linda and which efforts failed. * C) Yes, since the marriage is voidable, the couple being below 21 years of age when they married. * D) Yes, since Linda's parents never gave their consent to the marriage.

SUGGESTED ANSWER: A.

* 38. Joseph, a 17-year old Filipino, married Jenny, a 21-year old American in Illinois, USA, where the marriage was valid. Their parents gave full consent to the marriage of their children. After three years, Joseph filed a petition in the USA to promptly divorce Jenny and this was granted. When Joseph turned 25 years, he returned to the Philippines and married Leonora. What is the status of this second marriage? (2011 Bar Question) * A) Void, because he did not cause the judicial issuance of declaration of the nullity of his first marriage to Jenny before marrying Leonora. * B) Valid, because Joseph's marriage to Jenny is void, he being only 17 years of age when he married her. * C) Valid, because his marriage to Leonora has all the elements of a valid marriage. * D) Void, because Joseph is still considered married to Jenny since the Philippines does not recognize divorce.

SUGGESTED ANSWER: A.

* 40. Rene and Lily got married after a brief courtship. After one month, Lily discovered that while Rene presented himself as a macho man he was actually gay. He would not go to bed with her. He kept obscene magazines of nude men and always sought the company of handsome boys. What legal remedy does Lily have? (2011 Bar Question) * A) She can file an action for annulment of marriage on ground of fraud. * B) She can seek a declaration of nullity of the marriage based on Rene's psychological incapacity. * C) She can go abroad and file for divorce in a country that can grant it. * D) She has none since she had the opportunity to examine the goods and freely entered into the marriage.

SUGGESTED ANSWER: A.

* 42. QR and TS who had a marriage license requested a newly appointed Judge in Manila to marry them on the beach of Boracay. Since the Judge maintained Boracay as his residence, he agreed. The sponsors were all public officials. What is the status of the marriage? (2011 Bar Question) * A) Valid, since the improper venue is merely an irregularity; all the elements of a valid marriage are present. * B) Void, because the couple did not get local permit for a beach wedding. * C) Voidable, because the Judge acted beyond his territorial jurisdiction and is administratively liable for the same. * D) Void, because the Judge did not solemnize the marriage within the premises of his court.

SUGGESTED ANSWER: A.

What is the status of the marriage between Justine and Lea under Philippine laws? (2012 Bar Question) * A) Valid * B) Void * C) Voidable * D) Dissolved

SUGGESTED ANSWER: A.

* 8. Even if the applicable law is a foreign law, a count in the Philippines may be constrained to apply Philippine law under any of the following instances, except: (2012 Bar Question) * A) when the foreign law, judgment or contract is contrary to a sound and important public policy of the forum; * B) when the property subject of the case is located outside of the Philippines; * C) when the foreign law or judgment is penal in nature; * D) when the foreign law is procedural in nature.

SUGGESTED ANSWER: B.

* 39. Josie, 18, married Dante, 25, without her parents' knowledge and consent, and lived with him. After a year, Josie returned to her parents' home, complained of the unbearable battering she was getting from Dante, and expressed a desire to have her marriage with him annulled. Who may bring the action? (2011 Bar Question) * A) Dante. * B) Her parents. * C) Josie herself. * D) The State.

SUGGESTED ANSWER: B.

* 41. Manuel came to Manila and married Marianne. Unknown to Marianne, Manuel had been previously convicted in Palawan of theft and served time for it. After Marianne learned of his previous conviction, she stopped living with him. Can Marianne seek the annulment of the marriage based on Manuel's nondisclosure of his previous crime? (2011 Bar Question) * A) No, since the assumption is that marriage forgives all past wrongs. * B) Yes, since the non-disclosure of that crime is the equivalent of fraud, which is a ground for annulment. * C) No, in case of doubt, the law must be construed to preserve the institution of marriage. * D) No, since Manuel already served the penalty for his crime.

SUGGESTED ANSWER: B.

* 48. The wife filed a case of legal separation against her husband on the ground of sexual infidelity without previously exerting earnest efforts to come to a compromise with him. The judge dismissed the case for having been filed without complying with a condition precedent. Is the dismissal proper? (2011 Bar Question) * A) No, efforts at a compromise will only deepen the wife's anguish. * B) No, since legal separation like validity of marriage is not subject to compromise agreement for purposes of filing. * C) Yes, to avoid a family feud that is hurtful to everyone. * D) Yes, since the dispute could have been settled with the parties agreeing to legal separation.

