Family Code (Chapter 1: Requisites of Marriage)

Marriage is a special contract because:

It can only be entered into by a man and a woman
It does NOT expire
Its nature, consequence and incidents are governed by law and NOT subject to stipulation except
for marriage settlements that may fix property relations

Who may contract marriage?

Any male or female of the age 18 or upwards with no legal impediments.

Two (2) Essential Requisites of marriage are: (LCAVM)

Legal capacity to marry of the contracting parties

Consent freely given by the contracting parties in the presence of a solemnizing officer
Three (3) Formal Requisites of marriage are:
Authority of the solemnizing officer
Valid marriage license
Marriage ceremony with both parties personally present, solemnized by an authorized
solemnizing officer in the presence of at least 2 witnesses of legal age

What is the effect on the marriage of the absence of any of the formal or essential requisites?
It will render the marriage void ab initio.

What is the effect on the marriage of a defect in any of the essential requisites?
It will render the marriage voidable.

What is the effect on the marriage of an irregularity in the formal requisites?

Marriage would still be valid but the party or parties responsible for said irregularity shall be civilly,
criminally and administratively liable.
Who may solemnize a marriage? (JPSMCM)

A judge (incumbent not retired) within the jurisdiction of his court.

Priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church and
registered with the civil registrar general provided that at least one of the contracting party belong to the
solemnizing officers church or religious sect.

A ship captain or airplane chief in cases of articulo mortis and the contracting parties are either
passenger or crew of the ship or plane during its voyage.

A military commander (at least 2nd lieutenant) of a unit (battalion), where a chaplain is assigned,
in the absence of the latter, in cases of articulo mortis where the contracting parties, civilian or military are
within the zone of military operation.

Any consul general, consul, vice-consul in cases where Filipino citizens abroad want to contract
marriage in accordance with the Philippine laws, shall assume the duties of the local civil registrar and
solemnizing officer.

Mayors or Acting Mayors , in default thereof, the Vice Mayor or any highest ranking member of
the Sangguniang Bayan can solemnize marriage in pursuant to the Local Government Code.

Where can marriages be solemnized? OOH,S/PZ

In open court, church, chapel, temple.

In the Office of consul-general, consul or vice-consul for Filipino citizens who wish to be married
abroad under the Philippine laws and shall be solemnized by consul-general, consul or vice-consul.

In a house or place designated by the contracting parties but within the jurisdiction of the
solemnizing officer if they so request the latter in writing.

In cases of marriage in articulo mortis:

a)

In a ship or airplane during its voyage where contracting parties are passengers or crew members. It
shall be solemnized by the ship captain or airplane pilot only.
b) In a Zone of Military Operation whether parties are civilian or members of armed forces. It shall be
solemnized by a military commander of a battalion in the absence of a chaplain.

What are the requirements of a marriage ceremony? (AD)

The contracting parties must appear personally before the solemnizing officer and declare in the
presence of two witnesses of legal age that they take each other as husband and wife. This declaration
shall be contained in the marriage certificate signed by the contracting parties and the witnesses and
attested by the solemnizing officer.

In case of marriage in articulo mortis, when the party who is at the point of death is unable to sign
the marriage contract, it shall be sufficient for one of the witnesses to write the name of said party. This
fact will be attested by the solemnizing officer.

1)
2)

There is no prescribed form or religious rite required for the solemnization of marriage.
Who can issue a marriage license?
The Local Civil Registrar where either of the contracting parties habitually resides.
Consul-general, consul or vice-consul for marriages contracted abroad.
What shall be required of the contracting parties in applying for a marriage license?
The parties shall file a separately sworn application for marriage license with either of the
following requirements: (in order of priority)
Original birth certificate or a copy certified by persons having custody of original
Baptismal certificates or a copy certified by persons having custody of original

3)

Current residence certificate or an instrument drawn up and sworn to before the local civil registrar
concerned or any public official authorized to administer oaths witnessed by two persons of legal age.
The nearest kin of the contracting parties shall be preferred as witnesses or, in their default, persons of
good reputation in the province or the locality.

4)

Parents of the contracting parties appear shall personally before the local civil registrar concerned and
swear to the correctness of the lawful age of said parties.

5)

Local civil registrar can personally look at the applicants and be convinced that either or both of them are
of required age.

If previously married the local civil registrar shall require either:

Death certificate of dead spouse or, in default thereof, an affidavit setting forth this circumstance and the
partys civil status and the name and date of death of deceased spouse, or
Judicial decree of absolute divorce, or
Judicial decree of annulment or declaration of nullity

If any of the contracting party is between ages 18 and above but below 21, not having been
emancipated by a previous marriage:

Consent to their marriage by father, mother, surviving parent or guardian or persons having legal charge
of them in the order mentioned shall be required by the local civil registrar. An absence of this requirement
will render the marriage annullable. Consent can be manifested in writing by the interested party or in the
form of an affidavit.

If any of the contracting party is between ages 21 and above but below 25:
They are obliged to ask their parents or guardian for advice upon the intended marriage.
They are also required to undergo marriage counseling conducted by an authorized solemnizing officer
or a counselor duly accredited by the proper government agency.

If they do not obtain consent, or if it be unfavorable, or if they do not undergo counseling, the marriage
license shall not be issued till after 3 months following the completion of publication of the application of
marriage license. If only one of the party is required to submit the requirements mentioned, the other party
must still be present at the counseling.

Citizens of a foreign country are required to submit a certificate of legal capacity to marry issued
by their respective diplomatic or consular offices.

For a stateless person or refugees from other countries, they shall be required to submit an
affidavit stating the circumstance showing such capacity to contract marriage.

Payment of prescribed fees for non-indigent parties otherwise its free.

What is the validity of the marriage license?
It shall be valid anywhere in the Philippines but only for 120 days from the date of issue.
What is a notice of application for marriage license and why is it important?
It is a notice prepared by the local civil registrar after receiving properly filled up marriage
application, which contain the full names and residences and other relevant information about the
contracting parties applying for a marriage license.
It is necessary to inform the public of the impending marriage so that if anyone knows of any legal
impediment to the said application, it can be reported to the local civil registrar.
How long is the publication?
10 consecutive days.

Where shall the notice of application for marriage license be published?

It shall be posted on a bulletin board outside of the office of the local civil registrar located in a
conspicuous place and accessible to the general public.

What happens to the application if any impediment is known by the local civil registrar or is
brought to his attention?
The local civil registrar shall note down the particulars thereof and his finding thereon but shall
nonetheless issue the license after the completion of the period of publication unless ordered by a
competent court .

What are the duties of the solemnizing officer?

1) Furnish either of the contracting parties the original marriage certificate.
2)

Send duplicate and triplicate copies of the certificate not later than 15 days after the marriage to the local
civil registrar of the place where the marriage was solemnized.

3)

Retain a quadruplicate copy of the marriage certificate and the original marriage license and, in proper
cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other
than those mentioned in this title of the Family Code.

What are the duties of the local civil registrar?

1)

Prepare the documents required by this title.

2)

Administer oaths without charge.

3)

Recording of all applications for marriage licenses in a registry book strictly in the order which the same
are received.

Additional Notes:

All marriages solemnized abroad in accordance with their laws shall also be valid in the
Philippines except those marriages which are void ab initio as provided in this Code.

1)
2)

Divorce is recognized by the family code but only in marriages between a Filipino citizen and a
foreigner where the alien spouse obtained a divorce abroad. In such cases, the Filipino spouse shall
likewise have the capacity to remarry under the Philippine law.
For purposes of remarriage:
A foreigner must file a petition for change of status if he was previously married in the Philippines.
For a Filipino citizen, judicial declaration of nullity is required.

