Primer on the Family Code of the Philippines: Absolute community of property

Articles 88 up to 104 of the Family Code are the governing laws on the system of property relations between spouses known as ACP or absolute community of property. Under this system, the husband and wife become the co-owners of all the properties they bring into the marriage and those they acquire during the marriage, subject to exceptions under Art. 92. The committee which crafted the Family Code believed that this system was in keeping with the accepted practice of Filipino families of the husband and wife treating each other as co-owners of the properties acquired before and during marriage.

When does the ACP start?

The absolute community of property between spouses commences at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (Art. 88)

Can there be a waiver of the rights, shares and effects of the ACP?

No waiver of rights, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the waiver must appear in a public instrument and must be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (Art. 89)

What constitutes community property?

Unless otherwise provided in this Chapter or in the marriage settlements, the community property consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (Art. 91)

What are excluded from the community property?

1. Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they form part of the community property;

2. Property for personal and exclusive use of either spouse. However, jewelry form part of the community property;

3. Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property. (Art.92)

What is the presumption regarding property acquired during the marriage?

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

What will the ACP be liable for?

Art. 94 provides that the absolute community of property is liable for:

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

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

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

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

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

6. Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement;

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

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

9. Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

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

If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses are solidarily liable for the unpaid balance with their separate properties.

What about losses or winnings in games of chance like sweepstakes or the lotto?

Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, must be borne by the loser and must not be charged to the community but any winnings therefrom form part of the community property. (Art. 95)

Who has the right to the administration and enjoyment of the community property?

Art. 96 provides that the administration and enjoyment of the community property belong to both spouses jointly. In case of disagreement, the husband's decision prevails, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance is void. However, the transaction will be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

Can the husband or wife dispose of his or her share in the community property?

Either spouse may dispose by will of his or her interest in the community property. (Art. 97)

Can either spouse make donations out of the community property?

Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (Art. 98)

How is the absolute community dissolved?

Art. 99 provides that the absolute community terminates:

1. Upon the death of either spouse;

2. When there is a decree of legal separation;

3. When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage under Articles 134 to 138.

What happens to the absolute community if the spouses are separated?

Art. 100 provides that the separation in fact between husband and wife shall not affect the regime of absolute community except that:

1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

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

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

What are the remedies of an abandoned spouse with regards the community property?

Art. 101 provides that if a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

When is a spouse deemed to have abandoned the other?

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

What is the procedure in the liquidation of the absolute community assets and liabilities?

Art. 102 provides that upon dissolution of the absolute community regime, the following procedure shall apply:

1. An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse.

2. The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94.

3. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

4. The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

5. The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51. (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain.

Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

What is the procedure in the liquidation of the community property upon the death of a spouse?

Art. 103 provides that upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Primer on the Family Code of the Philippines: Donations by reason of marriage

Articles 82 to 87 of the Family Code are the governing laws on donations between spouses.

What are donations by reasons of marriage?

Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (Art. 82)

What rules govern this kind of donations?

These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (Art. 83)

Is there a limit to the donations between spouses?

If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. (Art. 84)

What rules govern donations of future property?

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

Can property subject to encumbrances be donated?

Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (Art. 85)

What are the grounds for revoking a donation by reason of marriage?

Article 86 provides that a donation by reason of marriage may be revoked by the donor in the following cases:

1. If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;

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

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

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

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

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

What about donations during marriage?

Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (Art. 87)

Heirs and inheritance (Part 13): When a man is married to or living in with several women successively or simultaneously, which woman has the right to inherit from him?

The Cariňo vs. Cariňo case decided by the Supreme Court involved two Susans (one surnamed Nicdao and the other one Yee) who were married to the same man, SPO4 Santiago S. Cariño, and who between the two Susans was entitled to the death benefits of the deceased. This decision, however, applies to situations where a man (or woman, for that matter) may be married to or cohabiting with several persons, successively or simultaneously, and who among the parties may be entitled to inherit from the man when he dies.