SUGGESTED ANSWER: B.

* 49. No decree of legal separation can be issued: (2011 Bar Question) * A) unless the children's welfare is attended to first. * B) without prior efforts at reconciliation shown to be futile. * C) unless the court first directs mediation of the parties. * D) without prior investigation conducted by a public prosecutor.

SUGGESTED ANSWER: B.

* 56. X and Y, both Filipinos, were married and resided in Spain although they intend to return to the Philippines at some future time. They have not executed any marriage settlements. What law governs their property relations? (2011 Bar Question) * A) They may choose between Spanish law and Philippine law. * B) Philippine law since they are both Filipinos. * C) No regime of property relations will apply to them. * D) Spanish law since they live in Spain.

SUGGESTED ANSWER: B.

* 6. This attribute or incident of a case determine whether it is a conflict-of-laws case or one covered by domestic law. (2012 Bar Question) * A) Cause of action * B) Foreign element * C) Jurisdiction * D) Forum non conveniens

SUGGESTED ANSWER: B.

* 62. Audrey, single, bought a parcel of land in Malolos City from Franco for P 1Million. A contract was executed between them which already vested upon Audrey full ownership of the property, although payable in monthly installments for a period of four (4) years. One (1) year after the execution of the contract, Audrey got married to Arnel. They executed a marriage settlement whereby they agreed that their properties shall be governed by the regime of conjugal partnership of gains. Thereafter, subsequent installments were paid from the conjugal partnership funds. Is the land conjugal or paraphernal? (2011 Bar Question) * A) The land is conjugal because the installments were paid from the conjugal partnership funds. * B) The land is paraphernal because ownership thereof was acquired before the marriage. * C) The land is both conjugal and paraphernal funds of installments were paid from both the personal funds of Audrey and the conjugal partnership funds. * D) The land is paraphernal because it was Audrey who purchased the same.

SUGGESTED ANSWER: B.

2. Donations by reason of marriage * 58. Which of the following is not a requisite for a valid donation propter nuptias? (2012 Bar Question) * A) The donation must be made before the celebration of the marriage. * B) The donation shall be automatically revoked in case of non-celebration of the marriage. * C) The donation must be made in consideration of the marriage. * D) The donation must be made in favor of one or both of the future spouses.

SUGGESTED ANSWER: B.

2. Use of surnames * 7. Illegitimate children, those not recognized by their biological fathers, shall use the surname of their: (2011 Bar Question) * A) biological father subject to no condition. * B) mother or biological father, at the mother's discretion. * C) mother. * D) biological father unless he judicially opposes it.

SUGGESTED ANSWER: B.

* 10. A Japanese national and a Filipino national entered into a contract for services in Thailand. The services will be rendered in Singapore. In case of breach, what law will govern? (2012 Bar Question) * A) Thailand law * B) Philippine law * C) Singapore law * D) Japanese law

SUGGESTED ANSWER: C.

* 11. Pedro (Filipino) and his wife Jane (American) executed a joint will in Canada, where such joint will is valid. In case the joint will is probated in Japan, what law will govern the formalities of the joint will? (2012 Bar Question) * A) American law * B) Philippine law * C) Canadian law * D) Japanese law

SUGGESTED ANSWER: C.

* 16. X and Y, Filipinos, got married in Los Angeles, USA, using a marriage license issued by the Philippine consul in Los Angeles, acting as Civil Registrar. X and Y did not know that they were first cousins because their mothers, who were sisters, were separated when they were quite young. Since X did not want to continue with the relation when he heard of it, he left Y, came to the Philippines and married Z. Can X be held liable for bigamy? (2011 Bar Question) * A) No since X's marriage to Y is void ab initio or did not exist. * B) No since X acted in good faith, conscious that public policy did not approve of marriage between first cousins. * C) Yes since he married Z without first securing a judicial declaration of nullity of his marriage to Y. * D) Yes since his first marriage to Y in Los Angeles is valid.

SUGGESTED ANSWER: C.

