AN ACT AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE “INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES”, AND FOR OTHER PURPOSES

SECTION 1. Section 6 of Republic Act No. 8293, otherwise known as the “Intellectual Property Code of the Philippines”, is hereby amended to read as follows:

“SEC. 6. The Organizational Structure of the IPO. – x x x

“6.2. The Office shall be divided into seven (7) Bureau, each of which shall be headed by a Director and assisted by an Assistant Director. These Bureau are:

“x x x

“(f) The Administrative, Financial and Personnel Services Bureau; and

“(g) The Bureau of Copyright and Other Related Rights.”

SEC. 2. Section 7 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 7. The Director General and Deputies Director General. –

“x x x

“(b) Exercise exclusive appellate jurisdiction over all decisions rendered by the Director of Legal Affairs, the Director of Patents, the Director of Trademarks, the Director of Copyright and Other Related Rights, and the Director of the Documentation, Information and Technology Transfer Bureau. The decisions of the Director General in the exercise of his appellate jurisdiction in respect of the decisions of the Director of Patents, the Director of Trademarks and the Director of Copyright and Other Related Rights shall be appealable to the Court of Appeals in accordance with the Rules of Court; and those in respect of the decisions of the Director of the Documentation, Information and Technology Transfer Bureau shall be appealable to the Secretary of Trade and Industry;

“(c) Undertake enforcement functions supported by concerned agencies such as the Philippine National Police, the National Bureau of Investigation, the Bureau of Customs, the Optical Media Board, and the local government units, among others;

“(d) Conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of this Act based on report, information or complaint received by the office; and

“(e) Such other functions in furtherance of protecting IP rights and objectives of this Act.”

SEC. 3. A new Section 9A is hereby inserted after Section 9 of Republic Act No. 8293, to read as follows:

“SEC. 9A. The Bureau of Copyright and Other Related Rights. – The Bureau of Copyright and Other Related Rights. – The Bureau of Copyright and Other Related Rights shall have the following functions:

“9A.1. Exercise original jurisdiction to resolve disputes relating to the terms of a license involving the author’s right to public performance or other communication of his work;

“9A.2. Accept, review and decide on applications for the accreditation of collective management organizations or similar entities;

“9A.3. Conduct studies and researches in the field of copyright and related rights; and

“9A.4. Provide other copyright and related rights service and charge reasonable fees therfor.”

SEC. 4. Section 171.3 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 171. Definitions. – x x x

“171.3. ‘Communication to the public’ or ‘communicate to the public’ means any communicate to the public, including broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting by satellite, and includes the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them;”

SEC. 5. Section 171.9. of Republic Act No. 8293 is hereby amended to read as follows:

“171.9. ‘Reproduction’ is the making of one (1) or more copies, temporary or permanent, in whole or in part, of a work or a sound recording in any manner or form without prejudice to the provisions of Section 185 of this Act (Sec. 41[E], P.D. No. 49a);

SECTION 6. There shall be two new subsections to be added at the end of Section 171.11. to be known as 171.12. and 171.13., both to read as follows:

“171.12. ‘Technological measure’ means any technology, device or component that, in the normal course of its operation, restricts acts in respect of a work, performance or sound recording, which are not authorized by the authors, performers or producers of sound recordings concerned or permitted by law;

“171.13. ‘Rights management information’ means information which identifies the work, sound recording or performance; the author of the work, producer of the sound recording or performer of the performance; the owner of any right in the work, sound recording or performance; or information about the terms and conditions of the use of the work, sound recording or performance; and any number or code that represent such information, when any of these items is attached to a copy of the work, sound recording or fixation of performance or appears in conjunction with the communication to the public of a work, sound recording or performance.”

SEC. 7. The Chapter Title of Chapter VII, Part IV, the Law on Copyright, is hereby amended to read as follows:

“CHAPTER VII

TRANSFER, ASSIGNMENT AND LICENSING OF COPYRIGHT”

SEC. 8. Section 180 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 180. Rights of Assignee or Licensee. –180.1. The copyright may be assigned or licensed in whole or in part. Within the scope of the assignment or license, the assignee or licensee is entitled to all the rights and remedies which the assignor or licensor had with respect to the copyright.

“180.2. The copyright is not deemed assigned or licensed inter vivos, in whole or in part, unless there is a written indication of such intention.

