Can a mother be deprived of custody of her child?

Summary: 1. In custody disputes, the paramount concern is the welfare and well-being of the child. 2. General rule: custody of a child below seven years of age belongs to the mother. 3. Exception: if there are compelling reasons, custody may be denied and granted to another person under Article 214 of the Family Code. 4. Compelling reasons for a mother to lose custody: neglect; abandonment; unemployment and immorality; habitual drunkenness; drug addiction; maltreatment of the child; insanity; affliction with a communicable illness. Related posts: Custody battles over children: what determines fitness of a parent over another? How do our courts determine which parent has the right of custody of the children? Custody battles over children between grandparents and a father or mother

Notes: (1) Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud. (2) Please also read my related posts titled Visitation rights over illegitimate children and What surname should illegitimate children use?

General rule and exception as to a mother's custody of a child below seven

Article 213 of the Family Code of the Philippines states the general rule and the exception as to a mother's custody of a child below seven years of age:

In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

1. General rule: custody of a child below seven years of age belongs to the mother.

2. Exception: if there are compelling reasons, custody may be denied and granted to another party, as provided for by Article 214.

Compelling reasons for a mother to lose custody

The Supreme Court in the case of Tonog vs. CA (G.R. No. 122906, February 7, 2002) enumerated some of these compelling reasons:

• neglect
• abandonment
• unemployment and immorality
• habitual drunkenness
• drug addiction
• maltreatment of the child
• insanity
• affliction with a communicable illness

Paramount consideration in custody disputes is the welfare and well-being of the child

The Court explained that “in custody disputes, it is axiomatic that the paramount criterion is the welfare and well-being of the child. In arriving at its decision as to whom custody of the minor should be given, the court must take into account the respective resources and social and moral situations of the contending parents.”

Below are excerpts of the Tonog ruling (emphasis by boldfacing supplied):

Petitioner contends that she is entitled to the custody of the minor, Gardin Faith, as a matter of law. First, as the mother of Gardin Faith, the law confers parental authority upon her as the mother of the illegitimate minor. Second, Gardin Faith cannot be separated from her since she had not, as of then, attained the age of seven. Employing simple arithmetic however, it appears that Gardin Faith is now twelve years old.

In custody disputes, it is axiomatic that the paramount criterion is the welfare and well-being of the child. In arriving at its decision as to whom custody of the minor should be given, the court must take into account the respective resources and social and moral situations of the contending parents.

In turn, the parents’ right to custody over their children is enshrined in law. Article 220 of the Family Code thus provides that parents and individuals exercising parental authority over their unemancipated children are entitled, among other rights, “to keep them in their company.” In legal contemplation, the true nature of the parent-child relationship encompasses much more than the implication of ascendancy of one and obedience by the other. We explained this in Santos, Sr. v. Court of Appeals:

“The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs. It is a mass of rights and obligations which the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental authority, “there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.”

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

Statute sets certain rules to assist the court in making an informed decision. Insofar as illegitimate children are concerned, Article 176 of the Family Code provides that illegitimate children shall be under the parental authority of their mother. Likewise, Article 213 of the Family Code provides that “[n]o child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” It will be observed that in both provisions, a strong bias is created in favor of the mother. This is specially evident in Article 213 where it may be said that the law presumes that the mother is the best custodian. As explained by the Code Commission:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for “compelling reasons” for the good of the child; those cases must indeed be rare, if the mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation.

This is not intended, however, to denigrate the important role fathers play in the upbringing of their children. Indeed, we have recognized that both parents “complement each other in giving nurture and providing that holistic care which takes into account the physical, emotional, psychological, mental, social and spiritual needs of the child.” Neither does the law nor jurisprudence intend to downplay a father’s sense of loss when he is separated from his child: While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration.

For these reasons, even a mother may be deprived of the custody of her child who is below seven years of age for “compelling reasons.” Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. If older than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person.

In the case at bar, we are being asked to rule on the temporary custody of the minor, Gardin Faith, since it appears that the proceedings for guardianship before the trial court have not been terminated, and no pronouncement has been made as to who should have final custody of the minor. Bearing in mind that the welfare of the said minor as the controlling factor, we find that the appellate court did not err in allowing her father (private respondent herein) to retain in the meantime parental custody over her. Meanwhile, the child should not be wrenched from her familiar surroundings, and thrust into a strange environment away from the people and places to which she had apparently formed an attachment.

Moreover, whether a mother is a fit parent for her child is a question of fact to be properly entertained in the special proceedings before the trial court.

Land titles and issues (4): Requirements for issuance of Original Certificate of Title

The Supreme Court in the case of Recto vs. Republic, G.R. No. 160421, October 4, 2004, outlined the procedures and requirements for any party seeking to legalize ownership of land through the issuance of an Original Certificate of Title. Below is a shortened version of the Court’s decision.

On February 19, 1997, petitioner spouses Philip Recto and Ester C. Recto, filed with the Regional Trial Court of Tanauan, Batangas, Branch 6, an application for registration of title over a 23,209 square meter lot, designated as Lot 806, Cad-424, Sto. Tomas Cadastre, Plan Ap-04-010485, situated in Barangay San Rafael, Municipality of Sto. Tomas, Province of Batangas, under Presidential Decree (P.D.) No. 1529, otherwise known as the Property Registration Decree. They also prayed in the alternative that their petition for registration be granted pursuant to Commonwealth Act (C.A.) No. 141, or the Public Land Act.

