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Requisites of a Valid Marriage Settlement:

What is a marriage Settlement? [ANTE-NUPTIAL AGREEMENT]

- It is the agreement entered into by the future spouses fixing the property regime that should govern
during the existence of marriage.

1. It must be entered into before the celebration of marriage

2. It must be in writing
- It is valid even if it is in a private instrument
- it must me in writing to be enforceable

3. It must be signed by the parties

4. To affect third persons, it should be registered in the civil registry and registry of property

5. It must fix terms and conditions of their property relations

Requisites for Donations Propter Nuptias:

1. It must be made before he celebration of marriage

2. It must be made in consideration of marriage

3. It must be in favor of one or both future spouses

4. It must comply with the formalities of donation

- Donations of future properties shall be governed by the law on testamentary
succession and the formalities of a will must be complied with. [With Will
succession.

Limit if the Property Regime is Other than ACP:

The future spouses cannot donate to each other in the marriage settlement more than 1/5 of their
present property if they agree on a property regime that is NOT absolute community property. ANY
EXCESS SHALL BE VOID. [Art. 85 FCP]

Mortgaged Property can be donated by reason of marriage. However, the donee shall not be liable in
case of foreclosure and if there is deficiency. If the proceeds of the foreclosure sale is more than the
obligations, then the donee gets the balance after satisfying the credit.
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Grounds for Revocation of Donation Propter Nuptias [Art. 86 FCP]

1. If the marriage is not celebrated or judicially declared VOID AB INITIO, except donations made in
the marriage settlements, which shall be governed by Article 81.

[Article 81]
Everything stipulated in the settlements or contracts referred to in the preceding
articles in consideration of future marriage, including donations between the
prospective spouses made therein, shall be rendered void if the marriage does not
take place. However, stipulations that do not depend upon the celebration of the
marriage shall be valid.

2. When he marriage takes place without consent of the parents or guardian, as required by law;

3. When the marriage is annulled, and the donee acted in bad faith.

4. Upon legal separation, the donee being the guilty spouse

5. If it is with a resolutory condition and the condition is complied with; or

6. When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code
on donations in general

Notes:

The mere fact that a marriage is provided by law as void is not enough for the donor to have the right
to revoke the donation.

There must first be a judicial declaration that the marriage is void.

If the donee is in good faith, the donation is valid but the donor has an option to revoke it or not after
a judicial declaration of nullity is obtained.

If the donee does not want to return the donated property, the donor should file an action to recover
the thing donated and his or her right of action to file the case starts from the finality of the judicial
declaration of nullity as it is only from that time that the right of action accrues.

Movable Property - 8 years from the time the possession thereof I list

Real property - 30 years

Possession is deemed lost from the finality of the judicial declaration of nullity.
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Thus, it is mroe in keeping with the spirit of the law to consider any donation propter nuptias as
revoked by operation of law in case where the marriage is annulled and the donee acted in bad faith.
SUch ipso jure revocation would be consistent with the fact that had the innocent party known of the
guilty party’s bad faith prior to or even at the time of the marriage ceremony, he or she would not
have entered into such an annullable marriage or would not, in the first place, have even made such a
donation. The element of bad faith presupposes a corrupt attitude towards the institution of marriage
and should be penalized more severely.

It must also be observed that there are instances when a marriage is annullable but the spouses may
not be in bad faith even if Article 47 refers to an “injured party”. For example, if a donee-spouse, prior
to the marriage, informed the third-party donor and the other spouse or such other spouse alone in
case he or she is likewise the donor, that he or she (the donee spouse) is suffering from a serious and
incurable sexually transmissible disease or is impotent, such donee-spouse can never be considered in
bad faith. Hence, even if the marriage is later on annulled on this ground, the donation propter
nuptias remains effective and can never be revoked either under Article 86(3) or Article 50 in relation
to Article 43(3) of the Family Code.

5 years from the decree of leg sep, judicial declaration of nullity , resolutory condition

If the donation is validly made by one spouse in favor of the other spouse and the resolutory
condition happens, the donor-spouse can recover what is donated at anytime without any
prescriptive period because Article 1109 of the Civil Code provides that prescription does not run
between husband and wife, even though there be a separation of property agreed upon in the
marriage settlement.

Acts of Ingratitude:

1. If the donee should commit some offense against the person, the honor or property of the donor,
or of his wife, or children under his parental authority;

2. If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even
though he should prove it, unless the crime of the act has been committed against the donee himself,
his wife or children under his authority;

3. If he unduly refuse him support when the donee is legally or morally bound to give support to the
donor.

DONATION DURING THE MARRIAGE

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Generally, he donation or granting a gratuitous advantage (example granting of usufruct) from one
spouse to the other spouse (including common law spouses) is VOID.

Exception:

The following donations during marriage from one spouse to another are valid.

1. Moderate Gifts on occasions of family celebrations (gathering)

2. Donations mortis causa. (takes effect upon the death of the owner)

Moderate gifts will depend on a case to case basis especially considering the financial capacity of the
donor.

Absolute Community of Property vs. Conjugal Partnership of Gains

System of Absolute Community

- This is the default property regime of the Spouses.

Commencement - The regime commences at the precise moment the marriage is celebrated; a
stipulation to the contrary is not allowed.

Example: An agreement that the system of the Absolute community shall apply only one year after
marriage is void.

The regime cannot be changed and the spouses cannot waive their right during the Marriage.
Exception is when there is JUDICIAL SEPARATION.

The new civil Code provisions on the co-ownership apply suppletorily.

The interest of either spouse in the community property cannot be conveyed during the marriage
(inter vivos) but may be conveyed by will (testate succession)
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EXCLUSIONS:

These properties are not included in the community properties:

1. Property (inclusive of fruits and income thereof) acquired during the marriage by gratuitous title,
except when the donor, testator or grantor expressly provides otherwise;

2. Property acquired before the marriage by either souse who has legitimate descendants by a former
marriage; and

3. Property for personal and exclusive use except jewelry.

ADMINISTRATION:

The spouses shall have JOINT administration of the community properties including disposition and
encumbrance subject to the following rules:

1. In case of disagreement, husband’s decision shall prevail.

2. In case one spouse is incapacitated or unable to participate in the administration of the common
properties, other spouse may assume sole powers.

3. Any donation is void if without the written consent of the other spouse.

VOID DISPOSITION:

The power to administer in case of incapacity or if one spouse is unable to participate does not include
the power to dispose or encumber which must have either court authority or WRITTEN CONSENT of
the other spouse, otherwise the disposition or encumbrance is void

The same rule applies in the case of CONJUGAL PARTNERSHIP OF GAINS.

Continuing offer rule:

Since the transfer without consent or authority is void, the same cannot be ratified, however, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and the third
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person, an may be perfected as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both offerors.

Even if the encumbrance (like mortgage) is void because of the absence of authority of the cour or
consent of the other spouse, the loan secured by the mortgage may be valid under Article 94 (or
Article 121 if the property regime is CPG) of the Family Code if the loan redounded to the benefit of
the family. [PNB v. Reyes, JR]

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ARTICLE 93. Property acquired during the marriage is presumed to belong to the community, unless
it is proved that it is one of those excluded therefrom.

PROBLEM:

Which of the following are chargeable to or from part of the ACP:

(a) educational expenses of the spouses;

(b) Debts that already exists during the marriage,

(c) Lotto winnings,

(d) Horse race bet.

1. The educational expenses shall be chargeable to the community property because Art. 94 provides
that expenses to enable either spouse to commence or continue a professional or vocational course is
chargeable to the community property.

2. Ante-nuptial debts are chargeable insofar as they have redounded to the benefit of the family.

3. Lotto winnings belongs to the community properties. Art 95 of the FC provides that any winnings in
any game of chance or gambling shall form part of the community property.

The amount used for horse race bet shall be borne by the loser - the spouse who made the bet- and is
not chargeable to the community property.

Article 95 of the Family Code provides that

“whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or
any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser
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and shall not be charged to the community but any winnings therefrom shall form part of the
community property.”