Marriages Exempted from Marriage License Requirements

Normally, for their marriage to be considered valid, the contracting parties must procure a valid
marriage license from the local civil registrar of the city or municipality where either contracting
party habitually resides. However, there are instances when a license can be dispensed with, such
as when the one or both of the parties are at the point of death, or reside at a remote area and
have no means of transportation to get to the civil registrar. This goes to show that the law is also
practical and are not bound by strict adherence to rigidity. There are als other exempted
marriages found in the Family Code and which we shall now tackle in detail.
MARRIAGES IN ARTICULO MORTIS:
The first exempted marriage is a marriage in articulo mortis or when one or both of the parties
are at the point of death. Article 27 of the Family Code states that in case either or both of the

contracting parties are at the point of death, the marriage may be solemnized without necessity
of a marriage license and shall remain valid even if the ailing party subsequently survives.
If a marriage in articulo mortis occurs inside a ship or an airplane between passengers or crew
members, the same may be solemnized by a ship captain or by an airplane pilot not only while the
ship is at sea or the plane is in flight, but also during stopovers at ports of call. In this case, what
is considered important is not the place or location, but the wish of the parties to get married
before one or both of them kicks the bucket.
Also, a military commander of a unit, who is a commissioned officer, shall likewise have authority
to solemnize marriages in articulo mortis between persons within the zone of military operation,
whether members of the armed forces or civilians.
NO MEANS OF TRANSPORTATION:
A marriage may also be solemnized without necessity of a marriage license if the residence of
either party is so located that there is no means of transportation to enable such party to appear
personally before the local civil registrar. This is a recognition that not all men are created equal
in terms of material wealth and also considers the fact that some of our countrymen do not even
have the means of getting to their local civil registrar.
DUTY OF SOLEMNIZING OFFICER:
Article 29 of the Family Code states that in the cases falling under Articles 27 and 28 of the Family
Code, the solemnizing officer shall state in an affidavit executed before the local civil registrar or
any other person legally authorized to administer oaths that the marriage was performed in
articulo mortis or that the residence of either party, specifying the barrio or barangay, is so
located that there is no means of transportation to enable such party to appear personally before
the local civil registrar and that the officer took the necessary steps to ascertain the ages and
relationship of the contracting parties and the absence of legal impediment to the marriage.
The original of the affidavit together with the legible copy of the marriage contract, shall be sent
by the person solemnizing the marriage to the local civil registrar of the municipality where it was
performed within the period of thirty days after the performance of the marriage.
MARRIAGES AMONG MUSLIMS AND MEMBERS OF ETHNIC COMMUNITIES:
The Family Code also recognizes the customs and traditions of our Muslim brothers and other
ethnic communities when it declares that marriages among Muslims or among members of the
ethnic cultural communities may be performed validly without the necessity of marriage license,
provided they are solemnized in accordance with their customs, rites or practices.

FIVE YEARS AND NO LEGAL IMPEDIMENTS:

In keeping up with the dictates of time and to discourage live-in partnerships and illicit
cohabitations, a man and a woman who have lived together as husband and wife for at least five
years and without any legal impediment to marry each other may be married without a marriage
license.
As a requisite, the contracting parties shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. In addition, the solemnizing officer shall also state
under oath that he ascertained the qualifications of the contracting parties are found no legal
impediment to the marriage.

Void and Voidable Marriages

Article 80. The following marriages shall be void from the beginning:
(1) Those contracted under the ages of sixteen and fourteen years by the male
and female respectively, even with the consent of the parents;
(2) Those solemnized by any person not legally authorized to perform
marriages;
(3) Those solemnized without a marriage license, save marriages of exceptional
character;
(4) Bigamous or polygamous marriages not falling under article 83, number 2;
(5) Incestuous marriages mentioned in article 81;
(6) Those where one or both contracting parties have been found guilty of the
killing of the spouse of either of them;
(7) Those between stepbrothers and stepsisters and other marriages specified
in article 82. (n)
Article 81. Marriages between the following are incestuous and void from their
performance, whether the relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any degree;
(2) Between brothers and sisters, whether of the full or half blood;

(3) Between collateral relatives by blood within the fourth civil degree. (28a)
Article 82. The following marriages shall also be void from the beginning:
(1) Between stepfathers and stepdaughters, and stepmothers and stepsons;
(2) Between the adopting father or mother and the adopted, between the
latter and the surviving spouse of the former, and between the former and the
surviving spouse of the latter;
(3) Between the legitimate children of the adopter and the adopted. (28a)
Article 83. Any marriage subsequently contracted by any person during the lifetime
of the first spouse of such person with any person other than such first spouse shall be
illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of
the second marriage without the spouse present having news of the absentee
being alive, or if the absentee, though he has been absent for less than seven
years, is generally considered as dead and believed to be so by the spouse
present at the time of contracting such subsequent marriage, or if the
absentee is presumed dead according to articles 390 and 391. The marriage so
contracted shall be valid in any of the three cases until declared null and void
by a competent court. (29a)
Article 84. No marriage license shall be issued to a widow till after three hundred
days following the death of her husband, unless in the meantime she has given birth
to a child. (n)
Article 85. A marriage may be annulled for any of the following causes, existing at
the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled
was between the ages of sixteen and twenty years, if male, or between the
ages of fourteen and eighteen years, if female, and the marriage was
solemnized without the consent of the parent, guardian or person having
authority over the party, unless after attaining the ages of twenty or eighteen
years, as the case may be, such party freely cohabited with the other and both
lived together as husband and wife;

(2) In a subsequent marriage under article 83, number 2, that the former
husband or wife believed to be dead was in fact living and the marriage with
such former husband or wife was then in force;
(3) That either party was of unsound mind, unless such party, after coming to
reason, freely cohabited with the other as husband or wife;
(4) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as her husband or his wife, as the case may be;
(5) That the consent of either party was obtained by force or intimidation,
unless the violence or threat having disappeared, such party afterwards freely
cohabited with the other as her husband or his wife, as the case may be;
(6) That either party was, at the time of marriage, physically (pls check baka
psychological )incapable of entering into the married state, and such incapacity
continues, and appears to be incurable. (30a)
Article 86. Any of the following circumstances shall constitute fraud referred to in
number 4 of the preceding article:
(1) Misrepresentation as to the identity of one of the contracting parties;
(2) Non-disclosure of the previous conviction of the other party of a crime
involving moral turpitude, and the penalty imposed was imprisonment for two
years or more;
(3) Concealment by the wife of the fact that at the time of the marriage, she
was pregnant by a man other than her husband.
No other misrepresentation or deceit as to character, rank, fortune or chastity shall
constitute such fraud as will give grounds for action for the annulment of marriage.
(n)
Article 87. The action for annulment of marriage must be commenced by the parties
and within the periods as follows:
(1) For causes mentioned in number 1 of article 85, by the party whose parent
or guardian did not give his or her consent, within four years after attaining the
age of twenty or eighteen years, as the case may be; or by the parent or
guardian or person having legal charge, at any time before such party has
arrived at the age of twenty or eighteen years;

(2) For causes mentioned in number 2 of article 85, by the spouse who has been
absent, during his or her lifetime; or by either spouse of the subsequent
marriage during the lifetime of the other;
(3) For causes mentioned in number 3 of article 85, by the sane spouse, who
had no knowledge of the other's insanity; or by any relative or guardian of the
party of unsound mind, at any time before the death of either party;
(4) For causes mentioned in number 4, by the injured party, within four years
after the discovery of the fraud;
(5) For causes mentioned in number 5, by the injured party, within four years
from the time the force or intimidation ceased;
(6) For causes mentioned in number 6, by the injured party, within eight years
after the marriage. (31a)
Article 88. No judgment annulling a marriage shall be promulgated upon a stipulation
of facts or by confession of judgment.
In case of nonappearance of the defendant, the provisions of article 101, paragraph 2,
shall be observed. (n)
Article 89. Children conceived or born of marriages which are void from the beginning
shall have the same status, rights and obligations as acknowledged natural children,
and are called natural children by legal fiction.
Children conceived of voidable marriages before the decree of annulment shall be
considered as legitimate; and children conceived thereafter shall have the same
status, rights and obligations as acknowledged natural children, and are also called
natural children by legal fiction. (n)
Article 90. When a marriage is annulled, the court shall award the custody of the
children as it may deem best, and make provision for their education and support.
Attorney's fees and expenses incurred in the litigation shall be charged to the
conjugal partnership property, unless the action fails. (33a)
Article 91. Damages may be awarded in the following cases when the marriage is
judicially annulled or declared void from the beginning:
(1) If there has been fraud, force or intimidation in obtaining the consent of
one of the contracting parties;
(2) If either party was, at the time of the marriage, physically incapable of
entering into the married state, and the other party was unaware thereof;