Petitioners alleged that on June 4, 1996, they purchased Lot 806 from sisters Rosita Medrana Guevarra and Maria Medrana Torres for the amount of P6,943,534.40. The two, in turn, inherited the lot from their deceased parents, Vicente and Eufemia Medrana. Maria, born on October 22, 1917, declared that since 1945, her father was already the owner of Lot 806. She became aware of her father’s possession of the subject lot in the concept of owner in 1930 when she was 13 years of age. The possession of the subject lot by the Medrana family prior to 1945 was corroborated by Rosita, who testified that in 1935 when she was 13 years of age, she first came to know that her father was the owner of Lot 806. The sisters added that during the lifetime of Vicente, he planted rice and corn on the lot with the help of their tenant. After his demise, they continued to plant the same crops through hired farmers. Petitioners presented the following documentary evidences

(1) Blue Print Copy of the Plan and Technical Description of Lot 806, both certified by Land Management Services (formerly the Bureau of Lands), of the Department of Environment and Natural Resources (DENR);

(2) Tax Declarations of the lot for the years 1948, 1955, 1968, 1974, 1980, 1987, 1989 and 1994 (in the name of Vicente Medrana); 1996 (in the name of Rosita Guevarra and Maria Torres); and 1998 (in the name of Philip and Ester Recto).

(3) Certification of Non-Delinquency for the year 1998 from the Municipal Treasurer of Sto. Tomas, Batangas;

(4) Report from the Community Environment and Natural Resources Office, Department of Environment and Natural Resources (DENR) stating, among others, that –

(a) the entire area is within the alienable and disposable zone as classified under Project No. 30 L.C. Map No. 582 and released and certified as such on December 31, 1925; (Emphasis, supplied)
(b) the lot is not within a reservation area nor within the forest zone;
(c) the lot is not within a previously issued patent, decree or title.
(d) there is no public land application filed for the same land by the applicant or any other person;
(e) the land is covered by Tax Declaration No. 021-02166-A in the name of the predecessor-in-interest and that there is no difference in area;
(f) the lot is agricultural in nature; and
(g) the lot does not encroach upon an established watershed, riverbed and river bank protection.

(5) Report from the Land Management Bureau that the land involved is not covered by any land patent or by land application pending issuance of patent.

(6) Report from the Forest Management Service, DENR that the subject lot falls within Alienable and Disposable lands, Project No. 30 of Sto. Tomas, Batangas, per BFD LC Map No. 582 certified on December 31, 1925.

(7) Report from the Land Management Sector, DENR that Plan Ap-04-010485, Lot 806, Cad-424, Sto. Tomas Cadastre, situated in the Barangay of San Rafael, Municipality of Sto. Tomas, Province of Batangas, is not a portion of nor identical to any previously approved isolated survey.

There being no opposition to the petition from any private individual, an Order of General Default was issued by the trial court.

On September 7, 1998, the court a quo rendered a decision granting the petition for registration. The dispositive portion thereof, reads:

WHEREFORE, and upon previous confirmation of the Order of General Default, this Court hereby adjudicates and decrees Lot 806, Cad-424, Sto. Tomas Cadastre on plan Ap-04-010485, situated in San Rafael, Sto. Tomas, Batangas, with an area of 23,209 square meters, in favor of and in the names of Spouses Philip Recto and Ester C. Recto, Filipino citizens and residents of 1322 Palm Avenue, Dasmariñas Village, Makati City.

Once this Decision shall have become final let the corresponding decree of registration be issued.

SO ORDERED.

The Republic, represented by the Solicitor General appealed to the Court of Appeals contending that petitioners failed to – (1) offer in evidence the original tracing cloth plan of the land; (2) prove possession of the lot for the period required by law; and (3) overthrow the presumption that subject property forms part of the public domain.

On January 16, 2003, the Court of Appeals reversed the decision of the trial court on the sole ground of failure to offer in evidence the original tracing cloth plan of the land.

Petitioners filed a motion for reconsideration praying that in view of their compliance with all the substantive and procedural requirements for registration, save for the submission of the tracing cloth plan, the case be remanded to the trial court for the presentation of the said tracing cloth plan. The Solicitor General, on the other hand, interposed no objection to petitioners’ motion for reconsideration.

On October 17, 2003, the Court of Appeals denied petitioners’ motion for reconsideration. Hence, the instant petition praying for the remand of the case before the trial court.

In its Comment, the Solicitor General manifested that in the interest of justice, he will not to oppose the petition.

Section 14 (1) of Presidential Decree No. 1529 states:

SEC. 14. Who may apply. – The following persons may file in the proper Court of First Instance [now the Regional Trial Court] an application for registration of title to land, whether personally or through their duly authorized representatives:
(1) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier.

On the other hand, Section 48 (b) of Commonwealth Act No. 141, as amended by Section 4 of Presidential Decree No. 1073, provides:

The provisions of Section 48(b) and Section 48(c), Chapter VIII, of the Public Land Act are hereby amended in the sense that these provisions shall apply only to alienable and disposable lands of the public domain which have been in open, continuous, exclusive and notorious possession and occupation by the applicant himself or thru his predecessor-in-interest, under a bona fide claim of acquisition of ownership, since June 12, 1945.