NOTE: THE SAME RULES APPLY WITH RESPECT TO WINNINGS AND LOSS IN ANY KIND OF GAMBLING
IF THE PROPERTY REGIME IS CONJUGAL PARTNERSHIP OF GAINS AS PROVIDED FOR IN ART. 117(7)
AJD ART 123 OF THE FAMILY CODE.

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Charges Upon the Community Properties: [Article 94 FCP]

1. The support of the spouses, their common children, and the legitimate children of either
spouse; however, the support of illegitimate children shall be governed by the provisions of
this code on support;

2. All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the community, or by both spouses or by one of
them with the consent of the other;

3. Debts and obligations contracted by either spouse without the consent of the other to
the extent that the family may have benefited;

4. All taxes, liens, charges, and expenses, including major or minor repairs upon the
conjugal partnership property;

5. All taxes and expenses for mere preservation made during marriage upon the separate
property of either spouse USED BY THE FAMILY;

6. Expenses to enable either spouse to commence or complete a professional, vocational,

or other activity for self-improvement

7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the
family

8. The value of what is donated or promised by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or completing a professional
or vocational course or other activity for self-improvement; and

9. Expenses of litigation between the spouses unless the suit is found to be groundless.
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10.
If the community property is insufficient to cover the foregoing liabilities the
spouses shall be solidarily liable for the unpaid balance with their separate
properties.

Charges to be advance by ACP. In case the separate properties of the guilty or

liable spouse is not enough to answer of these liabilities, the ACP shall advance
the payments subject to deduction from the share of the guilty spouse upon
liquidation of the community;

Ante-nuptial debts of either spouse that did not redound to the benefit of the
family ;

The support of the illegitimate children of either spouse;

Liabilities incurred by either spouse by reason of a crime or a quasi-delict.

DISSOLUTION OF ABSOLUTE COMMUNITY.

The grounds for dissolution are:

1. Death of either spouse

2. Legal separation

3. Annulment of declaration of nullity of marriage;

4. Judicial separation of property

[THESE GOUNDS ARE THE SAME FOR DISSOLUTION OF THE CPG]

Separation in fact is not a ground for dissolution. Abandonment by one spouse is not a ground for
dissolution. However, the spouse who abandoned will not be entitled to upport and the aggrieved
spouse may file any of the following:

1. Petition for receivership,

2. Judicial separation

3. Petition for authority to be the sole administrator

THERE IS ABANDONMENT IF THE SPOUSE LEAVES WITHOUT INTENT TO RETURN. THIS ABSENCE OF
INTENT IS PRESUMED IF THE SPOUSE DOES NOT RETURN FOR 3 MONTHS.
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Conjugal Partnership of Gains.

This will only govern if stipulated in the marriage settlement.

Nature - under the regime of CPG, the husband and the wife place in a common fund the PROCEEDS,
PRODUCTS, FRUITS AND INCOME, from their separate properties and those acquired by either or both
spouses through their efforts or by chance, and upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage settlements.

PROPERTIES INCLUDED IN THE CONJUGAL PARTNERSHIP PROPERTIES. [Article 117]

1. Those acquired by onerous title during the marriage at the expense of the common fund, whether
the acquisition be for the partnership, or for only one of the spouses;

2. Those obtained from the labor, industry, work or profession of either or both of the spouses;

3. The fruits, natural, industrial, or civil, due or received during the marriage from the common
property, as well as the net fruits from the exclusive property of each spouse;

4. The share of either spouse in the hidden treasure which the law awards to the finder or owner of
the property where the treasure is found;

5. Those acquired through occupation such as fishing or hunting;

6. Livestock existing upon the dissolution of the partnership in excess of the number of each kind
brought to the marriage by either spouse; [example is 2 cows before marriage, now 20, 18 is CPG]

7. Those which are acquired by chance, such as winnings from gambling or betting. However, losses
therefrom shall be borne exclusively by the loser-spouse.

EXCLUSIVE PROPERTY OF EACH SPOUSE

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1. Property that is brought to the marriage as his/ her own;

2. Property acquired during the marriage by gratuitous title;

3. Property acquired by right of redemption, barter or exchange with property belonging to either
spouse; and

4. Property purchased with exclusive money of either spouse.

Rules in cases of Improvement of Exclusive Property [Article 150 FCP]

The ownership of improvements, whether for utility or adornment, made on the separate property of
the spouses at the expense of the partnership or through the acts or efforts of either or both spouses
shall pertain to the conjugal partnership, or to the original owner-souse, subject to the following
rules:

1. Accessory Follows the Principal.

When the cost of the improvement made by the conjugal partnership and any
resulting increase in value are LESS than the value of the property at the time of the
improvement, said property shall be retained in ownership by the owner-spouse subject to
reimbursement of the cost of the improvement.

2. Reverse Accession.

When the cost of improvement made by the CPG and any resulting increase in value
are more than the value of the property at the time of the improvement, the entire
property of one of the spouses shall belong to the CPG, subject to reimbursement of the
value of the property of the owner-spouse at the time of the improvement.

3. When ownership transferred

In either case, the ownership of the entire property shall be vested UPON THE
REIMBURSEMENT , which shall be made at the time of the liquidation of the conjugal
partnership. [Muñoz, Jr. vs. Ramirez]

Credit to a spouse prior to marriage.

Debt to a spouse where the term of payment extends after marriage shall remain the property of
the said spouse. However, the interest shall pertain to the CPG.
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PROPERTY PURCHASED ON INSTALLMENT. [Art 118]

Property bought on installment that is paid partly from exclusive funds of the spouses and partly from
conjugal funds of the spouses shall be subject to the following rules:

1. If full ownership was vested BEFORE the marriage - it shall belong to the buyer-spouse.

2. If full ownership was vested DURING the marriage - it shall belong to the CPG.

CHARGES UPON THE CONJUGAL PARTNERSHIP

The conjugal partnership shall be liable for:

1. The support of the spouses, their common children, and the legitimate children of either spouse;
however, the support of illegitimate children shall be governed by the provisions of this Code on
Support.

2. All debts and obligations contracted during the marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the
consent of the other;

3. Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have been benefited;

4. All taxes, liens, charges and expenses, including major or minor repairs upon the conjugal
partnership property;

5. All taxes and expenses for mere preservation made during the marriage upon the separate
property of either spouse;

6. Expenses to enable either spouse to commence or complete a profession, vocational, or other

activity for self-improvement.

7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;
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8. The value of what is donated or promised by both spouses in favor of their common legitimate
children for the exclusive purpose of commencing or completing a professional or vocational course
or other activity for self-improvement; and

9. Expenses of litigation between the spouses unless the suit is found to be groundless.

The charges are also THE SAME if the property regime is absolute community enumerated above,
except the following:

1. All taxes and expenses for mere preservation made during marriage upon the separate property
of either spouse is chargeable WITHOUT THE QUALIFICATION THAT APPLIES TO ABSOLUTE
COMMUNITY PROPERTY that it is used by the family;

2. Ante-nuptial debts that do not redound to the benefit of the family (payment of personal debts
contracted by either spouse before the marriage, that of fines and indemnities imposed upon them,
as well as the support of illegitimate children of either spouse) may be enforced against the
PARTNERSHIP assets AFTER THE ENUMERATED RESPONSIBILITIES have been covered, if the spouse
who is bound should have no exclusive property of if it should be insufficient. There is no such
qualification for Absolute Community Property.

a) Subsidiary Liability.

If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.

b) Ante-Nuptial Debt that Redound to the Benefit of Partnership.

The ante-nuptial debt should redound to the benefit of the conjugal partnership before it can be
chargeable to the said partnership.

1) Civil Liability arising from the criminal liability of slander is not chargeable against the conjugal
partnership because it does not redound to the benefit of the conjugal partnership.

[Sps. Buado v. CA]

2) There is a presumption that a surety agreement entered into by one spouse to secure the debt of a
third person to be does not redound to the benefit of the partnership.

[Ayala Investment and Dev. Corp v. CA]

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c) Benefit of the Family.