* 3. Because of X's gross negligence, Y suffered injuries that resulted in the abortion of the foetus she carried. Y sued X for, among other damages, P1 million for the death of a family member. Is Y entitled to indemnity for the death of the foetus she carried? (2011 Bar Question) * A) Yes, since the foetus is already regarded as a child from conception, though unborn. * B) No, since X's would not have known that the accident would result in Y's abortion. * C) No, since birth determines personality, the accident did not result in the death of a person. * D) Yes, since the mother believed in her heart that she lost a child.

SUGGESTED ANSWER: C.

* 31. Ricky and Princess were sweethearts. Princess became pregnant. Knowing that Ricky is preparing for the examinations, Marforth, a lawyer and cousin of Princess, threatened Ricky with the filing of a complaint for immorality in the Supreme Court, thus preventing him from taking examinations unless he marries Princess. As a consequence of the threat, Ricky married Princess. Can the marriage be annulled on the ground of intimidation under Article 45 of the Family Code? Choose the best answer. (2012 Bar Question) * A) Yes, because without the threat, Ricky would not have married Princess. * B) Yes, because the threat to enforce the claim of Princess vitiates the consent of Ricky in contracting the marriage. * C) No, because the threat made by Marforth is just and legal. * D) No, because Marforth is not a party to the contract of marriage between Princess and Ricky.

SUGGESTED ANSWER: C.

* 34. Which of the following marriages is void for reasons of public policy? (2012 Bar Question) * A) Between brothers and sisters, whether of the full or half blood. * B) Between step-parents and step children. * C) Between parents-in-law and children-in-law. * D) b and c

SUGGESTED ANSWER: C.

* 4. Absence * a. Civil code provisions * 11. When does a declaration of absence of a missing person take effect? (2011 Bar Question) * A) Immediately from the issuance of the declaration of absence. * B) 3 months after the publication of the declaration of absence. * C) 6 months after the publication of the declaration of absence. * D) 15 days from the issuance of the declaration of absence.

SUGGESTED ANSWER: C.

* 55. X insured himself for P5 million, designating Y, his wife, as his sole beneficiary. The designation was irrevocable. A few years later, X had their marriage annulled in court on the ground that Y had an existing prior marriage. X subsequently died, Is Y entitled to the insurance benefits? (2011 Bar Question) * A) Yes, since the insurance was not dependent on the marriage. * B) Yes, since her designation as beneficiary was irrevocable. * C) No, X's designation of Y is revoked by operation of law upon the annulment of their marriage based on Y's fault. * D) Yes, since without judicial revocation, X's designation of Y remains valid and binding.

SUGGESTED ANSWER: C.

1. D. Rights and obligations between husband and wife * 51. The husband's acts of forcibly ejecting his wife without just cause from the conjugal dwelling and refusing to take her back constitutes: (2011 Bar Question) * A) desertion. * B) recrimination. * C) constructive abandonment. * D) de facto separation.

SUGGESTED ANSWER: C.

* 13. Pedro (Filipino) and Bill (American) entered into a contract in Australia, whereby it was agreed that Pedro will build a commercial building for Bill in the Philippines, and in payment for the construction, Bill will transfer and convey his cattle ranch located in Japan in favor of Pedro. In case Pedro performs his obligation, but Bill fails or refuses to pay, what law will govern? (2012 Bar Question) * A) American law * B) Philippine law * C) Australian law * D) Japanese law

SUGGESTED ANSWER: D.

* 33. A marriage is void if: (2012 Bar Question) * A) solemnized with a marriage license issued without complying with the required 10-day posting. * B) solemnized by a minister whom the parties believe to have the authority. * C) between parties both 23 years of age but without parental advice. * D) none of the above.

SUGGESTED ANSWER: D.

* 35. The following constitute the different circumstances or case of fraud which will serves as ground for the annulment of a marriage, except? (2012 Bar Question) * A) Non-disclosure of the previous conviction by final judgment of the other party of a crime involving moral turpitude. * B) Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of the marriage. * C) Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of marriage. * D) Concealment by the wife or the husband of the fact of sexual relations prior to the marriage.

SUGGESTED ANSWER: D.

* 36. In 1989, Charice (Filipina) and Justine (American), were married in the Philippines. In 1990, they separated and Justine went to Las Vegas where he obtained a divorce in the same year. He then married another Filipina, Lea, in Canada on January 1, 1992. They had two (2) sons, James and John (who were both born in 1992). In 1993, after failing to hear from Justine, Charice married Bugoy (a Filipino), by whom she had a daughter, Regine. In 2009, Regine married James (son of Justine with Lea) in California, where such marriage is valid. What is the current status of the marriage of Charice and Justine under Philippine laws? (2012 Bar Question) * A) Valid * B) Void * C) Voidable * D) Dissolved

SUGGESTED ANSWER: D.