Thus, before one can register his title over a parcel of land, the applicant must show that – (a) he, by himself or through his predecessors-in-interest, has been in open, continuous, exclusive and notorious possession and occupation of the subject land under a bona fide claim of ownership since June 12, 1945 or earlier; and (b) the land subject of the application is alienable and disposable land of the public domain. In the instant case, Rosita and Maria the predecessors-in-interest of petitioners, categorically testified that they, and prior to them their father, had been cultivating and possessing Lot 806 in the concept of owners. Maria, having been born on October 22, 1917, and Rosita on October 29, 1922, were 13 years of age when they became aware of their family’s possession of Lot 806 in 1930 and 1935, respectively. At 13, they were undoubtedly capable and competent to perceive their father’s possession of Lot 806 in the concept of owner. Moreover, the trial court found their testimonies to be worthy of belief and credence. Considering that the judge below is in a better position to pass judgment on the issue, having personally heard the witnesses testify and observed their deportment and manner of testifying, her findings deserve the highest respect.

The fact that the earliest Tax Declaration of the subject lot was for the year 1948 will not militate against petitioners. Note that said 1948 Tax Declaration cancels a previous Tax Declaration (No. 26472), thus substantiating petitioners’ possession of Lot 806 through their predecessor-in-interest even prior to said date. At any rate, in Republic v. Court of Appeals, it was held that the belated declaration of the lot for tax purposes does not necessarily mean that possession by the previous owners thereof did not commence in 1945 or earlier. As long as the testimony supporting possession for the required period is credible, the court will grant the petition for registration. Pertinent portion of the decision, reads –

Petitioner questions the credibility of claimant Divinaflor who testified on the possession of Marcial Listana for the period required by law. The issue of credibility is unavailing considering that the judge below is in a better position to pass judgment on the issue having personally heard the witnesses testify and observed their deportment and manner of testifying. Being in a better position to observe the witnesses, the trial court’s appreciation of the witness’ testimony, truthfulness, honesty, and candor, deserves the highest respect.

A person is competent to be a witness if (a) he is capable of perceiving at the time of the occurrence of the fact and (b) he can make his perception known. True, in 1939, Divinaflor was not born yet, but in 1945, he was four years old, residing in Maramba, Oas, Albay, where the subject lot is located. As his testimony goes, he and Marcial Listana were barrio mates, and that he usually passes by the subject land. The fact that Divinaflor was only a child at the required inception of possession does not render him incompetent to testify on the matter. It is well-established that any child regardless of age, can be a competent witness if he can perceive, and perceiving can make known his perception to others and that he is capable of relating truthfully facts for which he is examined. The requirements of a child’s competence as a witness are: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of communication. There is no showing that as a child, claimant did not possess the foregoing qualifications. It is not necessary that a witness’ knowledge of the fact to which he testifies was obtained in adulthood. He may have first acquired knowledge of the fact during childhood, that is, at the age of four, which knowledge was reinforced through the years, up until he testified in court in 1990. There is reason to reject petitioner’s claim that Divinaflor is incompetent to testify regarding Listana’s possession since it appears undisputed that Divinaflor grew up in Maramba, Oas, Albay, and had occasion to see Listana possessing the land.

Finally, we agree with the Court of Appeals that the belated declaration of the property for tax purposes does not necessarily lead to the conclusion that the predecessors were not in possession of the land as required by law since 1945. Petitioner capitalizes on the fact that the earliest tax declaration presented took effect only in 1980 while the certificate of tax payment is dated 1990. While this Court has held in a long line of cases that tax declarations or tax receipts are good indicia of possession in the concept of owner, it does not necessarily follow that belated declaration of the same for tax purposes negates the fact of possession, especially in the instant case where there are no other persons claiming any interest in Lot 10739.

So also, there is no doubt that Lot 806 is an alienable land of the public domain having been released and certified as such on December 31, 1925. As further certified by the Community Environment and Natural Resources Office of the DENR, the entire area of Lot 806 is an agricultural land; within an alienable and disposable zone; not within a reservation area nor within a forest zone; and does not encroach upon an established watershed, riverbed, and riverbank protection. Petitioners were thus able to successfully meet the requisite for original registration of title, to wit: open, continuous, exclusive and notorious possession and occupation of an alienable and disposable land under a bona fide claim of ownership since June 12, 1945 or earlier.

Nevertheless, the Court of Appeals reversed the decision of the trial court granting the petition for registration on the ground of petitioners’ failure to submit in evidence the original tracing cloth plan of Lot 806. Indeed, the submission of the tracing cloth is a mandatory requirement for registration. However, it was held that while the best evidence to identify a piece of land for registration purposes is the original tracing cloth plan from the Bureau of Lands, blue print copies and other evidence could also provide sufficient identification. In Republic v. Court of Appeals, the Court ruled that the blueprint copy of the cloth plan together with the lot’s technical description duly certified as to their correctness by the Bureau of Lands (Now the Land Management Bureau of the DENR) are sufficient to identify the land applied for registration, thus –

On the first challenge, the petitioner invokes the case of Director of Lands v. Reyes, where it was held that “the original tracing cloth plan of the land applied for which must be approved by the Director of Lands” was “a statutory requirement of mandatory character” for the identification of the land sought to be registered. As what was submitted in the case at bar to identify the subject property was not the tracing cloth plan but only the blueprint copy of the survey plan, the respondent court should have rejected the same as insufficient.