Summary: The marriage between Susan Nicdao and SPO4 Cariño is void for having been solemnized without the necessary marriage license.Their property relations are governed by Article 147 of the Family Code. Susan Yee’s marriage to SPO4 Cariño is likewise void because it was solemnized without first obtaining a judicial decree declaring his marriage to Nicdao void. Their property relations are governed by Article 148 of the Family Code. Susan Yee is not entitled to any of the death benefits that Susan Nicdao was able to collect. Susan Nicdao, under Article 147 of the Family Code, is entitled to only one half of the death benefits. The other half goes to her children with SPO4 Cariño (Sahlee and Sandee) as their inheritance. Under the rules on intestate succession, Susan Nicdao is not an heir of SPO4 Cariño.

Facts of the case:

1. During his lifetime, SPO4 Santiago S. Cariño contracted two marriages:

• First marriage on June 20, 1969, with Susan Nicdao Cariño (Susan Nicdao or Nicdao, for brevity), with whom he had two offsprings, namely, Sahlee and Sandee Cariño;
• Second marriage on November 10, 1992, with Susan Yee Cariño (Susan Yee or Yee, for brevity), with whom he had no children in their almost ten year cohabitation starting way back in 1982.

2. In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes complicated by pulmonary tuberculosis. He passed away on November 23, 1992, under the care of Susan Yee, who spent for his medical and burial expenses.

3. Both Susan Nicdao and Susan Yee filed claims for monetary benefits and financial assistance pertaining to the deceased from various government agencies. Susan Nicdao was able to collect a total of Php146,000.00 from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,” while Susan Yee received a total of Php 21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).”

4. On December 14, 1993, Susan Yee filed a case for collection of sum of money against Susan Nicdao asking her to return at least one-half of the one hundred forty-six thousand pesos (Php 146,000.00) collectively denominated as “death benefits” which Nicdao received from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons, Nicdao failed to file her answer, prompting the trial court to declare her in default.

5. Susan Yee admitted that her marriage to SPO4 Santiago S. Cariño took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between Susan Nicdao and SPO4 Cariño. She, however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of SPO4 Cariño, where she met Nicdao who introduced herself as the wife of the deceased.

To bolster her action for collection of sum of money, Susan Yee contended that the marriage of Susan Nicdao and SPO4 Cariño is void ab initio because it was solemnized without the required marriage license. In support, she presented 1) the marriage certificate of the deceased and the petitioner which bears no marriage license number; and 2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro Manila, which reads –

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969. Hence, we cannot issue as requested a true copy or transcription of Marriage License number from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose it may serve.

6. On August 28, 1995, the trial court ruled in favor of Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which was paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in the amount of P5,000.00, and costs of suit.

7. On appeal by Susan Nicdao to the Court of Appeals, the CA affirmed in whole the decision of the trial court. Nicdao then appealed to the Supreme Court.

The Supreme Court’s ruling

1. The marriage between Susan Nicdao and SPO4 Cariño is void for having been solemnized without the necessary marriage license. Their property relations are governed by Article 147 of the Family Code. This article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license.

2. Susan Yee’s marriage to SPO4 Cariño is likewise void because it was solemnized without first obtaining a judicial decree declaring his marriage to Nicdao void. Their property relations are governed by Article 148 of the Family Code. This article covers the property regime of bigamous marriages, adulterous relationships, relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man.

3. Under Article 148, the disputed Php 146,000.00 from MBAI, NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly remunerations, incentives and benefits from governmental agencies earned by SPO4 Cariño as a police officer. They are not owned in common by Susan Yee and SPO4 Cariño, but belong to the deceased alone and Yee has no right whatsoever to claim the amount. By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs. And Yee, not being the legal wife of SPO4 Cariño, is not one of them.

Under Article 147, one-half of these “death benefits” belongs to Susan Nicdao as her share in the property regime. By intestate succession, the other half of the benefits belongs to his legal heirs, namely, his children with Susan Nicdao.

(Note: The narration of facts and the ruling above are from the Supreme Court decision, but was edited, with numbered paragraphs for example, for easier comprehension by laymen.)

Family Code of the Philippines: Primer on the property relations between husband and wife

Articles 74 up to 148 from Title IV of the Family Code are the governing laws on the property relations between husband and wife. (Note: Article 111 of the Family Code has been amended by RA 10572.)

What governs the property relationship between husband and wife?

Article 74 provides that the property relationship between husband and wife are governed in the following order:

1. By marriage settlements executed before the marriage;

2. By the provisions of this Code; and

3. By the local custom.

What are the property regimes that may be agreed upon by the future spouses?