(3) If the person solemnizing the marriage was not legally authorized to
perform marriages, and that fact was known to one of the contracting parties,
but he or she concealed it from the other;
(4) If a bigamous or polygamous marriage was celebrated, and the impediment
was concealed from the plaintiff by the party disqualified;
(5) If in an incestuous marriage, or a marriage between a stepbrother and a
stepsister or other marriage prohibited by article 82, the relationship was
known to only one of the contracting parties but was not disclosed to the
other;
(6) If one party was insane and the other was aware thereof at the time of the
marriage. (n)
A void marriage is one which is NOT valid from its inception. A marriage
that is void ab initio is considered as having never to have taken place and
cannot be the source of rights (Nial vs. Bayadog [2000]) . The following
marriages are void from the beginning:

1. Those contracted by any party below 18 years of age EVEN with the
consent of parents or guardians;
2. Those solemnized by any person NOT legally authorized to perform
marriages UNLESS such marriages were contracted with either or
both parties believing in good faith that the Solemnizing Officer had
the legal authority to do so;
3. Those
solemnized
WITHOUT
a Marriage
License,
EXCEPT marriages exempt from license requirement;
4. Those bigamous or polygamous marriages, NOT allowed under
special laws such as the Muslim Code or NOT contracted by a person
whose spouse has been absent for 4 consecutive years, said person
having a well-founded belief that the absent spouse was already dead
and the latter is declared presumptively dead in a summary
proceeding
5. Those contracted through mistake of one contracting party as to the
identity of the other;

6. Those subsequent marriages that are void under Article 53 of the

Family Code of the Philippines when either of the former spouses
marries again WITHOUT complying with the requirements of Article
52, supra, requiring the judgment of annulment or judgment of
absolute nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the childrens
presumptive legitimes be recorded in the appropriate civil registry
and registries of property;
7. Those contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential
marital obligations of marriage EVEN IF such incapacity becomes
manifest only after its solemnization;

8. Those between ascendants and descendants of any degree;

9. Those between brothers and sisters, whether of the full or half blood;
10.
Those between collateral blood relatives, whether legitimate or
illegitimate, up to the 4th civil degree (i.e. between first cousins);

11. Those between step-parents and step-children;

12.Those between parents-in-law and children-in-law;

13.Those between the adopting parent and the adopted child;

14.Those between the surviving spouse of the adopting parent and the
adopted child;
15.Those between the surviving spouse of the adopted child and the
adopter;
16.Those between an adopted child and a legitimate child of the adopter;

17. Those between adopted children of the same adopter; and

18.Those between parties where one, with the intention to marry the
other, killed the other persons spouse or his or her own spouse
(Articles 35, 36, 37, and 38, Family Code of the Philippines)

A marriage declared by the court as null and void connotes that the marriage entered into by
the parties is inexistent as if no marriage ever took place between them. Parties who enter
into a marriage are presumed to have done so legally which renders their marriage binding
and valid and may not be presumed by the parties to be otherwise simply because of their
personal belief that a ground for its invalidity exists.
Such ground must first and foremost be determined and ruled upon by a competent court exercising
jurisdiction in order to legally sever the marital ties between the parties.
When a marriage is believed to be null and void from the beginning depending on the grounds used,
the action filed in Court is a Petition for the Declaration of Absolute Nullity of Marriage and not
Annulment as the two actions are entirely different with each other not only on the grounds but also
with the legal effects thereto.
The grounds for this petition are enumerated in the Family Code of the Philippines like the lack of the
essential and formal requisites of Marriage such as no legal capacity to enter into marriage, those
marriages which are considered as against public policy such as incestuous and bigamous
marriages, those which did not conform to the requirement set forth by the Family Code and those
marriages where one or both parties is psychologically incapacitated to perform the marital
obligations thereto.
A marriage declared by the court as null and void connotes that the marriage entered into by the
parties is inexistent as if no marriage ever took place between them.
A voidable marriage on the hand is filed through a petition of Annulment before the court of
competent jurisdiction and is a marriage which enjoys the presumption of validity until a declared as
annulled. Articles 45 and 46 of the Family Code enumerate the grounds thereof. Annulment
connotes that a contract is valid and existing but was only cancelled or annulled. Therefore, the
grounds for void marriages cannot be used in voidable marriages as the latter presupposes that
there was no existing marriage hence there is nothing to be annulled.
Furthermore, a voidable marriage can only be filed within the prescriptive period set forth by the
Family Code. If for example the grounds used for the Petition for the Annulment of Marriage is
Fraud, Vitiated Consent, Incapability to Consummate or Sexually Transmitted Diseases, the
prescriptive period thereof is five (5) years from the discovery of Fraud, Five (5) years from the time
the intimidation, undue influence or force has disappeared, or within 5 years after the marriage
ceremony in cases of Incapability to consummate or when the ground is based on Sexually
Transmitted Diseases.

The grounds for void marriages on the other hand do not prescribe. Hence, regardless of the ground
used, the party seeking the nullity of the marriage may do so even beyond five (5) years.
AUTHOR: Atty. Lifrendo M. Gonzales
Copyright LMG Law Office
More information about LMG Law Office

Annulment and Legal Separation

(Annulment)
1.
I want to leave my estranged wife and marry someone else. Can I divorce her?
In thePhilippines, there is no divorce. So, you cannot divorce your wife. But there are other options for
dissolving a marriage in thePhilippines.

2.
Is divorce between Filipinos abroad valid here in the Philippines?
No, as divorce is not allowed here in the Philippines, what cannot be done directly here cannot be done
indirectly abroad. This is due to the fact that laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad. (Article 15 of the New Civil Code of the Philippines)
However, the Decree of Judgment of Divorce between Filipinos and their foreign spouses, which had
been initiated by the foreign spouse in his country, may be recognized in the Philippines. This is
because where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry under Philippine law. (Article 26 of the
Family Code)
In Republic v. Orbecido, this Court recognized the legislative intent of the second paragraph of
Article 26 which is "to avoid the absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse" under the laws
of his or her country. The second paragraph of Article 26 of the Family Code only authorizes Philippine
courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow
divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a case
for divorce. (Fujiki v. Marinay G.R. No. 196049, June 26 2013)
3.
If I cant divorce my spouse, how can I dissolve my marriage?
Under Philippine law, parties who wish to have their marriage annulled have two options in dissolving
their marriage:
1.
2.

Petition for annulment of marriage;

Petition for nullity of marriage.

