Friday, December 22, 2006

Family Code of the Philippines: Primer on the family and family home

Title V of the Family Code, specifically Articles 149 up to 162, defines what the family is, what family relations include and the procedures regarding the family home. (For the Biblical views on marriage and the family, please surf over to my “Legal issues and family matters” website.)

How does the Family Code define “family”?

The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. (Art. 149, Family Code)

Art. 149 speaks of “family relations”. What are included under the term “family relations”?

Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among brothers and sisters, whether of the full or half-blood. (Art. 150)

Art. 149 states that “no custom, practice or agreement destructive of the family shall be recognized or given effect.” What’s an example of these destructive custom, practice or agreement?

Please read below (after this primer) excerpts of the Supreme Court decision in Concerned Employee vs. Mayor, A.M. No. P-02-1564. November 23, 2004. The Court said, among others, “Even if not all forms of extra-marital relations are punishable under penal law, the sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. Accordingly, the Court has had little qualms with penalizing judicial employees for their dalliances with married persons or for their own betrayals of the marital vow of fidelity.”

Please also read my discussion of the Estrada vs. Escritor ruling of the Supreme Court regarding live-in relationships and the Constitutional freedom of religion.

If there are lawsuits between members of the same family (like quarrels among brothers and sisters regarding their inheritance), what is the requirement, if any, of the Family Code?

No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. (Art. 151)

If brothers and sisters, for example, cannot agree on the sharing or partition of their inheritance, but they do not want to resort to the filing of cases in court, what legal remedy do they have?

They can avail of Republic Act 9285 or the “Alternative Dispute Resolution Act of 2004.” Under the said law, the Office of Alternative Dispute Resolution has been created under the Department of Justice, and it helps provide parties to settle their dispute through mediation, conciliation, arbitration and other means

What is a family home?

The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (Art. 152)

When is the family home deemed constituted?

The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (Art. 153)

Who are the beneficiaries of the family home?

The beneficiaries of a family home are:

(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. (Art. 154)

Art. 153 states that the family home is exempt from execution, forced sale or attachment. Are there any exceptions?

The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4)
For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (Art. 155)

What may be constituted as a family home? Who may constitute a family home?

The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent.

The family home may also be constituted by an unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (Art. 156)

What is the value of the family home?

The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

Urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (Art. 157)

Can the family home be sold or otherwise alienated? Under what conditions?

The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (Art. 158)

What happens to the family home if the unmarried head of the family, or one or both spouses die?

The family home shall continue despite the death of one or 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 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. (Art. 159)

Under what circumstances, other than Article 155, can the family home be subject to execution?

When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (Art. 160)

How many family homes can a person constitute?
For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (Art. 161)

Art. 149 states that “no custom, practice or agreement destructive of the family shall be recognized or given effect.” The following are excerpts from the Supreme Court decision in the case of Concerned Employee vs. Mayor (A.M. No. P-02-1564. November 23, 2004) and illustrate what these destructive custom, practice or agreement are.

As correctly found by DCA Perez, most of the allegations stated in the anonymous letter-complaint were unsubstantiated. Thus, they were correctly disregarded. What becomes clear though from the facts is that respondent, a single woman, engaged in sexual relations with a married man, resulting in a child born out of wedlock. Respondent admitted just as much in her complaint for parental recognition and support filed on 19 May 1998, her admissions therein verified under oath. Moreover, the illicit liaison occurred during her employment with the judiciary. For this reason, the DCA recommends that respondent be found guilty of disgraceful and immoral conduct and suspended for six months.

Our landmark ruling in Estrada v. Escritor emphasizes that in determining whether the acts complained of constitute “disgraceful and immoral behavior” under the Civil Service Laws, the distinction between public and secular morality on the one hand, and religious morality, on the other should be kept in mind. The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality. Thus, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose.

Thus, any judicial pronouncement that an activity constitutes “disgraceful and immoral” behavior under the contemplation of the Civil Service law must satisfy the test that such conduct is regulated on account of the concerns of public and secular morality. Such judicial declarations cannot be mere effectuations of personal bias, notably those colored by particular religious mores. Nor would the demand be satisfied by the haphazard invocation of “cultural” values, without a convincing demonstration that these cultural biases have since been recognized and given accord within the realm of public policy. The Constitution and the statutes of the land would serve as especially authoritative sources of recognition, since they are irrefutable as to what the public policy is. At the same time, the constitutional protections afforded under the Bill of Rights should be observed, to the extent that they protect behavior that may be frowned upon by the majority.

Even if not all forms of extra-marital relations are punishable under penal law, the sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. Accordingly, the Court has had little qualms with penalizing judicial employees for their dalliances with married persons or for their own betrayals of the marital vow of fidelity.
Please also read my discussion of the Estrada vs. Escritor ruling of the Supreme Court regarding live-in relationships and the Constitutional freedom of religion.

14 comments :

Anonymous said...