“x x x

“180.4. Any exclusivity in the economic rights in a work may be exclusively licensed. Within the scope of the exclusive license, the licensee is entitled to all the rights and remedies which the licensor had with respect to the copyright.

“180.5. The copyright owner has the right to regular statements of accounts from the assignee or the license with regard to assigned or licensed work.”

Sec. 9. Section 181 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 181. Copyright and Material Object. – The copyright is distinct from the property in the material object subject to it. Consequently, the transfer, assignment or licensing of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer, assignment or licensing of the copyright. (Sec. 16, P.D. No. 49)”

SEC. 10. Section 183 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 183. Designation of Society. – The owners of copyright and related rights or their heirs may designate a society of artists, writers, composers and other right-holders to collectively manage their economic or moral rights on their behalf. For the said societies to enforce the rights of their members, they shall first secure the necessary accreditation from the Intellectual Property Office. (Sec. 32, P.D. No. 49a)”

SEC. 11. Section 184.1. of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 184. Limitations on Copyright. – x x x

“(1) The reproduction or distribution of published articles or materials in a specialized format exclusively for the use of the blind, visually- and reading-impaired persons: Provided, That such copies and distribution shall be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication.”

SEC. 12. Section 185.1. of Republic Act No. 8293 is hereby to read as follows:

“SEC. 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability.

“x x x.”

SEC. 13. Section 188.1 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 188. Reprographic Reproduction by Libraries. – 188.1. Notwithstanding the provisions of Subsection 177.1., any library or achieve whose activities are not for profit may, without the authorization of the copyright owner, make a limited number of copies of the work, as may be necessary for such institutions to fulfill their mandate, by reprographic reproduction:

“x x x

“(c) Where the making of such limited copies is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher.”

SEC. 14. Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety.

SEC. 15. Section 190.3. of Republic Act No 8293 is hereby renumbered and amended as the sole provision under Section 190 to read as follows:

“SEC. 190. Importation and Exportation of Infringing Materials. – Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported. (Sec. 30, P.D. No. 49)”

SEC. 16. Section 191 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC.191. Deposit and Notice of Deposit with the National Library and the Supreme Court Library. – At any time during the subsistence of the copyright, the owner of the copyright or of any exclusive right in the work may, for the purpose of completing the records of the National Library and the Supreme Court Library, register and deposit with them, by personal delivery or by registered mail, two (2) complete copies or reproductions of the work in such form as the Directors of the said libraries may prescribe in accordance with regulations: Provided, That only works in the field of law shall be deposited with the Supreme Court Library. Such registration and deposit is not a condition of copyright protection.”

Sec. 17. Section 198 of Republic Act No. 8293 is hereby amended to read as follows:

“Sec. 198. Term of Moral Rights. – 198.1. The right of an author under Section 193.1. shall last during the lifetime of the author and in perpetuity after his death while the rights under Sections 193.2. 193.3. and 193.4. shall be coterminous with the economic rights, the moral rights shall not be assignable or subject to license. The person or persons to be charged with the posthumous enforcement of these rights shall be named in a written instrument which shall be filed with the National Library. In default of such person or persons, such enforcement shall devolve upon either the author’s heirs, and in default of the heirs, the Director of the National Library.”

SEC. 18. Section 203 of Republic Act No. 8293 is hereby amended to read as follows;

“x x x

“203.2. The right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings or audiovisual works or fixations in any manner or form;

“203.3. Subject to the provisions of Section 206, the right of authorizing the first public distribution of the original and copies of their performance fixed in sound recordings or audiovisual works or fixations through sale or rental of other forms of transfer of ownership;

“203.4. The right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings or audiovisual works or fixations, even after distribution of them by, or pursuant to the authorization by the performer, and

“203.5. The right of authorizing the making available to the public of their performances fixed in sound recordings or audiovisual works and fixations, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them. (Sec. 42, P.D. No. 49A).”

SEC. 19. Section 204.1. of Republic Act No. 8293 is hereby amended to read as follows;

“204.1. Independently of performer’s economic rights, the performer shall, as regards his live aural performances fixed in sound recordings or in audiovisual works or fixations, have the right to claim to be identified as the performer of his performances, except where the omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.”

SEC.20. Section of Republic Act No. 8293 is hereby amended to read as follows:

“SEC.208. Scope of Right – x x x

“208.4. The right to authorize the making available to the public of their sound recordings in such a way that members of the public may access the sound recording from a place and at a time individually chosen or selected by them, as well as other transmissions of a sound recording with like effect.”