Annulment of marriage is in the nature of a court proceeding with the end view of severing the
marital bond between husband and wife. It is applicable only to voidable marriages, and is availed of
in a situation where the marriage is valid from the beginning but can be annulled on various grounds
by the court, specifically provided for under Article 45 of the Family Code. A petition for annulment of
marriage is applicable to marriages that are voidable. Under Philippine law, a voidable marriage is one

that is valid until otherwise declared by the court. (Nial vs. Bayadog, G.R. No. 133778, 14
March 2000)
A petition for nullity of marriage presupposes that the marriage was void from the beginning on
account of the inability of the parties to satisfy the formal and essential requisites of marriage(Article
2 and 3 Family Code of the Philippines) as well as their failure to comply the essential marital
obligations of marriage, namely: to live together, observe mutual love, respect and fidelity, and
render mutual help and support. (Article 68 Family Code of the Philippines).
4.
What are these essential and formal requisites of marriage?
The essential requisites of marriage are:
1. Legal capacity of the contracting parties who must be a male and a female; and
2. Consent freely given in the presence of the solemnizing officer. (Article 2 Family Code of the
Philippines)
The formal requisites of marriage are:
1. Authority of the solemnizing officer;
2. A valid marriage license; and
3. A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age. (Article 3 Family Code of the Philippines)
5.
What are the grounds for annulment of marriage?
a)
That the party in whose behalf it is sought to have the marriage annulled was eighteen years of
age or over but below twenty-one, and the marriage was solemnized without the consent of the
parents, guardians or person having substitute authority over the party, in that order, unless attaining
the age of twenty-one, such party freely cohabited with the other and both lived together as husband
and wife;
b)
That either party is of unsound mind, unless such party after coming to reason, freely cohabited
with the other as husband and wife;
c)
That the consent of either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts, constituting fraud, freely cohabited with the other as husband and wife;
d)
That the consent of either party was obtained by force, intimidation or undue influence, unless
the same having disappeared or ceased, such party thereafter freely cohabited with the other as
husband and wife;
e)
That either party was physically incapable of consuming the marriage with the other, and such
incapacity continues and appears to be incurable; or
f)
That either party was afflicted with a sexually transmissible disease found to be serious and
incurable. (Article 45 of the Family Code)
6.
If under the law, I am already considered an adult at 18 years of age, why do I still
need to get my parents permission to get married?
In ordinary circumstances, an eighteen year old is already considered an adult under Philippine laws.
But when it concerns marital relations and conjugal responsibilities, the law considers that a person of
at least 18 years and below 21 years, as lacking the degree of maturity required fully grasping and

comprehending the reality and gravity, responsibilities and consequences that a marital relationship
would entail.
7.
Would it mean that any of the parties of at least 18 years but below 21 years of age
can file an annulment of marriage?
No, it is only the parties whose parents consent were not granted to the marriage who can file a
petition for annulment.

8.
My husband is diagnosed in having an unsound mind and in now incarcerated in a
mental hospital. Would this be a ground to file for petition for annulment of my marriage to
him?
The unsoundness of mind should have been present at the time of celebration of the marriage which
renders the afflicted party incapable of comprehension as to what he is getting into and making him
unable to give consent.

However, if the afflicted party was of sound mind during the celebration of the marriage, the marriage
between the parties is still valid despite the affliction of the unsoundness of the mind of the afflicted
party after the wedding. The petition for annulment on this ground would not succeed.

9.
I was young and easily influenced when I got married. Thus, it was easy to intimidate
and force me into marrying my husband by his relatives. May I use the ground of force,
intimidation and undue influence in filing a petition for annulment against my husband?
Force, intimidation and undue influence as contemplated under the Family Code and defined by the
Civil Code of thePhilippines, must be established clearly and distinctively.

Force refers to physical violence. There is violence when in order to wrest consent, serious or
irresistible force is employed (Article 1335 of the New Civil Code of the Philippines)
There is intimidation when one of the contracting parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his consent. (Article 1336 of the New
Civil Code of the Philippines)
There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. (Article 1337 of the New Civil Code
of the Philippines)
Therefore, in your case, if the force and intimidation employed was serious enough or irresistible that
a person had no other choice but to willingly give his/her consent, then a petition for annulment may
succeed.

10. What are the different examples of fraud in terms of a ground for annulment?
Under Article 46 of the Family Code, the examples of fraud as ground for annulment are:
a)
Non-disclosure of a previous conviction by final judgment of a crime involving moral turpitude;

b)
Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a
man other than her husband;
c)
Concealment of sexually transmissible disease, regardless of its nature, existing at the time of
the marriage; or
d)
Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the
time of the marriage.

11. What does moral turpitude mean?

Moral turpitude means the inherent baseness, vileness or depravity in the private and social duties
which a man owes to his fellow men or to society in general. It basically means any crime that gravely
offends human decency, such as but not limited to, killing, is an act involving moral turpitude.

12. My sister confided in me that her husband was incapable to consummating their
marriage. What does that mean?
Incapacity to consummate a marriage means that a party of the marriage is unable to physically
perform and complete the act of sexual intercourse. The sexual intercourse which is performed by the
newly wed parties after the marriage ceremony signifies as the ceremonial act that the marriage had
been consummated and it establishes that the marriage is valid and binding between them.
Incapacity to consummate denotes the permanent inability on the part of the spouses to perform the
complete act of sexual intercourse. (Melencio S. Sta. Maria, Jr., Persons and Family Relations
Law (2004 Edition,) p. 278.)
13. Would the incapacity to consummate a marriage mean the physical incapacity or the
psychological incapacity?
Under Article 45 of the Family Code, incapacity to consummate marriage refers to both the
psychological and physical incapacity. The physical incapacity to consummate the marriage must be
the result of the psychological incapacity. It means that the afflicted party must have a psychological
illness which renders him incapable of performing a sexual act.

Non-consummation of a marriage may be on the part of the husband or of the wife and may be
caused by a physical or structural defect in the anatomy of one of the parties or it may be due to
chronic illness and inhibitions or fears arising in whole or in part from psychophysical conditions. It
may be caused by psychogenic causes, where such mental block or disturbance has the result of
making the spouse physically incapable of performing the marriage act. (Melencio S. Sta. Maria, Jr.,
Persons and Family Relations Law (2004 Edition,) p.279)
14. I have been married to my wife for over 15 years and she still hasnt given me a child.
Can I use the ground of sterility in filing a petition for annulment of our marriage?
No. Sterility is not the same as impotency. Sterility does not bar a person from successfully engaging
in sexual acts. However, impotency would render a person incapable of performing a sexual act which
makes impotency a ground for annulment but not sterility.

15. I was married 2 months ago and I just found out that my husband has a sexually
transmitted disease and had passed it on to me. Is there a requirement that the STD be
incurable to be able to successfully file a petition for annulment against him?

No. Your husbands omission of the fact that he has an STD at the moment of your marriage
constitutes as an act of fraud. Thus, fraud is a ground for annulment of a marriage and the STD is not
required to be incurable.

16. I had been married for 13 years. Just recently, I had found out that I had an STD which
caused my infertility. Can a file a petition for annulment against my husband on this
ground?
Yes, STD may still be a ground for annulment provided that the STD is found to be serious and
incurable. Your infertility resulting from the STD transmitted by your husband is of a serious and
incurable nature that it can be used as ground for annulment of your marriage.

17. My husband and I got married 2 years ago in front of a priest. We discovered that we
didnt have any marriage license. What is the status of our marriage?
A valid marriage license is one of the formal requisites of marriage. Absence of such would render the
marriage as void initio.

In Cario v. Cario, the Court considered the marriage of therein petitioner Susan Nicdao and the
deceased Santiago S. Carino as void ab initio. The records reveal that the marriage contract of
petitioner and the deceased bears no marriage license number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office has no record of such marriage license. The court held
that the certification issued by the local civil registrar is adequate to prove the non-issuance of the
marriage license. Their marriage having been solemnized without the necessary marriage license and
not being one of the marriages exempt from the marriage license requirement, the marriage of the
petitioner and the deceased is undoubtedly void ab initio.(G.R. No. 132529)
18. After 15 years of marriage, Im no longer in love with my husband. We dont have any
problems but the love and affection required of me as a wife is no longer present. Can I file
a petition for nullity on such ground?
No, lack of affection or love is not a ground to file a petition for nullity against your husband. The
Supreme Court held in the case of Renato Reyes So vs. Valera, To be tired and give up on ones
situation and on ones spouse are not necessarily signs of psychological illness; neither can falling out
of love be so labeled. When these happen, the remedy for some is to cut the marital knot to allow the
parties to go their separate ways. This simple remedy, however, is not available to us under our laws.
Ours is a limited remedy that addresses only a very specific situation a relationship where no
marriage could have validly been concluded because the parties; or where one of them, by reason of a
grave and incurable psychological illness existing when the marriage was celebrated, did not
appreciate the obligations of marital life and, thus, could not have validly entered into a
marriage. (G.R. No. 150677, 05 June 2009)
19. What is psychological incapacity?
Psychological incapacity refer to no less than a mental (not physical) incapacity that causes a party
to be truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and fidelity and render help and
support. (Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))
Simply put, psychological incapacity is the failure of the party to a marriage to assume and comply
with the essential obligations of marriage.
20. What are the characteristics of psychological incapacity?