Debts and obligations benefit the family in the following if the husband himself is the principal obligor
in the contract, i.e., he directly received the money and services to be used in or for his own business
or his own profession. Here, no actual benefit may be proved. It is enough that the benefit to the
family is apparent at the time of the signing of the contract. Where the husband contracts obligations
on behalf of the family business, THE LAW PRESUMES, and that such obligation will redound to the
benefit of the conjugal partnership.

[Philippine National Bank v. Reyes, Jr]

Regime of Separation of Property

The property regime of the spouses is separation of property when

(1) Separation is provided for in the marriage settlement, or

(2) Upon judicial declaration of separation.

A) Kinds of Judicial Separation.

Judicial Separation can either be

(1) Voluntary

(2) For a cause

b) voluntary judicial separation

- by joint verified petition of the spouses during marriage.

This is also effective upon issuance of the decree of separation by the court [Art 136 FCP]

Separation in Fact

- Separation in fact of the spouses without any judicial decree will not result in the separation of their
properties - the ACP or CPG as the case may be, remains.

HOWEVER, the separation in fact has the following effects: [Art 110 and 127 FCP]
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1. The spouses who leaves the conjugal home or refuses to live therein, without just cause, shall not
have the right to be supported;

2. When the consent of one spouse to any transaction of the other is required by law, judicial
authorization shall be obtained in a summary proceeding;

3. In the absence of sufficient community property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share.

GROUND FOR JUDICIAL SEPARATION OF PROPERTY FOR CAUSE.

Any of the following shall be considered sufficient cause for judicial separation of property [Art 135
FCP]

1. The spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

2. The spouse of the petitioner has been judicially declared an absentee;

3. The loss of parental authority of the spouse of the petitioner has been decreed by the court;

4. The spouse of the petitioner has abandoned the latter of failed to comply with his or her
obligations to the family as provided for in Article 101;

5. The spouse granted the power of administration in the marriage settlement has abused that power;
and

6. At the time of the petition, the spouses have been separated in fact for at least one year and
reconciliation is highly improbable.

EFFECTS OF DECREE OF SPERATION.

1. The Absolute Community or Conjugal Partnership shall be liquidated

2. Rights previously acquired by creditors should be respected;

3. Both spouses shall bear the family expenses in proportion of their income, or, in case of
insufficiency or default thereof, to the current market value of their separate properties; and
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4. The liabilities of the spouses to creditors for family expenses shall be solidary.

PROPERTY RELATIONS BETWEEN COMMON-LAW SPOUSES.

CO-OWNERSHIP [Art. 147]

The law on co-ownership apples with respect to the properties acquired by both through their work
or industry in any of these two cases:

1. The common law spouses are WITHOUT IMPEDIMENT - 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; these require the following elements

1. The common law spouses are capacitated to marry each other

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

3. Their union is without the benefit of marriage. The term capacitated under this provision
pertains to the legal capacity of a party to contract marriage, that is, there is no impediment to
marry. [Barrido v. Nonato]

2. The marriage is void but the spouses are without impediment.

Examples:

1. Article 147 applies if the marriage is void under Article 36 (psych incapacity) if the spouses
suffered no impediment [Salas, Jr. v. Aguila]

2. Article 147 applies to marriage without a marriage license if the spouses do not suffer from
impediment

PRESUMPTION.

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.
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CARE AND MAINTENANCE.

A party who did not participate in the acquisition by the other party of any property hall 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.

Disposition.

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.

FORFEITURE OF SHARE.

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. [Art. 147 FCP]

1. In favor of their common children,

2. The respective surviving descendants - in case of default of or waiver by any or all of the common
children or their descendants;

3. In the absence of descendants, such share shall belong to the innocent party. IN CALL CASES,
FORFEITURE SHALL TAKE PLACE UPON TERMINATION OF THE COHABITATION.

COMPARED TO ARTICLE 43.

It should be noted that the rules under Article 43 is different from the rules under Article 147
although they both apply to void marriages. The difference, however, is that Article 43 applies only to
those marriages that are void under Article 40 as well as those that are voidable under Article 45.
Thus, outside of those cases, the above-stated rules under Article 147 apply.

Example:

Article 147 applies to void marriage under Article 36 (psychological incapacity). [Salas, Jr. v.
Aguila]

COMMON-LAW SPOUSES WITH IMPEDIMENTS.

In cases of cohabitation of common-law spouses who suffer from impediment to marriage, 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. [Article 148, FCP; Bangayan v Bangayan, Jr.]
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a) 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.

b) If one of the parties is validly married to another, his or her share in the co-ownership shall accre to
the ACP or CPG existing in such valid marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the manner provided in Article 147.

EXCLUSIVE PROPERTIES IN ACP AND CPG

EXCLUSIVE PROPERTIES OF EACH SPOUSE IN EXCLUSIVE PROPERTIES OF EACH SPOUSE IN

ABSOLUTE COMMUNITY PROPERTY REGIME CONJUGAL PARTNERSHIP OF GAINS [Article 109]

Property acquired during the marriage by That which is brought to the marriage as his or
gratuitous by either spouse, AND THE FRUITS AS her own;
WELL AS THE INCOME THEREOF, if any, unless it
is expressly provided by the donor, testator or
grantor that they shall form part of the
community property;

Property for personal and exclusive use of either That which each acquires during the marriage by
spouse. However, jewelry shall form part of the gratuitous title;
Community Property

Property acquired before the marriage by either That which is acquired by right of redemption, by
spouse who has legitimate descendants by a barter or by exchange with property belonging to
former marriage only one of the spouses; and

That which is purchased with exclusive money of

the wife or of the husband
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ADOPTION

What is adoption?

Adoption is the ESTABLISHMENT OF PATERNITY AND FILIATION through voluntary legal process.
Judicial decree is necessary for adoption.

A. The governing law is THE DOMESTIC ADOPTION ACT OF 1998 (RA 8552)

B. The relationship that is established extends only between the adopted child and the adopter. It
does not extend to the relatives.

Example:

The adopted child who is not a blood relative is not a compulsory heir of the relatives of the
spouses-adopters.

C. Adoption cannot be made subject to a collateral attack. [Reyes v. Mauricio]

WHO MAY ADOPT?

FILIPINO CITIZEN. The adopter must: ALIEN. The alien adopter must:

Be of legal age Have all the qualifications of a Filipino

enumerated.

Be in a position to support and care for his/ her Be a citizen that has diplomatic relations with the
children in keeping with the means of the family; Philippines

Be of good moral character; Have been living in the Philippines for at east 3
continuous years prior to the application for
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adoption and maintains such residence until the

adoption decree is entered

THE 3 YEAR REQUIREMENT DOES NOT APPLY

WHEN:

1. The adopter is a former Filipino citizen who

seeks to adopt a relative within the 4 th degree of
consanguinity or affinity;

2. One who seeks to adopt the legitimate of

illegitimate child of his or her Filipino spouse

3. One who is married to a Filipino citizen and

seeks to adopt jointly with his/her spouse
relative within the 4th degree of consanguinity or
affinity of the Filipino spouse

Be in a possession of full civil capacity or legal be certified to have legal capacity to adopt by
rights; his/her diplomatic or consular office;

Be at least 16 years older than the adoptee, be certified by said office that his government
except when: allows the adoptee to enter his/her country as
his/her adopted child.

- Adopter is the biological parent of the adoptee;

- Adopter is the spouse of the adoptee’s parent;

Has not been convicted of any crime involving

moral turpitude.

Be emotionally and psychologically capable of

caring for children.
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Continuity of residence.

The requirement that the alien must have been living in the Philippines for at least 3 continuous
years is NOT affected by temporary absences for professional, business, health, or emergency reasons
not exceeding 60 days in one year which according to the rules do not break the continuity
requirement

ADOPTION BY SPOUSES

The husband and the wife MUST JOINTLY ADOPT

Exceptions: joint adoption is not necessary in the following cases:

1. When one spouse seeks to adopt the legitimate child of the other

2. When one spouse seeks to adopt his/her own illegitimate child (with consent or the
other spouse;)

3. When the spouses are legally separated from each other.

WHO MAY BE ADOPTED?