We disagree with this contention. The Court of Appeals was correct when it observed that in that case the applicant in effect “had not submitted anything at all to identify the subject property” because the blueprint presented lacked the approval of the Director of Lands. By contrast —

In the present case, there was considerable compliance with the requirement of the law as the subject property was sufficiently identified with the presentation of blueprint copy of Plan AS-06-000002 (San Pedro v. Director of Lands, CA-G.R. No. 65332-R, May 28, 1981). It should be noted in this connection that the Bureau of Lands has certified to the correctness of the blueprint copy of the plan including the technical description that go with it. Hence, we cannot ignore the fact, absent in the Reyes case, that applicant has provided ample evidence to establish the identity of the subject property. (Emphasis supplied)

Such a view was affirmed by the Court in Republic of the Philippines v. Intermediate Appellate Court, where we held that while the best evidence to identify a piece of land for registration purposes was the original tracing cloth plan from the Bureau of Lands, blueprint copies and other evidence could also provide sufficient identification. This rule was bolstered only recently in the case of Director of Lands v. Court of Appeals, where the Court declared through Chief Justice Marcelo B. Fernan:

We affirm. No reversible error was committed by the appellate court in ruling that Exhibit “O,” the true certified copy of the white paper plan, was sufficient for the purpose of identifying the land in question. Exhibit “O” was found by the appellate court to reflect the land as surveyed by a geodetic engineer. It bore the approval of the Land Registration Commission, and was re-verified and approved by the Bureau of Lands on April 25, 1974 pursuant to the provisions of P.D. No. 239 withdrawing from the Land Registration Commission the authority to approve original survey plans. It contained the following material data: the barrio (poblacion), municipality (Amadeo) and province (Cavite) where the subject land is located, its area of 379 square meters, the land as plotted, its technical descriptions and its natural boundaries. Exhibit “O” was further supported by the Technical Descriptions signed by a geodetic surveyor and attested by the Land Registration Commission. In fine, Exhibit “O” contained all the details and information necessary for a proper and definite identification of the land sought to be registered, thereby serving the purpose for which the original tracing cloth plan is required. The fact therefore that the original survey plan was recorded on white paper instead of a tracing cloth should not detract from the probative value thereof.

In the case at bar, Lot 806 was sufficiently identified by the blue print copy of the plan (Exhibit “R”) and the technical description (Exhibit “S”)[34] thereof both approved by Land Management Services, DENR. Also, per report of the Land Management Sector, Plan Ap-04-010485, Lot 806, Cad-424, Sto. Tomas Cadastre, situated in the Barangay of San Rafael, Municipality of Sto. Tomas, Province of Batangas, is not a portion of, nor identical to any previously approved isolated survey. Petitioners also submitted before the Court of Appeals a certified true copy of the original tracing cloth plan as well as a certification from the Land Registration Authority attesting to the fact that the original plan of Plan-Ap-04-010485 in Diazo Polyester film is on file with their office. Under the circumstances, therefore, the Court of Appeals erred in reversing the decision of the trial court solely on the ground that petitioners failed to present the original tracing cloth plan.

Having met all the requirements for registration of title including the presentation of sufficient evidence to identify the land sought to be registered, there is no more need to remand the case before the trial court for the presentation of the tracing cloth plan.

Family Code of the Philippines: Primer on legitimation

Article 177 Family Code amended by RA 9858 Republic Act No. 9858 “Legitimation of Children Born to Minor Parents” amended Article 177 of the Family Code as of December 20, 2009. The article now reads: “Children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated.” In simple terms, a child conceived or born when either or both parents were below 18 can now be legitimated. Minority is no longer an impediment or legal obstacle. (Previously, biological parents who were below 18 could not avail of legitimation for their child. Their legal remedy was to go through an expensive adoption process.)

Articles 177 up to 182 of the Family Code are the rules in the legitimation of children born outside of wedlock but whose biological parents eventually enter into a valid marriage.

Who can be legitimated?

Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.

How does legitimation take place?

Legitimation takes place by a subsequent valid marriage between parents. The annulment of a voidable marriage does not affect the legitimation.

What are the effects of legitimation?

1. Legitimated children enjoy the same rights as legitimate children.

2. The effects of legitimation retroact to the time of the child's birth.

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

Who can impugn or question a child’s legitimation?

Legitimation may be questioned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues.

Legal impediments or obstacles to legitimation

As it now stands, Article 177 states: “Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.” This means that if at the time of the child’s conception, there is a legal impediment to the marriage of the biological parents, the child cannot be legitimated under Article 177.

For example, if any of the biological parents was validly married to another person at the time of the conception of the child in question, the child cannot be legitimated.

Family Code of the Philippines: Primer on illegitimate children

Summary: 1. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code. (Please read the related post If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?) 2. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. 3. A petition for compulsory recognition of an illegitimate child must be filed during the lifetime of the alleged parent. 4. Illegitimate children must use the surname of their mother. They are under the exclusive parental authority of their mother. RA 9255, however, gives illegitimate children the right to use their biological father’s surname under certain conditions. But the children remain illegitimate even if they use their biological father’s surname in their birth certificates; their father cannot exercise parental authority over them. 5. If the biological father does not acknowledge the child, the entry for middle name in the birth certificate must be left blank. 6. The legitime (share in the inheritance) of each illegitimate child is one-half of a legitimate child’s legitime. 7. Illegitimate children are entitled to financial support. 8. If the mother of an illegitimate child dies, who will exercise parental authority? 9. Related posts: Visitation rights over illegitimate children What surname should illegitimate children use? Computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?