Psychological incapacity must be characterized by:

1.

Gravity It must be grave or serious such that the party would be incapable of carrying out
the ordinary duties required in a marriage;
2.
Juridical Antecedence It must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and
3.
Incurability It must be incurable or, even if I were otherwise, the cure would be beyond the
means of the party involved.(Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))
21. My husband and I have constant marital disagreements such that our marital relation
is extremely strained, can I file for annulment on the ground of psychological incapacity?
No, personal differences do not reflect a personality disorder tantamount to psychological incapacity.
(Marable vs. Marable, G.R. No. 178741, 17 January 2011)
Mere showing of "irreconciliable differences" and "conflicting personalities" in no wise constitutes
psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities
and duties as married persons; it is essential that they must be shown to be incapable of doing so,
due to some psychological (nor physical) illness. (Republic of the Philippines vs. CA, G.R. No.
108763, 13 February 1997)
22. Who can file the action to declare the marriage void?
Either party, even the psychologically incapacitated, can file the action. (Edward Kenneth Ngo Te
vs. Rowena Ong Gutierrez Yu-Te, G.R. No. 161793, 13 February 2009)
Furthermore, in cases of bigamous marriages involving foreign spouses, the first spouse who is a
Filipino can have the decree of divorce of the second marriage of his spouse to a foreigner be
recognized in the Philippines.

When the right of the spouse to protect his marriage is violated, the spouse is clearly an injured
party and is therefore interested in the judgment of the suit. Juliano-Llave ruled that the prior
spouse "is clearly the aggrieved party as the bigamous marriage not only threatens the financial and
the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to
the prior spouse." Being a real party in interest, the prior spouse is entitled to sue in order to declare
a bigamous marriage void. For this purpose, he can petition a court to recognize a foreign judgment
nullifying the bigamous marriage and judicially declare as a fact that such judgment is effective in the
Philippines. Once established, there should be no more impediment to cancel the entry of the
bigamous marriage in the civil registry. (Fujiki v. Marinay G.R. No. 196049, June 26 2013)
23. Does the action to declare the marriage void on account of the psychological incapacity
of a party to a marriage prescribe?
No, the action or defense for the declaration of absolute nullity of a marriage does not prescribe.
(Article 39 of the Family Code of the Philippines)
24. Is there a need for my husband to be personally examined by a psychiatrist for the
declaration of nullity of marriage on the basis of psychological incapacity?
No, there is no requirement that the defendant/respondent spouse should be personally examined by
a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based
on psychological incapacity. (Marcos vs. Marcos, G.R. No. 136490. 19 October 2000)
25. My husband is physically unable to comply with his marital obligations; can I have my
marriage annulled on the basis of his psychological incapacity?
No, mere inability to physically comply with his marital obligations does not necessarily mean that
your husband is psychologically incapacitated.

The psychologically incapacity refers to the mental incapacity that prevents the party from complying
with his basic marital covenants. (Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))
It bears stressing that psychological incapacity must be more than just a "difficulty," "refusal" or
"neglect" in the performance of some marital obligations. Rather, it is essential that the concerned
party was incapable of doing so, due to some psychological illness existing at the time of the
celebration of the marriage. (Marable vs. Marable, G.R. No. 178741, 17 January 2011)
It is indispensable that the evidence must show a link, medical or the like, between the acts that
manifest psychological incapacity and the psychological disorder itself. (Marable vs. Marable, G.R.
No. 178741, 17 January 2011)
26. I recently discovered that my husband had been having an affair for two years. Will
knowledge of his infidelity be sufficient to prove that he has psychological incapacity and
file a petition for nullity against him?
No, infidelity is not enough per se to illustrate or establish that the guilty party is psychologically
incapacitated.
It has been held in various cases that sexual infidelity, by itself, is not sufficient proof that petitioner
is suffering from psychological incapacity. It must be shown that the acts of unfaithfulness are
manifestations of a disordered personality which make petitioner completely unable to discharge the
essential obligations of marriage. (Villalon vs. Villalon, G.R. No. 167206, 18 November 2005)
Furthermore, in the case of Toring vs. Toring, To constitute psychological incapacity, it must be
shown that the unfaithfulness and abandonment are manifestations of a disordered personality that
completely prevented the erring spouse from discharging the essential marital obligations. (G.R. No.
165321, 03 August 2010)
27. What is a Psychological Report?
The psychological report embodies the findings of a clinical psychologist regarding the psychological
state of an individual. It is the product of a two-part test: the psychological testing and the clinical
interview which the petitioner should undergo.

Legally, it is an indispensable piece of evidence for the declaration of nullity of marriage on the ground
of Psychological Incapacity under Article 36 of the Family Code of thePhilippines. Absent any
Psychological Incapacity on the part of the Petitioner or Respondent would result in the dismissal of
the petition.
28. Is the Psychological Report and testimony of the Psychologist sufficient to establish the
existence of Psychological Incapacity?
No, psychological incapacity must be established by the totality of the evidence presented during the
trial. (Marcos vs. Marcos, G.R. No. 136490. 19 October 2000) Hence other evidence must be
presented during the trial to establish the psychological incapacity.
29. My husband/wife agreed to have an annulment; can we file the case for nullity of
marriage?
No, in cases of annulment and declaration of absolute nullity of marriage, collusion between parties is
prohibited. (Article 48 of the Family Code of the Philippines)

This prohibition is due to the fact that 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 breakup of families weakens our social
and moral fabric and, hence, their preservation is not the concern alone of the family
members.(Tuason vs. Tuason, G.R. No. 116607, 10 April 1996)
30. I discovered after the marriage that my husband/wifes character is vastly different
from when we were dating. Can I file for annulment?
No, misrepresentation or deceit as to character, health, rank, fortune or chastity is not considered as
fraud and it cannot be used as a ground for action for the annulment of marriage. (Article 46 of the
Family Code of the Philippines)
31. I discovered that at the time I married my wife, she was already pregnant with the
child of another person. Can I file for annulment?
Yes, non-disclosure of the wife that she is pregnant with the child of another man is considered as
fraud under Article 45 of the Family code of the Philippines. (Article 46, paragraph 2, of the
Family Code of the Philippines)
32. What are the grounds for the declaration of nullity of marriage?
The grounds are enumerated under Article 35 and 36 of the Family Code of the Philippines, to
wit:
1.
Either or both parties are below eighteen years of age;
2.
Marriage was solemnized by a person not legally authorized to perform marriages;
3.
There is no marriage license;
4.
Marriage is bigamous or polygamous;
5.
There was a mistake of one contracting party as to the identity of the other;
6.
The subsequent marriage is void; and
7.
Psychological incapacity.
33. What are the effects of the declaration of nullity/annulment of a marriage?
The dissolution of the marriage through annulment or nullity of marriage shall have the following
results:
1.
2.
3.
4.

Either spouse can remarry;

Children born during the existence of the marriage are still deemed legitimate;
Custody of the common children shall be awarded to either or both parents, and;
The property regime shall be dissolved and liquidated. (Article 50 of the Family Code of
the Philippines)

(Legal Separation)
34. Can I remarry after my Legal Separation is granted?
No, legal separation is merely the separation of spouses from bed and board. (Article 63 of the
Family Code) While it permits the partial suspension of marital relations, the marriage bond still
exists as the marital bonds are not severed as in the case of annulment or petition for nullity.
35. What are the grounds for Legal Separation?
The grounds for legal separation are:

1.

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

2.

Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation;
3.
Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance in such corruption or inducement;
4.
Final judgment sentencing the respondent to imprisonment of more than six years, even if
pardoned;
5.
Drug addiction or habitual alcoholism of the respondent;
6.
Lesbianism or homosexuality of the respondent;
7.
Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines
or abroad;
8.
Sexual infidelity or perversion;
9.
Attempt by the respondent against the life of the petitioner; or
10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
(Article 55 of the Family Code of the Philippines)
36. What would happen to the donation I gave my wife/husband before the legal
separation?
The innocent spouse may revoke the donations he/she made in favor of the offending spouse. If such
donations involve property, such revocations should be recorded in the Register of Deeds in the places
where the properties are located. (Article 64 of the Family Code of the Philippines)
Note however that such revocation must be done within five years from the time the decree of legal
separation become final.
37. My husband/wife and I agreed to have a legal separation, will there be any
consequences if the State found out about our agreement?
Yes, the court may deny the petition for legal separation once it has been proved that there was an
agreement between the parties in aiming to get legally separated.

Collusion or connivance between parties is a ground for the denial of the petition for legal
separation. (Article 56 of the Family Code of the Philippines)
38. When should I file for Legal Separation?
The action for legal separation should be filed within five (5) years from the time of the occurrence of
the cause. (Article 57 of the Family Code of the Philippines; A.M. No. 02-11-11-SC, 15 March
2003)
39. What are the effects of Legal Separation?
1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be
severed;
2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute community
or the conjugal partnership;
3. The custody of the minor children shall be awarded to the innocent spouse; and
4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. (Article 63 of the Family Code of the Philippines

Abandonment, Subsequent Relationship and Legal

Separation
I am separated from my wife for 5 years now. Its a separation in fact and not really a legal
separation. Can I file a petition for legal separation and if the petition is granted, can I live
with another woman without marriage? This question was already answered in a previous
Q&A and the usual recourse is to point to that post. Nevertheless, it might be helpful to
centralize and expand the discussion.
This is a two-tier question. The first part requires a discussion on the grounds for legal
separation, while the second part relates to the effects of legal separation.

Abandonment as ground for legal separation

The actual separation of the spouses, also called de facto separation or separation in fact,
does not automatically support a petition for legal separation. The related ground is
abandonment and it does not simply refer to de facto separation.
Abandonment is found in paragraph 10 of Article 55 of the Family Code. Article 55
enumerates the grounds for legal separation. It reads in full:
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even
if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the

Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one
year.
For purposes of this Article, the term child shall include a child by nature or by adoption.
Its readily apparent that its not only about the period of separation. This is only one of the
the requisites. There must be: (a) abandonment; (b) the abandonment must be without
justifiable cause; and (c) the duration must be more than a year.

Effect of legal separation

Legal separation, unlike annulment, does not dissolve the marital bond. A decree of legal
separation allows the spouses to live separately, among other consequences, but the
vinculum or marital bond legally remains. In other other words, the spouses cannot remarry
and technically could be charged with bigamy (if they indeed get married again) or adultery
or concubinage (even if they dont get married but get into another relationship). See
also Length of Time when Husband and Wife are Separated Does not Automatically Nullify
Marriage.

Family Law: Rights and

Obligations between
Husband and Wife
Juan Knows / August 4, 2014

Before saying I do, know and put into heart first the following rights and
obligations between husband and wife as provided under Articles 68 to 71 of
the Family Code of the Philippines:
RIGHTS
1. When one of the spouses neglects his or her duties to the conjugal
union or commits acts which tend to bring danger, dishonor, or
injury to the other or to the family, the aggrieved party may apply to
the court for relief;
2. Either spouse may exercise any legitimate profession, occupation,
business, or activity without the consent of the other. The latter may
object only on valid, serious, and moral grounds;

3. The management of the household shall be the right and duty of both
spouses;
OBLIGATIONS

1. The husband and wife are obliged to live together (and procreate);
2. The husband and wife are obliged to observe mutual love, respect,
and fidelity; LRF
3. The husband and wife are obliged to render mutual help and support;
HS
4. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide. The court MAY EXEMPT one

spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is NOT
compatible with the solidarity of the family;
5. The spouses are jointly responsible for the support of the family;

6. The management of the household shall be the right and duty of both
spouses;
Mere breach of marital obligation does not give rise to an action for
damages. Nevertheless, other remedies can be availed of if a spouse IN
BAD FAITH refuses to comply with the above obligations. In one case, if the
property regime between the spouses is Regime of Separation of
Property, he or she may be held liable under Articles 19, 20, or 21 of the
Civil Code of the Philippines (Sta. Maria, 2004). Under these Articles, an act
or omission which causes injury to another may be made the basis for an
award of damages.
Relevantly, the above rights and obligations between husband and wife
together with their rights and duties with respect to their unemancipated
children under Articles 220, 221 and 225 of the Family Code of the
Philippines are relevant in determining whether or not either of the
spouses ispsychologically incapacitated to comply with the essential
marital obligations of marriage. Under Article 36 of the Family Code, a
marriage contracted by any party who, at the time of the celebration
thereof, was psychologically incapacitated to comply with the essential
marital obligations of marriage shall be VOID, even if such incapacity
becomes manifest only after its solemnization
The Family Code mentions the word love only twice and the first mention of the word is
found in Title III which coversArticles 68 up to 73. The second mention of the word love is
inArticle 220 which states the rights and duties of parents towards their unemancipated
children. Paragraph (2) of the said article states that among the duties of parents towards
their children is to give them love and affection, advice and counsel, companionship and
understanding.
Anyway, lets proceed from this romantic, mushy (this is redundant, right?) stuff about love and get
on with the nitty-gritty details of the rights and obligations between husbands and wives. As Insight
for Living Bible teacher Chuck Swindoll once said, The basis of a good marriage is not love; it is
commitment. What he's saying is that love is not a matter of the emotions, but of the will, of volition
(this is really redundant, right?) You might want to review my article "Love Potion No. 9" where I
wrote about dopamine, oxytocin and vasopressin. These chemicals produced by the human body
and which some people have termed as the cuddle chemicals are believed responsible for that
mysterious thing called love.

After the Family Code primer immediately below, I will discuss what the Bible says about
rights and duties of husbands and wives, okay?
What are the rights and obligations of spouses under the Family Code?
The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and
render mutual help and support. (Art. 68, Family Code of the Philippines)
What if one spouse refuses to comply with his or her marital obligations as provided under
Art. 68, can the offended spouse legally compel him 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 womans free choice.
Who shall decide on the family domicile?
The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
(Art. 69)
Article 68 states that the spouses are obliged to live together. Are there exceptions?
The court may exempt one spouse from living with the other if the latter should live abroad or there
are other valid and compelling reasons for the exemption. However, such exemption shall not apply
if the same is not compatible with the solidarity of the family. (2nd paragraph, Art.69)
Who is responsible for the support of the family?
The spouses are jointly responsible for the support of the family. The expenses for such support and
other conjugal obligations shall be paid from the community property and, in the absence thereof,
from the income or fruits of their separate properties. In case of insufficiency or absence of said
income or fruits, such obligations shall be satisfied from the separate properties. (Art. 70)

Who shall manage the household?

The management of the household shall be the right and the duty of both spouses. The expenses for
such management shall be paid in accordance with the provisions of Article 70.
What if the husband or the wife neglects his or her duties to the family?
When one of the spouses neglects his or her duties to the conjugal union or commits acts which
tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to
the court for relief. (Art. 72)
Under RA 9262 or the Anti-Violence Against Women and their Children Act of 2004, the wife can
petition the Family Court where she resides for a Protection Order.
Can the wife exercise her profession or engage in business even without the permission of
her husband?
Either spouse may exercise any legitimate profession, occupation, business or activity without the
consent of the other. The latter may object only on valid, serious, and moral grounds. (Art.73)
What if there is disagreement between the spouses?
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior
to the objection, the resulting obligation shall be enforced against the separate property of the
spouse who has not obtained consent.
If the husband refuses unjustifiably to allow his wife to exercise her profession or engage in
business, what are the rights of the wife?
RA 9262, under paragraph (4) of Section 5 lists this situation as a act of violence against a woman.
The said paragraph penalizes the man (husband or live-in partner) if he prevents the woman from
engaging in any legitimate profession, occupation, business or activity or controls the victim's own
money or properties, or solely controls the conjugal or common money, or properties.