1. Any person below 18 years of age who has been administratively declared available for adoption;

2. Legitimate stepchild - son/daughter of one spouse to be adopted by the other spouse;

3. Illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy

4. A person of legal age if prior to the adoption, he or she has been consistently considered by the
adopter as his/her own child since minority;

5. Child whose adoption has been previously rescinded

6. Child whose biological or adoptive parents have died, provided that no proceedings shall be
initiated within 6 months from the time of death of said parents.
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ADULTS MAY ALSO BE ADOPTED

Based on the foregoing, the general rule is that only minors can be adopted.

The exceptional cases when adults or persons of legal age can be adopted are:

1. Qualified adult, who, prior to the adoption, has been consistently considered by the
adopter as his/her own child since minority;

2. The adoptee is the illegitimate son/daughter of the adopter; or

3. Legitimate stepson/stepdaughter of the adopter.

Child refers to-

A person below 18 years of age or a person over 18 years of age but is unable to fully take
care of him/herself or protect himself/herself from abuse, neglect, cruelty, exploitation, or
discrimination because of physical or mental disability or condition.

ABANDONED CHILD - refers to a child who has no proper parental care of guardianship, or
whose parents have deserted him or her for a period of at least 3 continuous months, which
includes a foundling.

NEGLECTED CHILD - refers to a child whose basic needs have been deliberately unattended
or inadequately attended within a period of 3 continuous months. Neglect may occur in two
ways.

1. There is a physical neglect when the child is malnourished, ill-clad, and without proper
shelter. A child is unattended when left by himself/herself without proper provisions and/ or
without proper supervision.

2. There is emotional neglect when the child is maltreated, raped, seduced, exploited,
overworked, or made to work under conditions not conducive to good health; or is made to beg
in the streets or public places; or when children are in moral danger, or exposed to gambling,
prostitution, and other vices.

VOLUNTARY COMMITTED is one whose parents or legal guardian knowingly and willingly
relinquished parental authority to the DSWD or any duly accredited child-placement or child-
caring agency or institution.

De facto adoption must, however, be converted to legal adoption with court approval for all the
privileges, rights, and duties of the adopter and the adoptee to legally attach.
 22

CONSENT FOR ADOPTION.

The WRITTEN CONSENT of the following persons is required in an adoption.

1. The adoptee if 10 years of age or over;

2. Biological parents, if known, or the legal guardian, or the proper government

instrumentality that has legal custody of the child;

3. The legitimate/ adopted children, 10 years old or over, of the adopter and adoptee.

4. The illegitimate children, 10 years old or over, of the adopter if living with the
adopter and the latter’s spouse, if any,

5. Spouse of the adopter and adoptee.

In [Santos v. Aranzanso], it was held that consent by the parents to the adoption is not an absolute
requisite. If the natural parents have abandoned their children, consent by the guardian ad litem
suffices. Also, for there to be an abandonment, there must be a total cessation of all parental duties.
Hence, if the alleged abandoning mother still communicates with the children and gives them support
when she can, there is no abandonment.

Mere permitting the child to remain for a time undisturbed in the care of others is not such an
abandonment. The abandonment must have existed also at the time of the adoption.

RECONSIDERATION OF CONSENT.

RA 8552 provides that a period of 6 months shall be allowed for the biological parents to
reconsider any decision to relinquish his or her child for adoption before the decision becomes
irrevocable.

CAN THE NATURAL PARENTS BE ALLOWED TO WITHDRAW THEIR CONSENT TO THE ADOPTION OF
THEIR NATURAL CHILD PRIOR TO AN ADOPTION DECREE?

No binding commitment by the biological parents to an adoption plan shall be permitted before
the birth of the child.

A period of 6 months from the time the biological parents made their decision shall be allowed
for the biological parents to reconsider any decision to relinquish his/her/their child for adoption
before the decision becomes irrevocable.
 23

CONSENT OF SPOUSE.

This is necessary even if there is already a petition to dissolve the marriage while the petition for
adoption is also pending. The pendency of the petition to dissolve the marriage will not be excused
for the absence of the consent of the spouse.

TRIAL CUSTODY.

The court supervised trial custody is 6 months during which the temporary parental authority is
vested in the adopter/s.

EFFECTS OF ADOPTION.

Legal ties.

The legal ties between the biological parents and the adoptee is SEVERED and the same shall be
vested in the adopter/s.

Exception - if the biological parent is the spouse of the adopter.

Legitimate Child.

Adoptee shall be considered as a legitimate child of the adopter/s for all intents and purposes.

1. The adopter assumes the parental authority over the minor adoptee

2. “Even if emancipation terminates parental authority, the adoptee is still considered a legitimate
child of the adopter with all the rights of a legitimate child such as:

A. To bear the surname of the father and the mother;

B. To receive support from their parents;

C. To be entitled to the legitime and other successional rights

[Jurisprudence]

3. “Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to
which biological parents are entitled such as support and successional rights”. [Jurisprudence]

Succession.
 24

In legal or intestate succession, the adoptee or adopted shall have reciprocal rights.
The adopted shall have the rights of a legitimate child. However, if there is a will, the rules
on testamentary succession shall be followed.

Name.

The adopted shall be entitled to use the surname of the adopter. The law also
provides that decree of adoption shall state the name by which the child is to be known,
thereby indicating that a new first name may be chosen for the child.

The supreme court ruled in one case that an illegitimate child, upon adoption by her natural father,
may use the surname of her natural mother as her middle name.

The adopted shall not automatically obtain the citizenship of the adopter.

RECISSION OF ADOPTION.

Grounds.

1. Repeated physical or verbal maltreatment by the adopter despite having undergone counseling;

2. Attempt on the life of the adoptee;

3. Sexual assault of violence;

4. Abandonment and failure to comply with parental obligations

WHO CAN RESCIND?

Only the adoptee is given the right to rescind the decree of adoption.

The adopter CANNOT rescind the decree of the adoption. However, the remedy of the adopter
is to disinherit the adoptee in proper cases.

EFFECTS OF RESCISSION:
 25

1. Reciprocal rights and obligations of the adopters and the adoptee to each other shall be
EXTINGUISHED.

2. Parental authority of adoptee’s biological parents or legal custody of DSWD shall be

RESTORED if adoptee is still a minor or incapacitated.

3. The amended certificate of birth of the adoptee shall be cancelled and its original shall be
restored.

4. Succession rights shall revert to its status prior to the adoption but vested rights shall not be
affected.

5. Vested rights should be respected.

INTER-COUNTRY ADOPTION ACT OF 1995 (RA 8043)

What is inter-country adoption?

The socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree
of adoption is issued outside the Philippines.

WHO MAY BE ADOPTED? [intercountry adoption]

1. Only a LEGALLY-FREE CHILD may be the subject of inter-country adoption

A legally-free child is a child who has been voluntarily or involuntarily

committed to the DSWD of the Philippines, in accordance with the Child and
Youth Welfare Code.

2. No child shall be matched to a foreign adoptive family unless it is satisfactorily

shown that the child cannot be adopted locally.

WHO MAY ADOPT? [intercountry adoption]

Any alien or Filipino citizen permanently residing abroad may file an application for inter-country
adoption of a Filipino child if he or she:
 26

1. Is at least 27 years of age and at least 16 years older than the child to be adopted, at
the time of the application unless the adopter is the parent by nature of the child to be
adopted or the spouse of such parent;

2. If married, his/ her spouse must jointly file for the adoption;

3. Has the capacity to act and assume all rights and responsibilities of parental
authority under his national laws, and has undergone he appropriate counseling from an
accredited counselor in his/her country;

4. Has not been convicted of a crime involving moral turpitude;

5. Is eligible to adopt under his/her national law;

6. Is in a position to provide the proper care and support and to give the necessary
moral values and example to all his children, including the child to be adopted;

7. Agrees to uphold the basic rights of the child as embodied under Philippine laws,
the U.N. Convention on the Rights of a child, and to abide by the rules and regulations
issued to implement the Inter-country Adoption Act;

8. Comes from a country with whom the Philippines has diplomatic relations and
whose government maintains a similarly authorized and accredited agency and that
adoption is allowed under his or her national laws;

9. Possesses all the qualifications and none of the disqualifications under the Inter-
Country Adoption Act and the other applicable Philippine laws.