The future spouses may, in the marriage settlements, agree upon the (1) regime of absolute community, (2) conjugal partnership of gains, (3) complete separation of property, or (4) any other regime.

In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code will govern. (Art. 75)

Can modifications be made to the marriage settlements?

Art. 76 provides that in order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136.

Art. 77 further provides that the marriage settlements and any modification thereof must be in writing, signed by the parties and executed before the celebration of the marriage. They will not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties.

What about minors and marriage settlements?

A minor who according to law may contract marriage may also execute his or her marriage settlements, but they are valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of the Family Code. (Art. 78.)

What if one of the future spouses was sentenced in a criminal case and the sentence carries with it civil interdiction (prohibition from exercising certain civil and political rights)?

Art. 79 provides that for the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it is indispensable for the guardian appointed by a competent court to be made a party.

What governs the property relations of spouses?

In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses are governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. (Art. 80.)

Are there exceptions?

Art. 80 provides that the rule does not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.

What if the marriage does not push through?

Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, are rendered void if the marriage does not take place. But stipulations that do not depend upon the celebration of the marriages shall be valid. (Art. 81)

Can an unwed mother avail of the benefits of the Solo Parents Welfare Act?

Through an anonymous comment posted in my article on “Support for an abandoned woman and her children,” I was informed that in one case, the Social Welfare and Development Office of a town refused to give assistance to an unwed mother. The SWD reportedly required the unwed mother to present either the death certificate of the spouse or of a decree of annulment of the marriage.

Section 3, paragraph [8] of RA 8972, in the Definition of Terms, expressly includes unwed mothers (and unwed fathers!) as among those included in the term “solo parent,” and so they can be recipients of the benefits of this law. The paragraph defines a solo parent as an “unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution.”

Financial support for abandoned woman and her children

Summary: 1. If you and your children have been abandoned by your husband or live-in partner, you can compel him to give financial support by filing a petition for Protection Order under RA 9262. 2. In filing this petition, you can get free legal help from the Public Attorneys Office or the Integrated Bar of the Philippines chapter offices. You can file the petition with the Family Court of the place where you live. 3. Support includes everything necessary for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of your family. 4. You can ask for support pendente lite (while the case is ongoing). 5. The Family Court judge will set the amount of support in proportion to your needs and the resources of your husband or live-in partner. 6. In the Protection Order, the judge will direct the employer of your husband or live-in partner to remit the support directly to you and your children. 7. If your husband or live-in partner and his employer disregard the Protection Order, you can ask the judge to cite them for contempt of court. The penalty for contempt is imprisonment or fine.

(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.)

One question that has been repeatedly asked me is, “How can a woman or her children, abandoned by the husband or live-in partner, get support for their financial needs?” Here’s a brief primer on the issue of support.

What law governs support?

The specific provisions of the Family Code of the Philippines on support can be found in Title VIII, Articles 194 up to 208.

What does support consist of?

Article 194 of the Family Code defines “support” as comprising everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

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

During proceedings in court for legal separation, annulment of voidable marriage or declaration of nullity, how will support be provided for?

Article 198 of the Family Code provides:

“During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order.”

Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC on how our courts determine the amount of support)

How much is the amount of support to be granted?

Article 201 provides that the amount of support, in the cases referred to in Articles 195 and 196, should be in proportion to the resources or means of the giver and to the necessities of the recipient.

Can support be reduced or increased?

Article 202 provides that 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 it.

When can support be demanded? When shall payment be made?

Article 203 provides that the obligation to give support is demandable from the time the person who has a right to receive it needs it for maintenance, but it cannot be paid except from the date of judicial or extra-judicial demand.

Support pendente lite (while the case is being heard in court) may be claimed according to the Rules of Court.

Payment must be made within the first five days of each corresponding month. When the recipient dies, his heirs cannot be obliged to return what he has received in advance.

What options, if any, are there for the person obliged to give support?

Article 204 provides that the person obliged to give support has the option to fulfill the obligation either:

(1) by paying the allowance fixed, or

(2) by receiving and maintaining in the family dwelling the person who has a right to receive support.

The second alternative cannot be used if in case there is a moral or legal obstacle.

What rights, if any, do family relatives or strangers have when they render support to the abandoned woman and her children?