Rights and obligations of husbands and wives

from the Biblical standpoint

Rights and Obligations

Between Husband and Wife
Think you're ready to get married? To vow that you will always be there, to have
and to hold, till death do you part? Read on first how the law regards the
husband-and-wife relationship.
The 1987 Family Code states that:
1. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support. (Art. 68)
2. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (Art. 69)
3. The spouses are jointly responsible for the support of the family. The
expenses for such support and other conjugal obligations shall be paid
from the community property and, in the absence thereof, from the
income or fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be satisfied from
the separate properties. (Art. 70)
4. The management of the household shall be the right and the duty of both
spouses. The expenses for such management shall be paid in accordance
with the provisions of Article 70. (Art. 71)
5. When one of the spouses neglects his or her duties to the conjugal union
or commits acts which tend to bring danger, dishonor or injury to the
other or to the family, the aggrieved party may apply to the court for
relief. (Art. 72) (DDI)
6. Either spouse may exercise any legitimate profession, occupation,
business or activity without the consent of the other. The latter may object
only on valid, serious, and moral grounds. (VSM)

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or
thereafter. If the benefit accrued prior to the objection, the resulting
obligation shall be enforced against the separate property of the
spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors
who acted in good faith. (Art. 73)
Property relations between married couples in the country was further defined especially after the
effectively of the Family Code of the Philippines in August of 1988.
Both husband and wife in inter-marriage (Foreigners married to Filipina and vice-versa) and Filipino
citizen couples must be kept informed of the intricacies involved in the ownership of real properties
and the governing laws thereof to avoid any conflict or problems that may occur in the future.
Here are some of the basic rights and legalities concerning property relations between husband and
wife:
What will be my rights as owner of a condominium unit and other real property once I marry my
fianc?
Your rights to the real property which you own and plan to bring into the marital partnership depend
on the property relations which you and your future husband will agree on. The property relations
which you and your future husband will choose will govern all the rights, responsibilities and
obligations to all the property whether real or personal properties that you and your spouse will bring
into the partnership. Under the Family Code of the Philippines which took effect on August 4, 1988,
the couple, before the celebration of marriage, may choose and enter into a marriage settlement that
they want, such as: SACA
1. Separation of Property
2. Absolute Community of Property
3. Conjugal Partnership of Gains
4. Any other regime such as Dowry or others
However, if you and your spouse celebrated marriage without executing any marriage settlement
then the system of Absolute Community of Property shall govern.
What is the system of Absolute Community of Property and how will it affect my rights to the
ownership, administration of, and income that I derive from, the property that I will bring into the
marriage?
The system of Absolute Community of Property requires that all property owned by the spouses at

the time of the celebration of the marriage or acquired thereafter shall be considered as belonging
jointly to the husband and wife, except the following:
1. Property acquired during the marriage by gratuitous title (through donation or inheritance) 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 shall form part of the community property;
2. Property for personal and exclusive use of either spouse. Jewelry shall form part of the community
of property.
3. Property acquired before the marriage by either spouse who has legitimate descendants by a
former marriage (dati ng kinasal)and all the fruits and income, if any, of such property.
Under this system, the ownership, administration and use of the fruits (rental income and dividends)
belong to the spouses jointly.
In addition, sale, transfer and disposal of any of the community property shall be done with the
consent of both spouses.
Here are some basic rules regarding the effect of marriage to property relationship

In case there is a pre-nuptial agreement that separates the properties of spouses, the terms and
conditions within that pre-nuptial agreement shall apply.

Any property donated or inherited or given via gratuitous act to either spouse within their marriage,
the receiving spouse shall exclusively own that said property.

As a general rule, spouses cannot donate, sell, mortgage, lease, or exchange properties to each other.

If the spouses properties are separated by a pre-nuptial agreement, either spouse cannot donate more
than one-fifth (1/5) of his or her property to the other spouse. (not more than 20% )

Local customs and traditions, and/or religious beliefs that govern the effects of marriage to property
relations may apply in special cases. Example: Indigenous Tribal marriage or Muslim marriage.

We often hear this phrase when pertaining to a property owned by a married couple as Thats their
CONJUGAL PROPERTY.
But what is CONJUGAL PROPERTY? IS IT STILL APPLICABLE TODAY?
The law on CONJUGAL PARTNERSHIP OF GAINS of Properties in simple terms shall be like this

Any property acquired before the husband got married shall be exclusively his.

Any property acquired before the wife got married shall be exclusively hers.

When the man and woman get married their exclusive properties shall be joined-together as part of
one estate within the CONJUGAL PROPERTY and the FRUITS of those properties shall be shared
between the husband and wife for the duration of their marriage.

Any property acquired during their marriage shall be considered part of the CONJUGAL PROPERTY
and shall be equally owned by the husband and wife.

Should the the husband and wife file for LEGAL SEPARATION, DIVORCE OR ANNULMENT, the
exclusive property of the husband which he acquired before the marriage and all its fruits, shall be
taken out of the CONJUGAL PROPERTY and will be again solely owned by him; and likewise the
exclusive property of the wife and all its fruits, which she acquired before the marriage shall again be
solely owned by her.

Also, in case of LEGAL SEPARATION, DIVORCE OR ANNULMENT, and the spouses filed for
SEPARATION OF PROPERTIES in court, the properties acquired by both or any of the spouses
during their marriage shall be considered part of their CONJUGAL PROPERTY and shall be split in
half between the husband and the wife.

In this this scenario, should there be no Judicial Separation of Properties, when the married couple get
estranged( separated), either of the spouses can sell, lease, mortgage, exchange or joint-venture their exclusive
properties acquired before their marriage, even without the consent of the other spouse. If the property was
acquired within the marriage, notarized written consent from both spouses is still needed to sell, mortgage,
lease, exchange, donate or joint-venture the Conjugal Property. SMLEDJ

EXECUTIVE ORDER 209, or THE FAMILY CODE OF THE PHILIPINES was enacted as a law by then
President Corazon Aquino in July 6, 1987.

Hence, Filipinos who were married after that date are now covered by this law.
The Family Code of the Philippines states that, in the absence of a Marriage Settlement or what is commonly
known as Pre-nuptial agreement that separates the properties of the spouses married after the enactment of
the Family Code, their properties shall no longer be governed by the law on CONJUGAL PROPERTY but by
the regime of ABSOLUTE COMMUNITY OF PROPERTY.
Absolute Community of Property in simple terms would be like this

All properties acquired by the spouses before their marriage, and all properties acquired during their
marriage shall be considered part of one whole estate of the ABSOLUTE COMMUNITY OF
PROPERTY owned by both spouses.

All properties donated, inherited and/or properties given gratuitously to either of the spouse before
their marriage shall also be considered as part of the ABSOLUTE COMMUNITY OF PROPERTY
once they get married, and shall be owned by both spouses.

IN CASE OF LEGAL SEPARATION, DIVORCE OR ANNULMENT, the regime of ABSOLUTE

COMMUNITY OF PROPERTY shall not be affected and will remain owned by both spouses, unless
the spouses FILED FOR JUDICIAL SEPARATION OF PROPERTIES

In case the spouses filed Judicial Separation of Properties, the properties within the Absolute
Community of Properties shall be split in half between the husband and the wife.

In this scenario all properties acquired before and during the marriage of either and both spouses shall be
considered as part of one whole estate of the Absolute Community of Property. Therefore, notarized written
consent from both spouses shall be needed in order to sell, mortgage, lease, exchange, donate and joint-venture
any real property that belongs to the ABSOLUTE COMMUNITY OF PROPERTY.