SEC. 21. Section 212 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 212. Limitations on Rights – The provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcasting organizations.”

SEC. 22. Section 216 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 216. Infringement. – A person infringes a right protected under this Act when one:

“(a) Directly commits an infringement;

“(b) Benefits from the infringing activity of another person who commits an infringement if the person benefiting has been given notice of the infringing activity and has the right and ability to control the activities of the other person;

“(c) With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.

“216.1. Remedies for Infringement. – Any person infringing a right protected under this law shall be liable:

“x x x

“(b) To pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty: Provided, That the amount of damages to be awarded shall be doubled against any person who:

“(i) Circumvents effective technological measures; or

“(ii) Having reasonable grounds to know that it will include, enable, facilitate or conceal the infringement, remove or alter any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, or distribute, import for distribution, broadcast, or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.

“x x x

“The copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in an action in a sum equivalent to the filing fee of the infringement action but not less than Fifty thousand pesos (Php50,000.00). In awarding statutory damages, the court may consider the following factors:

“(1) The nature and purpose of the infringing act;

“(2) The flagrancy of the infringement;

“(3) Whether the defendant acted in bad faith;

“(4) The need for deterrence;

“(5) Any loss that the plaintiff has suffered or is likely to suffer by reason of the infringement; and

“(6) Any benefit shown to have accrued to the defendant by reason of the infringement.

“In case the infringer was not aware and had no reason to believe that his acts constitute an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not more than Ten thousand pesos (Php10,000.00): Provided, that the amount of damages to be awarded shall be doubled against any person who:

“(i) Circumvents effective technological measures;

or

“(ii) Having reasonable grounds to know that it will induce, enable, facilitate or conceal the infringement, remove or alter any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, or distribute, import for distribution, broadcast, or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.

“x x x

“216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings, in accordance with the rules on search and seizure involving violations of intellectual property rights issued by the Supreme Court. (Sec. 28, P.D. No. 49a)

“The foregoing shall not preclude an independent suit for relief by the injured party by way of damages, injunction, accounts or otherwise.”

SEC. 23. Section 217.2. of Republic Act No. 8293 is hereby amended to read as follows:

“271.2 In determining the number of years of imprisonment and the amount of fine, the court shall consider the infringing materials that the defendant has produced or manufactured and the damage that the copyright owner has suffered by reason of the infringement: Provided, That the respective stated in Section 217.1. (a), (b) and (c) herein for the first, second, third and subsequent offense, shall be imposed when the infringement is committed by:

“(a) The circumvention of effective technological measures;

“(b) The removal or alteration of any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, by a person, knowingly and without authority; or

“(c) The distribution, importation for distribution, broadcast, or communication to the public of works or copies of works, by a person without authority, knowing that electronic rights management information has been removed or altered without authority.”

SEC. 24. Section 218.1. of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 218. Affidavit Evidence. – x x x

“(c) The copy of the work or other subject matter annexed thereto is a true copy thereof.

“The affidavit shall be admitted in evidence in any proceedings under this Chapter and shall be prima facie proof of the matters therein stated until the contrary is proved, and the court before which such affidavit is produced shall assume that theaffidavit was made by or on behalf of the owner of the copyright.”

SEC.25. A new Section 220A shall be inserted after Section 220.2. of Republic Act No. 8293to read as follows:

“SEC. 220A. Disclosure of Information.- Where any article or its packaging or an implement for making it is seized or detained under a valid search and seizure under this Act is, or is reasonably suspected to be, by an authorized enforcement officer, in violation of this Act, the said officer shall, wherever reasonably practicable, notify the owner of the copyright in question or his authorized agent of the seizure or detention, as the case may be.”

SEC. 26. Section 226 of Republic Act No. 8293 is hereby amended to read as follows:

“SEC. 226. Damages. – No damages may be recovered under this Act after the lapse of four (4) years from the time the cause of action arose. (Sec. 58, P.D. No. 49).”

SEC.27. Chapter XX of Republic Act No. 8293 is hereby amended by adding a new section at the end thereof to be denominated as Section 230, to read as follows:

“SEC. 230. Adoption of Intellectual Property (IP) Policies. – Schools and universities shall adopt intellectual property policies that would govern the use and creation of intellectual property with the purpose of safeguarding the intellectual creations of the learning institution and its employees, and adopting locally-established industry practice fair use guidelines. These policies may be developed in relation to licensing agreements entered into by the learning institution with a collective licensing organization.”

