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.

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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?

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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.

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.