(Note: Click the graphic to download a free PDF newsletter on the topic “Visitation rights over illegitimate children.” This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud.)

Articles 175 and 176 of the Family Code provide for the ways by which illegitimate children can establish their filiation, and their rights as to their surname and inheritance. (Republic Act 9255, approved on February 24, 2004, amended Art. 176.)

Who are illegitimate children?

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code.

How can illegitimate children establish their filiation?

Illegitimate children may establish their filiation (or relationship with their biological parent) in the same way and on the same evidence as legitimate children.

How can the filiation of legitimate children (and of illegitimate children) be proved?

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 judgment; or

2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of these evidence, the legitimate filiation is proved by:

1.] The open and continuous possession of the status of a legitimate child; or

2. Any other means allowed by the Rules of Court and special laws.

What is the difference between voluntary recognition and compulsory recognition of an illegitimate child?

Voluntary recognition must be express such as that in a record of birth appearing in the civil register, a final judgment, a public instrument or private handwritten instrument signed by the parent concerned. The voluntary recognition of an illegitimate child by his or her parent needs no further court action and is, therefore, not subject to the limitation that the action for recognition be brought during the lifetime of the putative parent.

Judicial or compulsory recognition, on the other hand, may be demanded by the illegitimate child of his parents and must be brought during the lifetime of the presumed parents.

(Divinagracia v. Bellosillo, No. L-47407, 12 August 1986, 143 SCRA 356; Victoria C. Tayag, Petitioner, vs. Felicidad A. Tayag-Gallor, Respondent, G.R. No. 174680, March 24, 2008)

Who should file the action to claim the status of an illegitimate child? When should it be filed?

Based on Article 175, the action (or court case, in simpler terms) to claim the status of an illegitimate child must be filed:

• by the guardian of a child who is a minor, or is incapacitated or insane, during the child’s lifetime;
• by the child, upon reaching the age of majority;
• by the child’s heirs if the child dies during minority or insanity, within five years from the death.

If the child dies after reaching the age of majority without filing the action, the heirs cannot file it.

If the ground for filing the action is open and continuous possession of the status of a illegitimate child, it must be filed during the lifetime of the alleged parent. (Article 175, 2nd paragraph)

What surname should illegitimate children use?

(Note: Please read my post “What surname should illegitimate children use?”)

Illegitimate children should use the surname and be under the parental authority of their mother. They are entitled to support in conformity with the Family Code. (Article 176, Family Code)

Republic Act 9255, approved on February 24, 2004, amended Article 176. Under RA 9255, illegitimate children may use surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. The father, however, has the right to file an action before the regular courts to prove non-filiation.

If the father does not recognize the child, the entry for middle name in the birth certificate must be left blank

In the case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, the Supreme Court ruled:

Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the father’s surname.

Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’ surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged child.(Emphasis by boldfacing supplied)

How much is the legitime (share in the inheritance) of an illegitimate child?

The legitime of each illegitimate child is one-half of the legitime of a legitimate child. Please read “Computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half”.

Illegitimate children are entitled to financial support

1. If the illegitimate children have not been recognized by their biological father, they can file a petition for compulsory recognition and financial support. They can ask the court to compel the father to undergo DNA testing. (Please read DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence)

2. If the father has recognized the illegitimate children by signing the birth certificate or through a written document, they can file a petition for Protection Order for support under Section 8, paragraph (g) of RA 9262. (If the father claims that his signature or the document was forged, they can ask the court to compel him to undergo DNA testing.)

Through a Protection Order, the court will order the father and his employer to set aside a certain percentage of his salary to be remitted directly to the children on a monthly basis. If the father or his employer, or both fail to do so, they can be charged with contempt of court.

The Family Code does not provide a specific percentage of the monthly salary for the support. It only provides that amount of support is balanced between the necessities of the person asking for support and the financial capability of the person from whom support is being asked. Support can be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

If the mother of an illegitimate child dies, who will exercise parental authority?

An OFW from the Middle East e-mailed me asking about his right to his illegitimate children since the mother has died. He said that he wants custody of his children, but the maternal grandparents refuse to let the children be with him.

Article 212 of the Family Code states: “In case of absence or death of either parent, the parent present shall continue exercising parental authority.”

I stand to be corrected, but I do not think that Article 212 applies in this situation. Notice that it says “the parent present shall continue exercising parental authority.” But under Article 176 of the Family Code, sole parental authority belongs to the mother. The biological father does not have any parental authority, and so, in case of the mother’s death, what parental authority can he “continue” to exercise?

I think Article 214 of the Family Code provides a possible answer. It says:

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

The question is which grandparents – the maternal grandparents or the paternal grandparents? Again based on Article 176, I will say that it is the grandparents on the illegitimate child’s mother side who should exercise parental authority.

In the situation of that OFW I told you about above, he can of course file a petition in court for parental authority to be granted to him. He can file a petition to this effect or file for adoption of his illegitimate children under RA 8552. Either way, if the court grants his petition, he will have parental authority over his children.