------------------------------------xxx--------------------------------------

In a case where a minor child was the subject of an adoption proceeding but he was still in the custody
of the natural parents and under their parental authority, when the said minor child shot another
person and where the adopting parents were sought to be liable, the SC ruled that the adoption
decree shall be effective as of the date of the filing of the petition, cannot apply in issues of vicarious
liability of parents which can only attach if, at the time of the incident, the child were under their
custody and parental authority. Hence, the natural parents should still be held liable and not the
adopting parents notwithstanding the provision of the law that the adoption decree has a retroactive
effect that goes back to the filing of the petition for adoption.
 27

SUPPORT

What is Support?

SUPPORT.

It is everything indispensable for sustenance, dwelling, clothing, medical attendance, education

and transportation in keeping with the financial capacity of the family. [Article 194 FCP]

A. Education includes schooling or training for some profession, trade or vocation, even beyond
the majority age.

B. Support is demandable at any time but shall not be paid except from the date of judicial or
extrajudicial demand.

C. Support can be given either by:

(1) giving of fixed allowance, or

(2) Unless there is moral or legal obstacle, by receiving and maintaining the recipient
in the family dwelling.

KINDS OF SUPPORT

Legal Support

Is that which is required or given by law;

Judicial Support

Which is required by the court to be given whether pendente lite or in a final judgment;

Conventional Support

Given by agreement or by will.

CHARACTERISTICS OF SUPPORT

1. Personal - this is due to or from persons specified by law only, the right as well as the obligation to
support cannot be transferred.

2. Not subject to waiver or compensation - thus it cannot be the subject of compromise agreement,

3. Exempt from attachment or execution,

 28

EXCEPTION: If support is conventional and the amount is in excess of what is required for
legal support, then the excess shall be subject to levy or attachment;

4. Mutual and Reciprocal on the part of those who are by law bound to support each other;

5. Variable - support shall be in proportion to the resources or means of the giver and to the
necessities of the recipient and may accordingly be reduced or increased.

PERSONS OBLIGED TO SUPPORT EACH OTHER

1. Spouses

2. Legitimate ascendants and descendants;

3. Parents and their legitimate children and the legitimate and illegitimate
children of the latter;

4. Parents and their illegitimate children and the legitimate and illegitimate
children of the latter; and

5. Legitimate brothers and sisters whether full or half-blood

NOTES, REMEMBER THESE:

1. Parents-in-law are not obliged to support their daughter in law

[Jurisprudence]

2. An unborn-child is entitled to support under Article 40 of the NCC

[Jurisprudence]

3. A child can still ask for support for his or her education even beyond majority age. The right is
not lost if the children previously squandered the money previously given to them

ORDER OF LIABILITY.

If there is concurrence of several persons who are obliged to give support, support should be
given in the following order:

(1) Spouse

(2) Descendants in the nearest degree;

 29

(3) Ascendants in the nearest degree;

(4) Brothers and sisters.

CONCURRENCE of Two or More Persons of the Same Level.

When the obligation to give support falls upon two or more persons,

(Example, two or more descendants of the same degree),

the payment shall be divided between them in proportion to the resources of

each, but in case of urgent need and special circumstances, the court may order one
of them to furnish the support provisionally subject to the right to claim from the
other obligors the share due them.

TWO OR MORE RECIPIENTS.

When two or more recipients at the same time claim for support and the obligor does
not have sufficient means to satisfy all claims:

1. The order of liability provided by law shall be followed;

2. If the concurrent obligees should be the spouse and child subject to parental
authority, the child shall be preferred.

Unacknowledged illegitimate child.

To be entitled to legal support, the petitioner-mother must, in proper action, first establish the
filiation of the child, if the same is not admitted or acknowledged. The child’s remedy is to file through
her mother a judicial action against the father for compulsory recognition. If filiation is beyond
question, support follows as matter of obligation. In short, illegitimate children are entitled to support
and successional rights but their filiation must be duly proved.

1) The mother’s remedy is to file for the benefit of her child an action against the father for
compulsory recognition in order to establish filiation and then demand support. Alternatively, she
may directly file an action for support, where the issue of compulsory recognition may be integrated
and resolved.

[Dolina v. Vallecera]

WHEN OBLIGATION TO SUPPORT CEASES

 30

1. Death of either party- the person who will support and who is entitled to support; and

2. In the case of a spouse, upon legal separation or annulment of marriage.

PARENTAL AUTHORITY

This is the right and duty of PARENTS over unemancipated children.

A. Non-transferrable.

Parental authority is not transferrable, waived or renounced except when the law
authorizes the same.

B. Unemancipated minors are those who are minors or below 18 years. The only ground
for emancipation is attaining the age of majority.

Again, it is important to emphasize that once parental authority is vested, it cannot be waived except
in cases of adoption, guardianship and surrender to a children’s home or an orphan institution
(Sagala-Eslao v. CA)

WHO WILL EXERCISE PARENTAL AUTHORITY?

The father and the mother shall JOINTLY exercise parental authority over the persons of their
common children. In case of disagreement, the father’s decision shall prevail unless these is a judicial
order to the contrary.

A. In case one of the parents die, the parent present - even if he or she
remarries - shall continue exercising parental authority over the child.

B. If the child is illegitimate, parental authority is with the mother unless she
is declared unfit in a proper action

PARENTAL PREFERENCE RULE

- the natural parents, who are of good character and who can reasonably provide for the
child are ordinarily entitled to custody as against all persons.
 31

A. Custody

The matter of custody is not permanent and can always be re-examined and adjusted. THe
welfare and interest of the minor child is the primary consideration. Judgment involving the
custody of a minor child cannot be accorded the force and effect of res judicata.

RULE IN CASE OF LEGAL SEPARATION OF PARENTS.

Parental authority is to be awarded by the court taking in mind the welfare and interest of the
child.

BEST INTEREST OF THE CHILD RULE.

A. Children of Tender Age.

No child under 7 years of age shall be separated from the mother.

EXCEPTION:

Even if the child is of tender age, the child can be separated from the mother when the
court finds COMPELLING REASONS to order otherwise.

Examples:

(i) The mother was already in a common law relationship;

(ii) If the mother left the child with the father for a long period of time and prejudice
might result to the child if he or she will be separated from the father.

NOTE: The fact that the mother is a lesbian is not by itself a compelling reason
to order the separation of the sever-year-old child from the mother.

[Jurisprudence]

Right to visit.

The fact that parental authority is given to the mother does not mean that the father has no
visitation rights.

Nothing in Article 213 of the FCP prevents the father from being allowed to see or visit the child.

DILIGENCE OF A GOOD FATHER OF A FAMILY [for vicarious liability]

 32

To be able to remove themselves from liability, the parents must show that they exercised the
diligence of a good father of a family.

In a case decided by the SC, where the father appeared to have negligently left his gun in a safety
deposit box and where it was also proved that the minor son knew the location of the gun; that strong
circumstantial evidence pointed to the son as having taken the gun to kill his former girlfriend against
whom he had a grudge for breaking the relationship with him and that later he killed himself, SC ruled
that the parents of the minor son were vicariously liable for the death of the former girlfriend and
stated that no sufficient evidence were presented to show that they exercised the diligence of a good
father of a family.

CHILD OVER SEVEN YEARS OLD.

If a minor child is already over sever years of age, the child’s choice as to which of his parents he
prefers to be under custody shall be respected unless the parent chosen proves to be unfit.

In Santos v. CA, where a father who was not shown to be unfit took away his son from the custody of
the grandparents through deceit, false presentations, and trickery, the SC rued that the father has the
rightful custody of his child.