Article 206 provides that when, without the knowledge of the person obliged to give support, it is given by a stranger, the latter have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed.

Article 207 also provides that when the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. Article 207 particularly applies when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed.

What other laws provide assistance to women abandoned by their husbands or live-in partners?

1. Republic Act 8972 or the “Solo Parents Welfare Act of 2000” provides benefits to single parents. For more information, please refer to my primer on RA 8972 .

2. Republic Act 9262 or the “Anti-Violence Against Women and their Children Act of 2004” provides under Section 5, paragraph (e), sub-paragraph (2) that it is a crime to deprive or threaten to deprive the woman or her children of financial support legally due her or her family, or to deliberately provide the woman's children insufficient financial support.

How can this right under RA 9262 be availed of?

The abandoned woman or her children can ask the Family Court to issue a Protection Order. Section 8, paragraph (g) of RA 9262 states that the Protection Order will

“direct the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court.”

Hold Departure Order under RA 9262

Section 36, Rule V of the Implementing Rules and Regulations of RA 9262 expressly allows the issuance of a Hold Departure Order against the man; for example, if he is an OFW or a foreigner, so that he cannot leave the country while the petition is being heard. Section 36 states:

Hold Departure Order. – The counsel for the victim-survivor or applicant may request the court for a Hold Departure Order in the application or petition for protection order. The court shall expedite the process of issuance of a hold departure order in cases prosecuted under the Act.

Section 36 of the IRR implements Section 37 of RA 9262. For more information on this matter, please refer to my previous article on Protection Orders.

What if the husband is working abroad and refuses to communicate with and support the woman and her kids?

The problem here is that the husband is outside the jurisdiction of Philippine courts. One solution can be, if the husband returns home to the Philippines for whatever reason, the abandoned woman can immediately file a petition for Protection Order under RA 9262 and at the same time ask the court to issue a Hold Departure Order under Section 37.

Another long term solution is to ask Congress to pass a law or for the appropriate government agencies (like the POEA) to implement regulations similar to those imposed on Filipino seamen. As part of the employment contract, a certain percentage of the husband’s salary should be mandated to be remitted to the family here in the Philippines.

How courts determine the amount of financial support in petitions for legal separation, annulment of voidable marriage, or declaration of nullity of marriage

The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the procedures that our Family Court judges must follow on these issues of custody and amount of financial support. Please take note that:

1. This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

2. This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the MCLE seminars I am attending say that they also use the Rule on Provisional Orders as guidelines in granting orders in RA 9262 cases whenever appropriate.

How the courts determine the amount of financial support for the spouses

Article 68 the Family Code states that “the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Thus, a husband or wife may demand from the other spouse financial support. Section 2 of the Supreme Court Rule on Provisional Orders states:

In determining support for the spouses, the court may be guided by the following rules:

(a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership.

(b) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage.

(c) The court may likewise consider the following factors:

(1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment;

(2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse’s future earning capacity;

(3) the duration of the marriage;

(4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market;

(5) the needs and obligations of each spouse;

(6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse;

(7) the age and health of the spouses;

(8) the physical and emotional conditions of the spouses;

(9) the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living; and

(10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from the salary of the spouse.

How the courts determine the amount of financial support for children, whether legitimate or illegitimate

The Family Code both provides that legitimate (Article 174)  and illegitimate children (Article 176) are entitled to support. Section 3 of the Supreme Court Rule on Provisional Orders states:

The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise consider the following factors:

(1) the financial resources of the custodial and non-custodial parent and those of the child;

(2) the physical and emotional health of the child and his or her special needs and aptitudes;

(3) the standard of living the child has been accustomed to;

(4) the non-monetary contributions that the parents will make toward the care and well-being of the child,

The Family Court may direct the deduction of the provisional support from the salary of the parent.

What happens in an annulment case if the respondent does not file an Answer?

Summary: If the respondent in a petition for annulment (voidable marriages) or for declaration of nullity (void marriages) does not file an Answer or if the Answer does not tender an issue: 1. The Family Court should not declare him or her in default. 2. The court must order the public prosecutor (fiscal) to investigate whether collusion exists between the parties.

In most civil cases, when the defendant fails to file an Answer, the court upon motion by the complainant, may declare the defendant in default. In sports competitions, the team or player present is declared automatically as the winner. In our legal system, however, the complainant must still present his evidence, and the court decides the case on the basis of the evidence submitted.