My lolo and lola are already dead. They were not able to transfer the house to their children. Now the children (6 all adult,2 of them are also dead)wants to sell the house. The family of of their brother (his wife and 6 kids lives at the back of the house (the lot has two houses)doesnt want to sell the house. That brother is now also dead (1 of the 2 children who's already dead). How can the living children of my lolo sell the house without involving them. They will still give their share when they sell the house

Atty. Gerry T. Galacio said...

1. Try to get all the parties involved to just agree on settling your problems with the sharing in an extra-judicial settlement of estate. If the title is in the name of your grandparents, you will have problems with the Register of Deeds in terms of penalties when the title is transferred to the names of the heirs. The sooner you can agree on an extrajudicial settlement, the better.

2. The living children can file a petition in court for the judicial settlement of your grandparents’ estate. You have to get the services of a lawyer to file this petition for you.

3. Whether by judicial or extrajudicial settlement, the heirs have to pay the estate tax to the BIR and the penalties to the Register of Deeds.

4. Assuming that there is no problem with the transfer of the title, there is another option if the parties (especially the wife and 6 kids of the dead brother) cannot agree. The living children must file a petition in court for the partition of the property under Rule 69 of the Rules of Court. You have to get the services of a lawyer to file this petition for you. The court will appoint a group of commissioners which will divide the land among the heirs. OR the commissioners can sell the land and then distribute the selling price to all the heirs.

Randy said...

Sounds like they should have had a trust. Unfortunately, such are not in widespread use here in the Philippines- nor even in the US, for that matter, although they're gaining popularity.

Loren said...

hi! i want to ask, my mom died last april 9, 2007 due to multiple organ failure. On the day of her death, a woman calls and says that my mother owes her P3,824 from their paluwagan which she wasnt able to pay because she was already in the hospital. But my mom also told me that she didnt get her share from the paluwagan so she didnt pay the rest of what she was supposed to pay. This woman keeps bugging me to pay her eversince. I was only 19 then, I am now 21 years old and she keeps bugging me. My dad doesnt have a job. And the woman keeps bugging us because she know we are sent SSS Pension every month. Should we pay her? My mom didnt instruct me before she died nor did she leave a will. Thank You I hope You can help me. Please email me at elhey_18@yahoo.com

Anonymous said...

I would just like to ask if a paramour or a concubine who has a child with a married man, can constitute a family home as an unmarried head of the family even if she only contributed a lesser amount compared to that which her partner gave to purchase that home..I'm confused...

Atty. Gerry T. Galacio said...

Article 156 of the family Code states:

The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property.

In the situation you described therefore, it cannot be a family home since it is commonly owned by the married partner and the paramour/concubine.

don said...

I desperately need some advice.
I am a foreigner married in the Philippines for 2 years, I have all my assets in my wifes name 2 houses and 2 businesses. She wants to dissolve the marriage by way of divorce or annulment,Regarding property settlement, she is suggesting to me that she keep all property and after divorce I allocate 50% of my business income to her. Is this possible? She believes that because everything is in her name I am not entitled to anything.

Atty. Gerry T. Galacio said...

Please read my post titled “Property rights of foreigners married to Filipino citizens; Can foreigners own land and other real properties in the Philippines?” (look for the link in the sidebar). Or you can download my free PDF newsletter Issue no. 010 November 15, 2008 on the same topic from www.familymatters.org.ph

With regards the properties acquired your marriage AND titled in the name of your wife, you have a big problem. As I discussed in the post and newsletter I mentioned above, the Supreme Court ruled in the case of Elena Buenaventura Muller vs. Helmut Muller, G.R. No. 149615 that you will not be able to claim these properties or even ask for reimbursement.

After your marriage has been declared null and void, however, there is no longer any right of support between the spouses. Your wife CANNOT therefore insist that you allocate 50% of your business income to her.

(If that business you referred to is owned jointly by you and your wife, it will be part of the properties which will be liquidated during the declaration of nullity proceedings. You get your part and your wife gets her part. BUT after your marriage has been dissolved, she no longer has any right to ask anything from you.)

Please consult other lawyers who may have opinions different from mine or who may be able to suggest alternative courses of actions.

reylene said...

My lolo and lola are already dead. They were not able to transfer the house to their children. Now the children (3 all adult,2 of them are also dead), the one and only living among the sons are not already interested with the land. My father is one of the son who was already dead, and my mom is in the States already, my sister and me were only left here in the Phils and my two brother is in the US also. I have 5 cousins that their father is also deceased, but right now we have a problem that the land of my lolo and lola were already transferred to one of my cousin thru extrajudicial settlement of estate without our name in that documents... can you give me advise about this... we are legal heirs also...

Atty. Gerry T. Galacio said...

I already answered your e-mail.

Anonymous said...

Hi Atty., Is my sister in law, entitled to a portion of my parent's estate? My brother, her husband, died ahead of my parents. They have children who are still minors.

Atty. Gerry T. Galacio said...

Alf,

I already answered your e-mail.

Anonymous said...

my sister is a filipino citizen she got married with a guy with a petition from canada, they got married here in the philippines...now after 8 years and one kid they want to get a divorce the guy is now a canadian citizen...can divorce apply if the guy applies for it?

Atty. Gerry T. Galacio said...

Please avoid double posting. This makes things difficult for me.