Parental authority and responsibility are inalienable and may not be transferred or renounced except
in cases authorized by law.

SUBSTITUTE PARENTAL AUTHORITY

Persons exercising substitute parental authority shall have all the rights of the parents
enumerated in Article 220.

The persons exercising substitute parental authority shall have the same authority over the
person of the child as the parents.

They shall be civilly liable for the injuries and damages caused by the acts or omissions of the
unemancipated children living in their company and under their parental authority. Thus, it can very
well happen that a person who is not even related to an unemancipated child and who has not
adopted the same but who has actual custody of the said child, may be liable for all the injuries and
damages which the said child had caused another person but, at the same time and in spite of his or
her taking care of the child, will not inherit from the said child upon the latter’s death because he or
she is not an heir at all.
 33

In the absence of the parents, the following shall exercise

substitute parental authority IN THE ORDER INDICATED [Art 216 FCP]:

1. Surviving grandparent;

2. Oldest brother or sister over 21 years of age, unless unfit or

disqualified;

3. Actual custodian, over 21 years of age, unless unfit or

disqualified.

A) Foster child.

The foster parent shall have the rights, duties and liabilities of persons
exercising substitute parental authority, provided for under the Family Code,
over children under their foster care.

(1) However, foster parents shall only have the rights of a person with
special parental authority to discipline the foster child as defined
under section 233 of the Family Code, insofar as it prohibits the
infliction of corporal punishment upon the child.

SUBSTITUTE PARENTAL AUTHORITY OF GRANDPARENTS.

In the absence or incapacity of the parents, the grandparents are the most natural, suitable and
logical persons to exercise parental authority. Hence, grandparents have the legal preference in the
matter of substitute parental authority.

SPECIAL PARENTAL AUTHORITY

While the child is in their supervision, instruction or custody, the following exercise special
parental authority: [Art 218 FCP]

(1) School

(2) Administrators and teachers, and

(3) Individual, entity or institution engaged in child care.

FOUNDLINGS.
 34

As to foundlings, abandoned, neglected or abused children and other children similarly situated,
parental authority shall be entrusted in summary judicial proceedings to heads of children’s homes,
orphanages and similar institutions duly accredited by the proper government agency.

TORT LIABILITY.

Persons exercising parental authority (including the adopter and those exercising substitute
parental authority) are principally and solidarily liable for the damages caused by the acts or
omissions of the unemancipated minor. However, the unemancipated child must live in their
company.

(i) With respect to those exercising special parental authority, their liability is primary while the
liability of the parents (or judicial guardian or those exercising special parental authority) is subsidiary.

(ii) Even if the child is emancipated or is already 18, the parent or guardians are still liable under
Article 2180 of the New Civil Code if the child is below 21

(iii) The adopter is also liable provided that they have actual custody even during trial custody

LIABILITY OF PERSONS POSSESSING SPECIAL PARENTAL AUTHORITY.

Persons and entities given by law special parental authority are the school, its administrators and
teachers, or the individual, entity or institution engaged in child care.

Special parental authority can be exercised only over minors while under their supervision,
instruction, or custody

The authority and supervision also attach to all authorized activities whether inside or outside
the school, entity, or institution.

They are civilly liable for acts and omissions of the unemancipated minor.

However, the liabilities shall not apply if it is proven that they exercised the proper diligence
required under particular circumstances.
 35

THE TEACHERS MUST BE THE TEACHER IN CHARGE. He or she is the one designated by the dean,
principal, or other administrative superior to exercise supervision over the pupils in specific classes or
sections to which he or she is assigned; thus, is the one immediately involved in the students’
discipline as he or she has direct control and influence over them.

Hence, a mere physics teacher who is not the teacher-in-charge of the class shall not be liable.

[Amadora v. CA]

The persons with special parental authority are in loco parentis only with respect to unemancipated
persons and their liability will attach only in such case.

Only minors…(unemancipated, meaning under 18)

There is no distinction as to whether the school is academic or non-academic (arts and trades), and
the liability also extends to the administrators of the school.

The liability attaches while the minor child is under their supervision, instruction and custody and also
to all authorized activities whether inside or outside the premises of the school, entity or institution.
Being in the custody of the school means:

The protective and supervisory custody that the school and its head and teachers exercise
over the pupils and students for as long as they are in attendance in the school, including
recess time [Jurisprudence]

In [Amadora v. CA] the extend of the term CUSTODY was further explained, thus:

As long as it can be shown that the student is in the school premises in pursuance of a legitimate
student objective, in the exercise of a legitimate student right, and even in the enjoyment of a
legitimate student privilege, the responsibility of the school authorities over the student continues.
Indeed, even if the student should be doing nothing more that relaxing in the campus in the company
of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still
within the custody and subject to the discipline of the school authorities under the provisions of
Article 2180.
 36

DEFENSE OF PERSONS WITH SPECIAL PARENTAL AUTHORITY

As previously stated, the liability under Article 219 will not apply if it is proved that they
exercised the proper diligence required under the particular circumstances.

A reasonably prudent persons would have foreseen that bringing children to an

excavation site, and more so, leaving them there all by themselves, may result in an
accident.

An ordinarily careful human being would not assume that a simple warning “not to
touch the stone” is sufficient to cast away all the serious danger that a huge concrete block
adjacent to an excavation would present to the children. Moreover, a teacher who stands in
loco parentis to his pupils would have made sure that the children are protected from all
harm in his company.

IN REGARD TO THE CONCEPT OF DUE DILIGENCE

Moreover, the defense of due diligence is available to it in case it is sought to be held

answerable as principal for acts or omission of its head or teachers in its employ.

The school can show that it exercised proper measure in selecting the head or its teachers and
the appropriate supervision over them in the custody and instruction of pupils pursuant to its rules
and regulations for the maintenance of discipline among them. In almost all cases now, in fact these
measures are effected through the assistance of an adequate security force to help the teacher
physically enforce those rules upon the students.

In any event, the school, the teacher of an academic institution, and the head of establishment
of arts and trades (non-academic) may exculpate themselves themselves from liability upon showing
that they had taken the necessary precautions to prevent the injury complained of

[Amadora v. CA]

SUSPENSION OF PARENTAL AUTHORITY

When suspended.

Parental authority is suspended upon conviction of the parent or the person exercising the same
of a crime which carries with it the penalty of CIVIL INTERDICTION.
 37

A) When reinstated

The authority is automatically reinstated upon service of the penalty or upon pardon
or amnesty of the offender.

Suspended upon Court Order.

Parental authority may also be suspended upon order of the court in an action filed for the
purpose if the parent of the person exercising the same:

1) Treats the child with excessive harshness or cruelty.

2) Gives the child corrupting orders, counsel or example;

3) Compels the child to beg

4) Subjects the child or allows him to be subjected to acts of lasciviousness.

TERMINATION OF PARENTAL AUTHORITY

Permanent termination:

(1) Upon the death of the parents;

(2) Upon the death of the child;

(3) Upon emancipation of the child.

Terminated Unless Revived by Final Judgment:

(1) Upon adoption of the child;

(2) Upon appointment of a general guardian

(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

(4) Upon final judgment of a competent court divesting the party concerned of a parental
authority; or

(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.
 38

THE FAMILY

It is a basic social institution which public policy cherishes and protects.

EARNEST EFFORT TO COMPROMISE

- No suit between members of the family shall prosper unless there is an

allegation in the verified complaint or petition that earnest efforts to
compromise between the parties have failed.

WHAT IS INCLUDED IN FAMILY RELATIONS?

Family relations include:

(1) Between husband and wife

(2) Between parents and children

(3) Among ascendants and descendants

(4) Among brothers and sisters whether full or half blood

A) Example: a suit between a brother and a sister-in-law is not a suit between members of a
family, hence, it is not necessary to show and alleged earnest efforts to compromise

FAMILY HOME.

It is the dwelling house and the land where the spouses or the unmarried head of the family reside
together with their family.

Created by Operation of Law.

There is no need to formally constitute a family home extra-judicially or judicially

under the Family Code. A family home is constituted by operation of law when all the
requisites concur.
 39

REQUISITES to be considered a family home.