Family Code of the Philippines: Primer on paternity, filiation, and legitimate children

Related post: “If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?”

Articles 163 up to 174 of the Family Code deal with the issues of paternity, filiation, and legitimate children. (We will discuss in the next primer the Family Code provisions on illegitimate children.) At the latter portion of this primer are the highlights of the Supreme Court rulings in “Locsin vs. Locsin” (on the importance of a birth certificate in proving filiation, and the lack of value of an alleged child’s picture taken at the funeral of the alleged father) and “De Jesus vs. Dizon” (on the presumption that children born in wedlock are legitimate).

What are the kinds of filiation of children?

The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate.

What is the status of a child born during the marriage of its parents?

Children conceived or born during the marriage of the parents are legitimate.

What about children conceived by artificial insemination?

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

Who are illegitimate children?

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code.

How can the legitimacy of a child be impugned or questioned?

Legitimacy of a child may be impugned only on the following grounds:

1. That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

2. That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

3. That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

What if the mother states that her child is in fact illegitimate? What if the mother was sentenced by a court as being an adulteress?

The child is considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

What rules govern when the marriage is terminated and the mother marries within 3oo days after the former marriage is terminated?

If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules govern in the absence of proof to the contrary:

1. A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;

2. A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

Who has the burden of proof in proving or disproving the filiation of a child born after 300 days following the termination of the former marriage?

The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage must be proved by whoever alleges such legitimacy or illegitimacy.

When should the action to impugn or question the legitimacy of a child be filed in court?

1. The action to impugn the legitimacy of the child must be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

2. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the paragraph above or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period must be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

In what instances can the heirs of a husband impugn or question the filiation of an alleged child?

The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

1. If the husband should die before the expiration of the period fixed for bringing his action;

2. If he should die after the filing of the complaint without having desisted therefrom; or

3. If the child was born after the death of the husband.

How can the filiation of legitimate children be proved?

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 judgment; or

2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation must be proved by:

1. The open and continuous possession of the status of a legitimate child; or

2. Any other means allowed by the Rules of Court and special laws.

Within what periods should the claim for legitimacy be pursued?

The action to claim legitimacy may be brought by the child during his or her lifetime and will be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs have a period of five years within which to institute the action.

What are the rights of legitimate children?

Legitimate children have the right:

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; and

3. To be entitled to the legitime and other successional rights granted to them by the Civil Code.

Locsin vs. Locsin, G.R. No. 146737, December 10, 2001

A birth certificate is a formidable piece of evidence prescribed by both the Civil Code and Article 172 of the Family Code for purposes of recognition and filiation. However, birth certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence. Its evidentiary worth cannot be sustained where there exists strong, complete and conclusive proof of its falsity or nullity. In this case, respondent's Certificate of Live Birth No. 477 entered in the records of the Local Civil Registry [from which Exhibit "D" was machine copied] has all the badges of nullity. Without doubt, the authentic copy on file in that office was removed and substituted with a falsified Certificate of Live Birth.

Incidentally, respondent's photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation, lest we recklessly set a very dangerous precedent that would encourage and sanction fraudulent claims. Anybody can have a picture taken while standing before a coffin with others and thereafter utilize it in claiming the estate of the deceased.

De Jesus vs. Dizon, G.R. No. 142877, October 2, 2001

The petition involves the case of two illegitimate children who, having been born in lawful wedlock, claim to be the illegitimate scions of the decedent in order to enforce their respective shares in the latter’s estate under the rules on succession.

The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the child’s acknowledgment.

A scrutiny of the records would show that petitioners were born during the marriage of their parents. The certificates of live birth would also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse.

Succinctly, in an attempt to establish their illegitimate filiation to the late Juan G. Dizon, petitioners, in effect, would impugn their legitimate status as being children of Danilo de Jesus and Carolina Aves de Jesus. This step cannot be aptly done because the law itself establishes the legitimacy of children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional instances the latter’s heirs, can contest in an appropriate action the legitimacy of a child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected.

Family Code of the Philippines: Primer on legal separation

Men and women in troubled marriages have a variety of options under the Family Code in ending their relationship. At the very least, spouses can ask the courts for the judicial separation of their property as provided for in Articles 134 up to 142. Under this option, the conjugal property is liquidated and each spouse gets his or her own respective share. But the marital ties still remain. At the opposite end of the spectrum of legal options is “declaration of nullity of the marriage” with Article 36 of the Family Code as the most commonly used justification. The conjugal property is also liquidated, and more importantly, the spouses are free to marry other persons.

The Family Code, under Articles 55 to 67, also provides for “legal separation” where the conjugal property is liquidated, and the spouses are free to live independently of each other but without the right to marry other persons since the marriage ties are still binding.

What are the grounds for legal separation?

1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

5. Drug addiction or habitual alcoholism of the respondent;

6. Lesbianism or homosexuality of the respondent;

7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

8. Sexual infidelity or perversion;

9. Attempt by the respondent against the life of the petitioner; or

[10] Abandonment of petitioner by respondent without justifiable cause for more than one year.

The term "child" shall include a child by nature or by adoption.

Under what circumstances may the petition for legal separation be denied?