But in petitions for annulment (voidable marriages) or declaration of nullity (void marriages), there is no declaration of default when the respondent fails to file an Answer. The procedure in annulment cases is provided for in A. M. No. 02-11-10-SC. You can find a copy in the Legal Procedures section of my Family Matters website. Section 8 of the Rule states the following:

(2) If the respondent fails to file an answer, the court should not declare him or her in default.

(3) Where no answer is filed or if the answer does not tender an issue, the court must order the public prosecutor to investigate whether collusion exists between the parties.

Even before the Supreme Court issued this Rule, our laws prohibited declaration of default in legal separation or annulment cases. The Court in the case of Ancheta vs. Ancheta (G.R. No. 145370, March 4, 2004) chided the trial court judge and the fiscal for their abject failure to follow the proper procedures. Excerpts of this decision are posted below (emphasis by boldfacing supplied).

The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the trial court. However, we cannot but express alarm at what transpired in the court a quo as shown by the records. The records show that for the petitioner’s failure to file an answer to the complaint, the trial court granted the motion of the respondent herein to declare her in default. The public prosecutor condoned the acts of the trial court when he interposed no objection to the motion of the respondent. The trial court forthwith received the evidence of the respondent ex-parte and rendered judgment against the petitioner without a whimper of protest from the public prosecutor. The actuations of the trial court and the public prosecutor are in defiance of Article 48 of the Family Code, which reads:

Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.

The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides:

Sec. 6. No defaults in actions for annulment of marriage or for legal separation.— If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exits, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.

In the case of Republic vs. Court of Appeals, this Court laid down the guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State:

The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

This Court in the case of Malcampo-Sin vs. Sin reiterated its pronouncement in Republic v. Court of Appeals, regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. The trial court, abetted by the ineptitude, if not sheer negligence of the public prosecutor, waylaid the Rules of Court and the Family Code, as well as the rulings of this Court.

The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well.

A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated.

Our Constitution is committed to the policy of strengthening the family as a basic social institution. Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the State is vitally interested. The State can find no stronger anchor than on good, solid and happy families. The break-up of families weakens our social and moral fabric; hence, their preservation is not the concern of the family members alone. Whether or not a marriage should continue to exist or a family should stay together must not depend on the whims and caprices of only one party, who claims that the other suffers psychological imbalance, incapacitating such party to fulfill his or her marital duties and obligations.

Custody battles over children: what determines fitness of a parent over another?

Summary: 1. In custody disputes, the paramount criterion 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 party under Article 214 of the Family Code. 4. The factors that determine the fitness of any parent are: - the ability to see to the physical, educational, social and moral welfare of the children, and - the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents. Related posts: Custody battles over children between grandparents and a father or mother Can a mother be deprived of custody of her child? How do our courts determine which parent has the right of custody of the children?

(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.)

Nothing can be more traumatic than a husband and a wife’s battle for custody of their children, except probably for a child to know that his or her parents are in a bitter, legal tug-of-war for his or her custody.

Welfare of the minors is the controlling consideration; factors that determine fitness of a parent

The Supreme Court in the case of Bondagjy vs. Bondagjy (G.R. No. 140817, December 7, 2001) stated that the welfare of the minors is the controlling consideration on the issue. The Court also said that the factors that determine the fitness of any parent are:

1. the ability to see to the physical, educational, social and moral welfare of the children, and

2. the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.

Excerpts from the Supreme Court decision

Posted below are excerpts of the Bondagjy decision (emphasis by boldfacing supplied). The “PD 1083” mentioned in the decision refers to the Code of Muslim Personal Laws.

1. Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back to Catholicism upon their separation, still bound by the moral laws of Islam in the determination of her fitness to be the custodian of her children?

The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a Muslim.

Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.
 
The record shows that petitioner is equally financially capable of providing for all the needs of her children. The children went to school at De La Salle Zobel School, Muntinlupa City with their tuition paid by petitioner according to the school’s certification.

2. The welfare of the minors is the controlling consideration on the issue.

In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take into account all relevant considerations.

Article 211 of the Family Code provides that the father and mother jointly exercise parental authority over the persons of their common children.

Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated, the father and mother must jointly exercise just and reasonable parental authority and fulfill their responsibility over their legitimate children.

Either parent may lose parental authority over the child only for a valid reason. In cases where both parties cannot have custody because of their voluntary separation, we take into consideration the circumstances that would lead us to believe which parent can better take care of the children. Although we see the need for the children to have both a mother and a father, we believe that petitioner has more capacity and time to see to the children’s needs. Respondent is a businessman whose work requires that he go abroad or be in different places most of the time. Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the contrary, is given to the mother.

3. But the award of custody to the wife does not deprive the husband of parental authority. In the case of Silva v. Court of Appeals, we said that:

“Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

Is bigamy committed when a person gets married to another party while his or her petition for annulment of a previous marriage is pending in court?

Summary: 1. The Supreme Court has declared in several cases that a person commits bigamy if he or she gets married to another party while the first marriage is subsisting, even if such marriage is subsequently declared null and void. Abunado vs. People, G.R. No. 159218, March 30, 2004 Tenebro vs. CA, G.R. No. 150758, February 18, 2004 2. If the court declares the marriage null and void, can there be a subsequent marriage immediately? Some people want to get married immediately after they have received the copy of the court’s decision granting the petition for declaration of nullity of their first marriage. This is wrong. At what point in time can a subsequent marriage take place? Please take note of Sections 21 to 23 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Only when these sections have been complied with can a subsequent marriage take place.

The Family Code of the Philippines speaks of marriages that are void ab initio, that is, void or without any legal effect from the very beginning, subject to certain exceptions like the legitimacy of children, etc. 

Some people mistakenly believe that since their marriage is void from the very beginning, they can simply take the law into their own hands and get married again to other parties without resorting to legal procedures. But Article 40 of the Family Code prohibits people from taking the law into their own hands.

(As I have noted in previous posts, legally speaking, a petition for annulment is for voidable marriages while declaration of nullity is for void marriages. The term "annulment" however is used by people on the street as a generic term referring both to void and voidable marriages.)

Some people, on the other hand, cannot wait until after the resolution of their petition for annulment; they get married even while the case is pending in court. Still other people, when charged with bigamy, subsequently file a petition for annulment or declaration of nullity, thinking that if the first marriage is declared void, then the criminal case for bigamy no longer has any basis. In legal terms, the petition for annulment or declaration of nullity is used by the accused as defense in the bigamy case by claiming that such is a prejudicial question.

The Supreme Court has declared in several cases that a person commits bigamy if he or she gets married to another party while the first marriage is subsisting, even if such marriage is subsequently declared null and void. Thus, the Court ruled in Abunado vs. People, G.R. No. 159218, March 30, 2004:

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The Supreme Court discussed this issue of bigamy and subsequent declaration of nullity of marriage in the case of Tenebro vs. CA, G.R. No. 150758, February 18, 2004. Excerpts of this decision are posted below (emphasis by boldfacing supplied):

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individual’s criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15. When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter, Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial declaration of the nullity of the second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed.

This argument is not impressed with merit.

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The State’s penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individual’s deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer) and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses). Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38 may contract marriage.

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accused’s guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities.Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the State’s basic social institution, the State’s criminal laws on bigamy step in.

Can you legally force your spouse to live with and to love you?

Summary: “The obligation to, live together, observe mutual, respect and fidelity 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 Family Code mentions the word “love” only twice. 

The first mention of the word is found in Title III which covers Articles 68 up to 73 on the rights and obligations of spouses. The second mention of the word “love” is in Article 220, which states the rights and duties of parents towards their unemancipated children. Paragraph (2) of the article states that among the duties of parents towards their children is “to give them love and affection, advice and counsel, companionship and understanding.”

Article 68 states, “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Since living together and observing mutual love, respect and fidelity are obligations under the law, the question is, can a wife or husband legally compel his or her spouse to come home and comply with such obligations?

The Supreme Court in the case of Ilusorio vs. Ilusorio-Bildner (G.R. No. 139789 July 19, 2001 and G.R. No. 139808 July 19, 2001) stated among other things that “consortium” or “coverture” (the obligation to, live together, observe mutual, respect and fidelity) 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 Ilusorio decision written by Justice Pardo revolved around this 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 Supreme Court as a final note in the Ilusorio decision stated:

“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.”

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.