To be considered a family home, it is required that:

(1) It is constituted jointly by the husband and wife or the unmarried head of the family;

(i) It is deemed constituted from the time of actual occupation as a family

residence;

(2) The House AND the land must be owned by the person constituting it - either
community or conjugal properties or exclusive property with the consent of the owner

(3) It must be permanent - it continues and cannot be partitioned despite death of one or
more spouses or unmarried head of the family for 10 years, or as long as a minor beneficiary
lives;

(4) The family must actually reside in the home - thus the house in the Philippines can no
longer be considered a family home if the family already resides abroad and it is only the
overseer who maintains the family home;

(5) Only one family home can be constituted

(6) Its value must not exceed P300,000 for urban areas and P200,000 for rural areas

A) Note that the rule applies to valid and voidable marriages and even to common law
relationships under Articles 147 and 148

EXEMPT FROM EXECUTION.

The family home is exempt from execution, forced sale, or attachment.

A. Real Right.

Family home is a real right that is gratuitous, inalienable, and free from attachment.

A family home is exempt from execution, forced sale, or attachment.

B. Improvements.

In case of improvement of the family home, a creditor may cause the attachment of the family
home upon proof of the following facts:
 40

(1) there is an increase in the actual value of the family home;

(2) The increase resulted from voluntary improvement on the property introduced by the
persons constituting the family home, its owners or any of its beneficiaries;

(3) The increased value exceeded the maximum allowed under Article 157

EXCEPTIONS:

The family home is NOT exempt if the debt is

(1) Non-payment of taxes;

(2) Debts incurred prior to constitution;

(3) Debts secured by mortgages before or after constitution; and

(4) Debts due to laborers, mechanics, architects, builders, material men, and others who have
rendered service or furnished materials for the construction of the building.

A. Waiver and Laches.

The family home’s exemption from execution must be st up and proved to the Sheriff before the
sale of the property at a public auction.

The exemption may be waived or be barred by laches by the failure to set up and prove the
status of the property as a family home at the time of the levy or a reasonable time thereafter.

BENEFICIARIES OF THE FAMILY HOME.

(1) The husband and wife, or an unmarried person who is the head of a family; and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship
be legitimate or illegitimate, who are living in the family home and who depend upon the head
of the family for legal support. Thus, the children cannot oppose the partition of the alleged
family home if they do not live in the family home and do not depend upon the head of the
family for support.

Article 159

The family home shall continue despite the death of one of both spouses or of the unmarried
head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs
 41

cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the family home.

CASES THAT CANNOT BE COMPROMISED:

No compromise upon the following questions shall be valid:

(1) The civil status of persons

(2) The validity of a marriage or of a legal separation

(3) Any ground for legal separation

(4) Future support

(5) The jurisdiction of courts

(6) Future legitime

PATERNITY AND FILIATION

Relationship between the parents and their children.

A) Kinds:

(1) By Nature which can be legitimate or illegitimate; or

(2) By Adoption.

B) Proof of Paternity.

The status of being legitimate of illegitimate child of the alleged father

presupposes that there is paternity between the father and the child.

(1) Result of DNA is an acceptable evidence to prove the paternity of a child

(2) Certificate of live birth purportedly identifying the putative father is not
competent evidence of paternity when there is no showing that the putative father
had a hand in the preparation of the said certificate.
 42

Jurisprudence provides that Baptismal Certificates and marriage cetificates are not competent
proof of filiation. There must be other evidences of filiation aside from these documents such as the
“combination of testimonial evidence, family pictures, as well as family books or charts.”

RECORD OF BIRTH.

A record of birth appearing in the civil register is good proof as it proceeds from an official
government source. It is considered a public document and is prima facie evidence of the facts
therein contained. As prima facie evidence, the statements in the record of birth may be rebutted.

If there are no evidences to disprove the facts contained therein, the presumption will hold and
the children, as stated in the birth certificate, shall be considered legitimate.

The father needs to sign it. The placing of his name by the mother, or doctor or registrar, is
incompetent evidence of paternity of said child.

Thus, if it is signed by him, (or by the parents together), the birth certificate will be adequate proof
of paternity without need of further court action. [Jurisprudence]

LEGITIMATE CHILDREN

They are children who are conceived or born during the valid marriage of
the parents.

The following are also legitimate:

(1) Conceived as a result of artificial insemination

- The spouses authorized or ratified the insemination in a written

instrument which they executed and signed before the birth of the
child and recorded before the Civil Registrar

(2) Born of a voidable marriage before decree of annulment;

(3) Conceived or born before judgment of annulment or absolute nullity under Article
36 has become final and executory; or

(4) Conceived or born of subsequent marriage under Article 53.

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A) DECLARATION OF MOTHER.

The child shall be considered legitimate even if the mother may have declared against the
child’s legitimacy or was sentenced as an adulteress;

B) LEGITIMACY if marriage is Defective

The child is legitimate under the Family Code if he or she is conceived or born:

(i) Before annulment of a voidable marriage

(ii) Before the annulment of a marriage declared void under Article 36 for psychological
incapacity

(iii) Those conceived of a subsequent marriage before the termination of such subsequent
marriage by filing an affidavit of reappearance under Article 42.

Note: THE CHILD is illegitimate if he or she was conceived or born during a marriage that is
void under Articles 35, 37, 38 even if there is still no judgement declaring the marriage to be
void.

Adopted and Legitimated.

The following have the rights of legitimate children:

(1) Legally adopted

(2) Legitimated, conceived and born outside of wedlock of parents without

impediment to marry at the time of conception but who had subsequently get married to
each other.

PERIOD TO CLAIM LEGITIMACY

A person who claims to be a legitimate child of another may file an action for the declaration of
his or her legitimacy.

(1) If to be filed by child himself or herself - the action to claim legitimacy may be brought by
the child during his or her lifetime;

(2) If the child dies during his or her minority or state of insanity, the right to file an action to
claim legitimacy shall be transmitted to the heirs - the heirs shall have a period of five years within
which to institute the action.
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Proof of Legitimacy.

The filiation of legitimate children is established by any of the following

(1) The record of birth appearing in the civil register or a final judgement;

(2) An admission of legitimate filiation in a public document or a private

hand-written instrument and signed by the parent concerned.

A) In the absence of the foregoing evidence, the legitimate filiation

shall be proved by:

(i) The open and continuous possession of the status of a

legitimate child;

(ii) Any other means allowed by the Rules of Court and Special
Laws.

B) The above-enumerated proof apply to prove the illegitimacy of a

child under Article 172 of the Family Code. Proof of legitimacy under Article
172, or illegitimacy under Article 175, should only be raised in a direct and
separate action instituted to prove the filiation of a child. The above do not
contemplate a situation where a child is alleged not to be the child of
nature or biological child of a certain couple; it applies where one child is
alleged to be the legitimate child of a spouse.

C) However, a petition to be recognized as an illegitimate child must be

filed during the lifetime of the putative father.

RIGHTS OF LEGITIMATE CHILDREN

(1) To bear the surnames of the father and the mother, in conformity with the provisions of the
Civil Code on Surnames;

(2) To receive support from their parents, their ascendants, and in proper cases, their brothers
and sisters, in conformity with the provisions of this Code on Support;

(3) To be entitled to the legitime and other successional rights.

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ILLEGITIMATE CHILDREN

Those conceived and born outside a valid marriage are illegitimate.

They are born out of a void marriage or there was no marriage between the parents.

EXCEPTIONS:

Even if a child was born outside a valid marriage (in other words the marriage is void), the
child is still considered legitimate in the following cases:

(1) A child born before judicial decree declaring a marriage void due to psychological
incapacity under Article 36 of the FCP has become final and executory;

(2) A child born of a second marriage that was contracted after the judgment annulling or
declaring null and void the first marriage but the partition of property is not yet recorded in
Registry of Property [Article 54]

IMPUGNING THE LEGITIMACY OF THE CHILD.