The petition may be denied on any of the following grounds:

1. Where the aggrieved party has condoned the offense or act complained of;

2. Where the aggrieved party has consented to the commission of the offense or act complained of;

3. Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

4. Where both parties have given ground for legal separation;

5. Where there is collusion between the parties to obtain decree of legal separation; or

6. Where the action is barred by prescription.

When should the petition for legal separation be filed?

An action for legal separation shall be filed within five years from the time of the occurrence of the cause.

What is the so-called “cooling-off period”?

An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.

What are the duties of the Family Court in petitions for legal separation?

1. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.

2. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.

What happens when the petition is filed?

1. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.

2. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court.

3. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children.

What does Article 49 provide for?

Article 49 of the Family Code states, “During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent.”

What are the effects if the court grants the petition for legal separation?

1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;

2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43[2];

3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of the Family Code; and

4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law.

What about the donations made by the spouses to each other?

The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.

The action to revoke the donation must be brought within five years from the time the decree of legal separation has become final.

What if there is reconciliation between the spouses while the petition is being heard by the court?

1. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation.

2. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and

3. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court's order containing the foregoing shall be recorded in the proper civil registries.

What protection, if any, is provided for the creditors of the spouses?

Article 67 provides that the agreement to revive the former property regime shall be executed under oath and shall specify:

1. The properties to be contributed anew to the restored regime;

2. Those to be retained as separated properties of each spouse; and

3. The names of all their known creditors, their addresses and the amounts owing to each.

The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties.

The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim.

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

5. 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.

Family Code of the Philippines: Primer on rights and obligations between husband and wife

The rights and obligations of husbands and wives are covered by Title III of the Family Code, specifically from Articles 68 up to 73. Please surf over to my Salt and Light blog for a primer on the rights and obligations of husbands and wives, plus a discussion on the Biblical views about the roles of men and women.

Article 68 provides that “the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” The legal word for living together and enjoying the rights and privileges of marriage is “consortium” or “coverture.” The case of Ilusorio vs. Ilusorio-Bildner (G.R. No. 139789 July 19, 2001 and G.R. No. 139808 July 19, 2001) revolved around the following issue: “May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.”

The decision penned by Justice Pardo states among other things that “coverture” is prompted by the spontaneous, mutual love and affection between husband and wife and cannot be enforced by any legal mandate or court order. The Court said:

“No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.”

Family Code of the Philippines: Primer on void and voidable marriages

(Note: Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud.)

The complete provisions of the Family Code on void and voidable marriages are Articles 35 up to 54.

What marriages are void from the beginning?

Article 35 of the Family Code provides that the following marriages are void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless the marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered under the preceding Chapter;

(4) Those bigamous or polygamous marriages not falling under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

Update as of April 25, 2018: “SC recognizes divorce in marriage with foreigners” (Rappler) The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners. Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.” “Republic of the Philippines v. Marelyn Tanedo Manalo” G.R. No. 221029. April 24, 2018 Based on a clear and plain reading of paragraph 2 of Article 26 (Family Code), the provision only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.”

What is the famous “Article 36” of the Family Code? What is psychological incapacity?

Article 36 states that “a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

The Family Code does not define what “psychological incapacity” is. But the Supreme Court in several decisions has clarified what “psychological incapacity” is. In the case of Santos vs. Court of Appeals, the Supreme Court stated:

"Psychological incapacity under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."

What marriages are considered incestuous and thus void?

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

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

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

What marriages are void by reasons of public policy?

The following marriages are void from the beginning for reasons of public policy:

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other party, killed his own wife or her own husband, or the other person's spouse.

The Family Code prohibits marriage “between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree.” What does “fourth civil degree” mean?

For example, Boy and Girl are first cousins:

Boy’s father is A. Girl’s mother is B. A and B are brother and sister. From Boy to his father A, one civil degree. From A to his parents (Boy’s grandparents), two civil degrees. From the parents down to B, three. From B to Girl, four civil degrees.

Boy and Girl therefore cannot get married since they are related within four civil degrees.

Who are people related by four civil degrees (and are therefore prohibited from getting married)?

First cousins (as in the example I gave above) are related by four civil degrees. An uncle and a niece (or an aunt and a nephew) are also within four civil degrees.

Can persons who find out that their marriage is bigamous simply declare by themselves that the marriage is void?

No, they cannot. They must file a petition asking the court to declare the marriage as void. (Article 40)

If the husband or wife has been missing for several years and could not be located despite earnest and diligent efforts, can the present spouse get married again?

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

What step must the present spouse take to get married again?

For the purpose of contracting the subsequent marriage under Article 41, the spouse present must file a summary proceeding for the declaration of presumptive death of the absentee.

What happens if the spouse declared presumptively dead reappears later on?

The subsequent marriage is automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance must be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person; due notice must be given to the spouses of the subsequent marriage. The fact of reappearance can be disputed in court.

What are the effects if the subsequent marriage is terminated?

(1) The children of the subsequent marriage conceived before its termination are legitimate;

(2) The absolute community of property or the conjugal partnership, as the case may be, will be dissolved and liquidated, but if either or both spouses contracted marriage in bad faith, their share of the net profits of the community property or conjugal partnership property will be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage will remain valid, except that if the donee contracted the marriage in bad faith, the donations will be revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if the designation is stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the innocent spouse by testate and intestate succession.