SEC. 28. Section 230 of Republic Act No. 8293 is hereby renumbered as Section 231, and all succeeding sections of the same Act are hereby renumbered accordingly.

SEC.29. Implementing Rules and Regulations. – Within one hundred eighty (180) days from the affectivity of this Act, the Intellectual Property Office, in consultation with the National Book Development Board, the National Library, the Supreme Court Library and other relevant agencies, shall promulgate the rules and regulations necessary to effectively implement the provisions of this Act.

SEC.30. Repealing Clause. – All laws, decrees, executive orders, issuances or regulations inconsistent with the provisions of this Act are hereby revised or amended accordingly.

SEC.31. Separability Clause. – If any part of this Act is declared unconstitutional or invalid, such parts or provisions thereof not so declared shall remain valid and subsisting.

SEC. 32. Effectivity Clause. – This Act shall take effect fifteen (15) days after its publication in at least two (2) newspapers of general circulation.

Approved,

This Act which is a consolidation of Senate Bill No. 2842 and House Bill No. 3841 was passed by the Senate and the House of Representatives on December 11, 2012 and November 26, 2012, respectively.

Approved: FEB 28 2013

BENIGNO S. AQUINO III

President of the Philippines

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step parents and step children;
(3) Between parents in law and children in law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse or his or her own spouse.

[Refer also to Grounds for Declaration of Nullity of Marriage]

Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood.

[Refer also to Grounds for Declaration of Nullity of Marriage]

On the other hand, the amount of support should be in proportion to the resources or means of the giver and the necessities of the recipient, pursuant to Articles 194, 201 and 202 of the Family Code:

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

Property Relations under Article 147 of the Family Code

Article 147 of the Family Code applies to the union of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void.[3] Article 147 reads:

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this 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 of the household.

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.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

Article 147 is a remake of Article 144 of the Civil Code.[4] Nevertheless, Article 147 of the Family Code and, in addition, the law now expressly provides that[5] —

(a) Neither party can dispose or encumber by act inter vivos his or her share in co-ownership property, without consent of the other, during the period of cohabitation; and

(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation or declaration of nullity of the marriage.

Requisites for the applicability of Article 147

For Article 147 of the Family Code to apply, the following elements must be present:[6]

1. The man and the woman must be capacitated to marry each other;

2. They live exclusively with each other as husband and wife; and

3. Their union is without the benefit of marriage, or their marriage is void.

The term “capacitated” in the provision refers to the legal capacity of a party to contract marriage, i.e., any “male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38″ of the Family Code.[7] In other words, it is required that both must be capacitated, or has no legal impediment, to marry each other. Thus, couples under a “live-in” relationship will not be covered under this provision if one or both has a prior existing marriage.

Rule on equal co-ownership

This particular kind of co-ownership applies when a man and a woman, suffering no illegal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage.[8]

Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. Unlike the conjugal partnership of gains, the fruits of the couple’s separate property are not included in the co-ownership.[9]

As to the homemaker, or the one who cared for and maintained the family household, he/she is still considered to have jointly contributed to the acquisition of a property, even if he/she did not directly participate in the property’s acquisition. Article 147 explicitly provides that a party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.”[10]

Wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto.[11] Even if the disputed “death benefits” were earned by a government employee, Article 147 creates a co-ownership in respect thereto, entitling the other party to share one-half thereof. As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith.[12]

Property Relations under Article 148 of the Family Code

How about if one or both partners are not capacitated to marry, as when one (or both) has an existing or prior marriage which has not been annulled/declared void? This is covered under Art. 148 of the Family Code, which reads:

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Article 148 refers to the property regime of bigamous marriages, adulterous relationships, relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man.[13] For instance, a marriage which is a bigamous, having been solemnized during the subsistence of a previous marriage, is governed by Article 148.[14]

In this property regime, the properties acquired by the parties through their actual joint contribution shall belong to the co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too, contributions in the form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime.[15] In contrast, under Article 147, wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto.[16]

Under Art. 148, only the properties acquired through their ACTUAL JOINT contribution of money, property or industry shall be owned by them in common (in proportion to their actual contributions). There is no presumption that properties were acquired through the partners’ joint effort. Please also note that if one has a prior marriage, his/her share shall be forfeited in favor of that previous marriage (as an aside, the children under the second relationship shall be considered as illegitimate).