Remember the case of Concepcion v. CA,

Where the wife bigamously married another and a child was born in the said bigamous union
and where the bigamous marriage was declared null and void, the SC ruled that the child actually born
in the second voided union was in effect born of the wife in the first subsisting marriage and therefore,
in the eyes of the law, the father of the child was the first husband of the wife. It was also asserted
that the birth certificate of the child stating the name of the second husband as the father created a
presumption of fact which should have been rebutted, but this contention was rejected by the SC by
stating that in case of conflict between presumption of law that a child born inside a valid marriage
is legitimate and a presumption of fact arising from the statement of filiation in a birth certificate,
the presumption of law will prevail.
 46

Who is allowed to impugn?

The legitimacy of a child is presumed. Only the husband may impugn.

EXCEPTION:

The heirs may impugn, if the husband dies before the end of the prescription of
the action, or after filing complaint, or child was born after death.

DIRECT ATTACK:

The husband must impugn the legitimacy in an action filed in court. It cannot be
collaterally questioned.

GROUNDS TO IMPUGN

(1) Physical impossibility of the husband to have sexual intercourse with his wife
within 120 days of the 300 days immediately preceding the child’s birth, due to:

(i) Physical incapacity of the husband;

(ii) Husband and the wife were living separately;

(iii) Serious illness of the husband which absolutely prevented sexual

intercourse.

(2) Biological Or Scientific Proof that the child could not have been that of the
husband; and

(3) Written authorization or ratification of either parent for artificial insemination

was obtained through mistake, fraud, violence, intimidation or undue influence.

PRESCRIPTIVE PERIODS.

(1) If the husband or heir lives in the same city of municipality where the birth
took place or is recorded - ONE YEAR, from knowledge of birth or recording in the civil
register.

(2) If the husband or heir DOES NOT reside in the same city of municipality where
the birth took place is recorded:
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(i) TWO YEARS, if husband or heir who will impugn resides in the
Philippines.

(ii) THREE YEARS, if the husband or heir who will impugn resides
abroad.

A) When Not Applicable.

The above prescriptive periods do not apply in an action to declare void or to

nullify the birth certificate of a child on the ground that the birth was simulated -
that is, that the child was not in fact the person’s child.

This is not a case of impugning the legitimacy of a child but a case of total
absence of paternity and filiation with the spouse. This action is imprescriptible.

CHILDREN BORN AFTER 300 DAYS FOLLOWING THE TERMINATION OF MARRIAGE.

A) REQUISITES

(1) The first marriage has been terminated;

(2) The mother contracted subsequent marriage

(3) The subsequent marriage was contracted within 300 days after termination of
previous marriage

(4) A child was born and there is no evidence as to status of child.

RULES AS TO WHOM THE CHILD BELONGS:

(1) To FIRST MARRIAGE, if a child was born before the lapse of 180 days after celebration of
second marriage provided it be born within 30 days after termination of the first marriage

(2) To SECOND MARRIAGE, if a child was born after 180 days following the celebration of
the second marriage whether born within 300 days after termination of first marriage or
afterwards.

LEGITIMATION

This takes place by SUBSEQUENT MARRIAGE. Legitimated children shall enjoy the same rights of
legitimate children retroactive to the time of birth. THE MARRIAGE MUST HOWEVER BE VALID.
 48

(1) Legitimation involves the act of both parents, that is by their subsequent marriage. Hence,
legitimation cannot be made by only one of them.

(2) The conferment of right to the legitimated child extends even to the relatives of the spouses.

Example: The legitimated child can be a compulsory heir of the relatives in proper cases.

(3) The legitimation of children who died before the celebration of the marriage shall benefit their
descendants.

(4) Legitimation may be impugned only by those who are prejudiced in their rights, within 5 years
from the time their cause of action accrues.

REQUISITES OF LEGITIMATION.

(1) The child is illegitimate;

(2) The parents at the time of the child’s conception are not disqualified from
marrying each other; and

(3) There is a valid marriage subsequent to the child’s birth.

USE OF SURNAME

Name and Surname

“For all practical and legal purposes, a man’s name is the designation by which he is known and
called in the community in which he lives and is best known.

It is defined as the word or combination of words by which a person is distinguished from other
individuals and, also, as the label or appellation which he bears for the convenience of the world at
large addressing him, or in speaking of or dealing with him. It is both of personal as well as public
interest that every person must have a name.

Parts of the name of an individual

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(1) The given or proper name - is that which is given to the individual at birth or at
baptism, to distinguish him from other individuals.

(2) The surname or family name - is that which identifies the family to which he
belongs and is continues from parent to child.

The given name may be freely selected by the parents for the child, but the surname
to which the child is entitled is fixed by law.

There is no law regulating the use of the middle name.

Once the name and surname is fixed, the same cannot be changed without judicial authority.

Generally, no person can use different names and surnames other than those specified in the
Certificate of Live Birth.

Usurpation, unauthorized, and unlawful use of a name and surname may make one liable for
damages.

Employment of stage name or pen name is permitted under the law and the same cannot be usurped.

ADMINISTRATIVE CORRECTION:

In case of clerical errors which can be corrected administratively by the Civil Registrar with
approval of the National Statistics Office.

Hence, jurisdiction is no longer with the Courts.

For example, correction of the first name is already removed from the operation of Rule 103 of
the Revised Rules of Court.

SURNAME

The rules on use of surnames are provided in the table below:

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WHO WILL USE THE WHOSE SURNAME CAN BE USED?

SURNAME

Legitimate Child father

Legitimated father

Illegitimate Child (1) Mother

(2) Father - in the following cases

(I) The filiation has been expressly

recognized by the father through
the record of birth appearing in
the civil register or

(II) When an admission in a public

document or private handwritten
instrument is made by the father

Children conceived Father

before annulment of
voidable marriage

Married Women Option on the part of the woman to:

(I) Use her maiden surname only;

(II) Use her maiden surname and add

her husband’s surname,

(III) Use her husband’s surname only

(IV) Use her husband’s full nae but

prefixing it with “MRS.”
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ILLEGITIMATE CHILD.

The law gives the illegitimate child the right to decide if he or she wants to use the surname of
his father; the child is under no compulsion to use the surname of his illegitimate father. The
illegitimate father cannot compel the use of his surname.

MARRIED WOMEN.

When the married woman adopts the surname of her spouse after marriage, she may not revert
to the use of her maiden name, except in the following cases:

(1) Death of husband

(2) Divorce

(3) Annulment

(4) Nullity of marriage

Grounds FOR CHANGE OF FIRST NAME OR NICKNAME (RA 9048)

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce.

(2) The new first name or nickname has been habitually and continuously use by the petitioner
and he has been publicly known by that first name or nickname in the community.

(3) The change will avoid confusion or embarrassment.

MATTERS SUBJECT TO JUDICIAL PROCEEDINGS

Article 253.

The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed
under Articles 41,51, 69, 73, 96, 124 and 217, insofar as they are applicable.

1. Judicial declaration of a spouse as presumptively dead

2. An action of a child for the delivery of his or her presumptive legitime,

3. Judicial determination of the family domicile in case of disagreement

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4. The court adjudication of the validity of a spouse’s objection to the profession of the other spouse

5. Deals with the court order entrusting foundlings, abandoned, neglected or abused children and
other children similarly situated to heads of children’s homes, orphanages and similar institutions duly
accredited by the proper government agency.

6. Annulment of the husband’s decision in the administration and enjoyment of the community or
conjugal property in case the husband’s decision is in conflict with the wife’s decision.

However, the appointment of one of the spouses as the sole administrator under the second
paragraph of Articles 96 and 124 shall be in a summary proceeding under Article 253 of the Family
Code only if it involves a situation where the other spouse is absent or separated in fact or has
abandoned the other or the consent is withheld.

If the subject spouse is “AN INCOMPETENT” who is in a comatose or semi-comatose condition, a

victim of stroke, without motor and mental faculties, and with diagnosis of brain stem infarct, the
proper remedy is judicial guardianship.

Article 247. The judgment of the court shall immediately be final and executory.