Republic of the Philippines vs. Liberty Albios, G.R. No. 198780, October 16, 2013 Issue: Is a marriage, entered into for the sole purpose of acquiring American citizenship in exchange for $2,000, void on the ground of lack of consent? Background facts: Liberty Albios asked Daniel Lee Fringer to marry her so that she can acquire American citizenship. In return, Albios promised to give Fringer $2,000. After the wedding, they went their separate ways. Fringer returned to the United States and never again communicated with Albios. In turn, Albios did not pay Fringer the $2,000 because he never processed her petition for citizenship. Regional Trial Court rules that Albios and Fringer’s marriage is void for lack of consent Albios filed with the Regional Trial Court a petition for declaration of nullity of her marriage with Fringer. She described their marriage as made in jest and, therefore, null and void ab initio (from the start). The RTC ruled that the essential requisite of consent was lacking and that when marriage was entered into for a purpose other than the establishment of a conjugal and family life, the marriage was a farce. Court of Appeals affirms RTC ruling The Court of Appeals affirmed the RTC ruling that the essential requisite of consent was lacking. The CA stated that Albios and Fringer clearly did not understand the nature and consequence of getting married and that their case was similar to a marriage in jest. It further explained that Albios and Fringer never intended to enter into the marriage contract and never intended to live as husband and wife or build a family. It concluded that their purpose was primarily for personal gain, that is, for Albios to obtain foreign citizenship, and for Fringer, the consideration of $2,000. Supreme Court rules that the marriage is valid Albios and Fringer's marriage is not void ab initio (from the start) and continues to be valid and subsisting. Consent was not lacking between Albios and Fringer. Their consent was conscious and intelligent as they understood the nature and the beneficial and inconvenient consequences of their marriage. Their consent was freely given as best evidenced by their conscious purpose of acquiring American citizenship through marriage. Such plainly demonstrates that they willingly and deliberately contracted the marriage. Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of life that a couple chooses to lead. Thus, marriages entered into for other purposes, limited or otherwise, such as convenience, companionship, money, status, and title, provided that they comply with all the legal requisites, are equally valid. Love, though the ideal consideration in a marriage contract, is not the only valid cause for marriage. Other considerations, not precluded by law, may validly support a marriage. Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with Fringer to be declared void would only further trivialize this inviolable institution. The Court cannot declare such a marriage void in the event the parties fail to qualify for immigration benefits, after they have availed of its benefits, or simply have no further use for it. These unscrupulous individuals cannot be allowed to use the courts as instruments in their fraudulent schemes. Albios already misused a judicial institution to enter into a marriage of convenience; she should not be allowed to again abuse it to get herself out of an inconvenient situation.

What are the reasons for annulling a marriage?

Article 45 provides that a marriage may be annulled for any of the following causes existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

(2) That either party was of unsound mind, unless after coming to reason, the party freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless the party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, the party afterwards freely cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and the incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

Article 45, paragraph (3) speaks of fraud that may annul a marriage. What constitutes fraud?

Any of the following circumstances constitutes fraud referred to in Number 3 of Article 44:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism, homosexuality, or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity constitutes fraud that will give grounds for the annulment of marriage.

Who can file for the annulment of a marriage and within what periods?

(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before the party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other spouse's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;

(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage.

During the course of the trial for the annulment or declaration of nullity of marriages, how can the rights of the spouses and their children as to support, visitation rights, etc. be ensured?

Article 49 provides that during the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court must provide for the support of the spouses and the custody and support of their common children. The Court must give paramount consideration to the moral and material welfare of the children and their choice of the parent with whom they wish to remain under Title IX. It must also provide for appropriate visitation rights of the other parent.

What are the things to be decided upon by the Court in cases of annulment or declaration of nullity?

Article 50 provides that the final judgment of the Court must provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been decided upon in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership must be notified of the proceedings for liquidation.

How can the rights of the children be guaranteed?

Article 51 provides that in the partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, must be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

Does this mean that the children will no longer inherit from their parents later on?

No, the delivery of the presumptive legitimes will not prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents. But the value of the properties already received under the decree of annulment or absolute nullity will be considered as advances on their legitime. (In simpler terms, the children will still inherit from their parents later on, minus what they have already received as their presumptive legitime.)

What are required to be done with the judgment, partition, etc.?

The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes must be recorded in the appropriate civil registry and registries of property; otherwise, it will not affect third persons.

When can the former spouses get married again to other persons?

Article 53 provides that either of the former spouses may marry again after complying with the requirements of Article 52; otherwise, the subsequent marriage will be void.

What is the status of the children in these cases?

Article 54 provides that children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory are legitimate. Children conceived or born of the subsequent marriage under Article 53 are also legitimate.

Related posts: 1. If husband and wife have not seen each other for more than seven years, does it mean their marriage is already void? 2. If a person gets married while his petition for declaration of nullity of his first marriage is ongoing, can he be charged with bigamy? 3. Quickie marriages under Article 34 of the Family Code: Is the marriage void if the affidavit of marital cohabitation is false? 4. Legal lessons from the Kris Aquino - James Yap breakup: legal separation, annulment, declaration of nullity, essential and formal requisites of marriage 5. Irreconcilable differences not a ground for declaring a marriage null and void 6. When a man is married to or living in with several women successively or simultaneously, who has the right to inherit from him? 7. Family Code of the Philippines: Primer on marriage