When the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband and wife), only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner already heretofore expressed.[17]

Interplay between Articles 147 and 148

Cariño vs. Cariño[18] is an interesting case in point. The man was first married in 1969, but it was shown that the marriage was solemnized without a valid marriage license. The man again remarried in 1992 without having sought the declaration of the former marriage. “Considering that the two marriages are void ab initio, the applicable property regime would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of Articles 147 and 148″.

The Supreme Court ruled that the first marriage, having been solemnized without the necessary marriage license and not being one of the marriages exempt from the marriage license requirement, is void ab initio and governed by Article 147. Unless shown otherwise, these properties are presumed to be owned in common which entitles the other party to an equal share.

The second marriage, which is clearly a bigamous marriage considering that there must first be a prior judicial declaration of the nullity of a previous void marriage marriage, is governed by Article 148. As to the disputed renumerations, incentives and benefits from governmental agencies earned by the deceased as a police officer, these belong to the deceased alone. These are not owned in common unless the partner presents proof to the contrary.

The Supreme Court also touched on the rule when a collateral attack on the validity of marriage may be made: “[A] prior and separate declaration of nullity of a marriage is an all important condition precedent only for purposes of remarriage. That is, if a party who is previously married wishes to contract a second marriage, he or she has to obtain first a judicial decree declaring the first marriage void, before he or she could contract said second marriage, otherwise the second marriage would be void. The same rule applies even if the first marriage is patently void because the parties are not free to determine for themselves the validity or invalidity or their marriage. However, for purposes other than to remarry, like for filing a case for collection of sum of money anchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity is necessary. All that a party has to do is to present evidence, testimonial or documentary, that would prove that the marriage from which his or her rights flow is in fact valid. Thereupon, the court, if material to the determination of the issues before it, will rule on the status of the marriage involved and proceed to determine the rights of the parties in accordance with the applicable laws and jurisprudence.”

Applicability of Articles 50 and 51 of the Family Code

Articles 50 and 51 of the Family Code relate only to voidable marriages and exceptionally to void marriages under Article 40 of the Family Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void.[19]

In a case that does not involve the annulment of a bigamous marriage, the provisions of Article 50 in relation to Articles 41, 42 and 43 of the Family Code, providing for the dissolution of the absolute community or conjugal partnership of gains, as the case may be, do not apply. Rather, the general rule applies, which is that in case a marriage is declared void ab initio, the property regime applicable and to be liquidated, partitioned and distributed is that of equal co-ownership.[20]

Nevertheless, divorce decrees secured outside the Philippines are recognized in certain instances. This is provided in Article 26 (Paragraph 2) of the Family Code, which reads in full:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

The first paragraph of Article 26 simply means that a marriage celebrated outside the Philippines, except in the specified instances, are recognized and given effect in Philippine jurisdiction.

Recognition of Divorce in the Philippines

The second paragraph deals with the effect of divorce in the Philippines. The twin elements for the application of this provision are:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

After complying with the procedure in having the foreign decree of divorce judicially recognized (through a court action) here in the Philippines, the Filipino spouse may validly remarry.

Applicability in Favor of Former Filipinos

At first glance, Article 26 seems to apply only to a marriage between a Filipino and a foreigner. However, this provision was later interpreted by the Supreme Court to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The reckoning point is not the citizenship of the parties at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. (Philippines vs. Orbecido III, G.R. No. 154380, 5 October 2005).

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

Reaching the age of majority relates to the legal capacity of the contracting parties, which is a essential requisite of marriage (FC, Art. 2). The absence of any of the essential or formal requisites shall render the marriage void ab initio (FC, Art. 4). Article 35(1) of the Family Code provides for the nullity of the marriage if contracted by any party below 18 years of age, even with the consent of parents or guardians.

It is crucial to note that the action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (FC, Art. 39)

Article 45(4) of the Family Code provides that a marriage may be annulled if the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife. [See also Grounds for Annulment]

Article 45(6) of the Family Code provides that a marriage may be annulled if either party was afflicted with a sexually transmissible disease (STD) found to be serious and appears to be incurable. [See also Grounds for Annulment]