* 4. Birth determines personality. Death extinguishes it. Under what circumstances may the personality of a deceased person continue to exist? (2011 Bar Question) * A) In case of re-appearance of a missing person presumed dead. * B) In protecting the works of a deceased under intellectual property laws. * C) In case of declaration of presumptive death of a missing spouse. * D) In the settlement of the estate of a deceased person.

SUGGESTED ANSWER: D.

* 47. In legal separation, which is not correct? (2012 Bar Question) * A) The aggrieved spouse may file the action within five (5) years from the time of the occurrence of the cause. * B) No trial shall be held without the 6-month cooling off period being observed. * C) The spouses will be entitled to live separately upon the start of the trial. * D) The prosecuting attorney has to conduct his own investigation.

SUGGESTED ANSWER: D.

* 57. The husband assumed sole administration of the family's mango plantation since his wife worked abroad. Subsequently, without his wife's knowledge, the husband entered into an antichretic transaction with a company, giving it possession and management of the plantation with power to harvest and sell the fruits and to apply the proceeds to the payment of a loan he got. What is the standing of the contract? (2011 Bar Question) * A) It is void in the absence of the wife's consent. * B) It is void absent an authorization from the court. * C) The transaction is void and can neither be ratified by the wife nor authorized by the court. * D) It is considered a continuing offer by the parties, perfected only upon the wife's acceptance or the court's authorization.

SUGGESTED ANSWER: D.

* 63. A husband by chance discovered hidden treasure on the paraphernal property of his wife. Who owns the discovered treasure? (2011 Bar Question) * A) The half pertaining to the husband (finder) belongs to the conjugal partnership. * B) The half pertaining to the wife (as owner) belongs to the conjugal partnership. * C) One half shall belong to the husband as finder and the other half shall belong to the wife as owner of the property. * D) a and b

SUGGESTED ANSWER: D.

* 9. If a will is executed by a testator who was born a Filipino citizen but became naturalized Japanese citizen at the time of his death, what law will govern its testamentary provisions if the will is executed in China and the property being disposed is located in Indonesia? (2012 Bar Question) * A) Chinese law * B) Philippine law * C) Indonesia law * D) Japanese law

SUGGESTED ANSWER: D.

* I. PERSONS AND FAMILY RELATIONS 1. A. Persons 2. 1. Civil personality * 1. Which of the following is NOT included in the attributes of juridical capacity? (2012 Bar Question) * A) Juridical capacity is inherent in every natural person, and therefore it is not acquired. * B) Juridical capacity is lost only through death. * C) Juridical capacity is the fitness to be the subject of legal relations. * D) Juridical capacity cannot exist without capacity to act.

SUGGESTED ANSWER: D.

* b. Presumptive death of absent spouse under the Family Code * 12. When can a missing person who left someone to administer his property be declared an absentee by the court? When he has been missing for: (2011 Bar Question) * A) 2 years from the receipt of the last news about him. * B) 7 years from the receipt of the last news about him. * C) 10 years from the receipt of the last news about him. * D) 5 years from the receipt of the last news about him.

SUGGESTED ANSWER: D.

1. 3. Congress passed a law imposing taxes on income earned out of a particular activity that was not previously taxed. The law, however, taxed incomes already earned within the fiscal year when the law took effect. Is the law valid? (2011 Bar Question) * A) No, because laws are intended to be prospective, not retroactive. * B) No, the law is arbitrary in that it taxes income that has already been spent. * C) Yes, since tax laws are the lifeblood of the nation. * D) Yes, tax laws are an exception; they can be given retroactive effect.

SUGGESTED ANSWER: D.

1. 4. The doctrine of stare decisis prescribes adherence to precedents in order to promote the stability of the law. But the doctrine can be abandoned: (2011 Bar Question) * A) When adherence to it would result in the Government's loss of its case. * B) When the application of the doctrine would cause great prejudice to a foreign national. * C) When necessary to promote the passage of a new law * D) When the precedent has ceased to be beneficial and useful.

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