Unless there is a Judicial Separation of Property, even if the spouses get estranged, separated, divorced or their
marriage annulled, it will not affect the regime of absolute community of property, hence notarized written
consent from both spouses shall be needed to sell, mortgage, lease, exchange, donate and/or joint-venture the
said property.
FILIPINA WIFE VALID WITHOUT THE CONSENT OF THE FOREIGN HUSBAND ? It is not uncommon
that real property is placed under the name of the Filipina wife who is married to a foreigner inasmuch as a
foreigner cannot own land in the Philippines save only in constitutionally recognized exceptions. In such a
case, may the Filipina wife lease out the property without the consent of the foreign husband? In the Supreme
Court case of Matthews vs. Taylor, G.R. No. 164584, [ June 22, 2009 ], this issue was raised wherein the
Supreme Court resolved the issue of whether the contract of lease entered into by the Filipina wife over real
property is valid despite the absence of consent of the foreign husband. The facts as stated in the decision are
as follows:
On June 30, 1988, respondent Benjamin A. Taylor (Benjamin), a British subject, married Joselyn C. Taylor
(Joselyn), a 17-year old Filipina. On June 9, 1989, while their marriage was subsisting, Joselyn bought from
Diosa M. Martin a 1,294 square-meter lot (Boracay property) situated at Manoc-Manoc, Boracay Island,
Malay, Aklan, for and in consideration of P129,000.00. The sale was allegedly financed by Benjamin. Joselyn
and Benjamin, also using the latters funds, constructed improvements thereon and eventually converted the
property to a vacation and tourist resort known as the Admiral Ben Bow Inn. All required permits and licenses
for the operation of the resort were obtained in the name of Ginna Celestino, Joselyns sister. However,
Benjamin and Joselyn had a falling out, and Joselyn ran away with Kim Philippsen. On June 8, 1992, Joselyn
executed a Special Power of Attorney (SPA) in favor of Benjamin, authorizing the latter to maintain, sell,
lease, and sub-lease and otherwise enter into contract with third parties with respect to their Boracay property.
On July 20, 1992, Joselyn as lessor and petitioner Philip Matthews as lessee, entered into an Agreement of
Lease (Agreement) involving the Boracay property for a period of 25 years, with an annual rental of
P12,000.00. The agreement was signed by the parties and executed before a Notary Public. Petitioner
thereafter took possession of the property and renamed the resort as Music Garden Resort. Claiming that the
Agreement was null and void since it was entered into by Joselyn without his (Benjamins) consent, Benjamin
instituted an action for Declaration of Nullity of Agreement of Lease with Damages against Joselyn and the
petitioner. Benjamin claimed that his funds were used in the acquisition and improvement of the Boracay
property, and coupled with the fact that he was Joselyns husband, any transaction involving said property
required his consent. Was the lease entered into by the Filipina wife without the consent of her foreign
husband valid ? To this, the Supreme Court said, In fine, we are called upon to determine the validity of an
Agreement of Lease of a parcel of land entered into by a Filipino wife without the consent of her British
husband. In addressing the matter before us, we are confronted not only with civil law or conflicts of law
issues, but more importantly, with a constitutional question. It is undisputed that Joselyn acquired the Boracay
property in 1989. Said acquisition was evidenced by a Deed of Sale with Joselyn as the vendee. The property
was also declared for taxation purposes under her name. When Joselyn leased the property to petitioner,
Benjamin sought the nullification of the contract on two grounds: first, that he was the actual owner of the
property since he provided the funds used in purchasing the same; and second, that Joselyn could not enter into
a valid contract involving the subject property without his consent. x x x Citing several decisions on the
matter, the Supreme Court reiterated that, The rule is clear and inflexible: aliens are absolutely not allowed
to acquire public or private lands in the Philippines, save only in constitutionally recognized exceptions. There
is no rule more settled than this constitutional prohibition, as more and more aliens attempt to circumvent the
provision by trying to own lands through another. xxxxxx It therefore ruled, as follows: x x x x x x
In light of the foregoing jurisprudence, we find and so hold that Benjamin has no right to nullify the
Agreement of Lease between Joselyn and petitioner. Benjamin, being an alien, is absolutely prohibited from

acquiring private and public lands in the Philippines. Considering that Joselyn appeared to be the designated
vendee in the Deed of Sale of said property, she acquired sole
I- Fundamentals of Property Ownership - CRESAR 2011 I- 18
ownership thereto. This is true even if we sustain Benjamins claim that he provided the funds for such
acquisition. By entering into such contract knowing that it was illegal, no implied trust was created in his
favor; no reimbursement for his expenses can be allowed; and no declaration can be made that the subject
property was part of the conjugal/community property of the spouses. In any event, he had and has no capacity
or personality to question the subsequent lease of the Boracay property by his wife on the theory that in so
doing, he was merely exercising the prerogative of a husband in respect of conjugal property. To sustain such a
theory would countenance indirect controversion of the constitutional prohibition. If the property were to be
declared conjugal, this would accord the alien husband a substantial interest and right over the land, as he
would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not
permit him to have. In fine, the Agreement of Lease entered into between Joselyn and petitioner cannot be
nullified on the grounds advanced by Benjamin. Thus, we uphold its validity. --------------------------------- 0
------------------------------BASIC PROPERTY RELATIONS UNDER THE FAMILY CODE EFFECTIVITY OF THE FAMILY CODE :
AUGUST 03, 1988 1. BASIS OF PROPERTY RELATIONS UNDER THE FAMILY CODE Art. 74: Family
Code 1. By marriage settlements executed before the marriage 2. By provisions of this Code 3. By the local
custom 2. Property Relations that may be agreed upon by future spouses in a marriage settlement I. Absolute
Community of Property II. Relative Community of Property or Conjugal Partnership of Gains III. Complete
Separation of Property IV. Upon any other regime that may be agreed upon In the absence of marriage
settlements or when the same are void, the property relations shall be governed as provided for below.
3. Property Relations without Marriage Settlement Before the Family Code - CONJUGAL PARTNERSHIP OF
GAINS
Under the FAMILY CODE - ABSOLUTE COMMUNITY OF (Effective August 3, 1988) PROPERTY 4.
ESSENTIAL FEATURES OF THE TYPES OF PROPERTY RELATIONS I. CONJUGAL PARTNERSHIP
OF GAINS
Conjugal Partnership of Gains presupposes that there are properties which are to be considered conjugal and
therefore owned both by the husband and the wife, while there are those properties which still belong
exclusively to each of the spouses over which they exercise exclusive ownership and administration.
CONJUGAL PROPERTIES The following are considered conjugal properties:
(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the
acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
(3) The fruits, natural, industrial or civil, due or received during the marriage from the common property, as
well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the
property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;

(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to
the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses
therefrom shall be borne exclusively by the loser-spouse. (153a, 154, 155, 159)
PRESUMPTION OF BEING CONJUGAL PROPERTY Art. 116. All property acquired during the marriage,
whether the acquisition appears to have been made, contracted or registered in the name of one or both
spouses, is presumed to be conjugal unless the contrary is proved. ADMINISTRATION AND ENJOYMENT
OF CONJUGAL PROPERTY Art. 124. The administration and enjoyment of the conjugal partnership shall
belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, 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 conjugal 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 shall be void. However, the transaction shall 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.
I- Fundamentals of Property Ownership - CRESAR 2011 I- 20
EXCLUSIVE PROPERTIES The following properties are considered as exclusive, paraphernal, or belonging
only to one of the spouse: 1. That which is brought to the marriage as his or her own; 2. That which each
acquires during the marriage by gratuitous or lucrative title; 3. That which is acquired by right of redemption
or by exchange with other property belonging to only one of the spouse; and 4. That which is purchased with
the exclusive money of the wife or the husband. The general rule is that conjugal properties cannot be alienated
without the consent of both spouses; while respect to exclusive properties, the owner thereof can alienate the
same without the consent of the other spouse. EFFECTS OF SEPARATION IN FACT Art. 127. The separation
in fact between husband and wife shall not affect the regime of conjugal partnership,
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 conjugal partnership property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse present shall, upon 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.
II. ABSOLUTE COMMUNITY OF PROPERTY Absolute Community of Property presupposes that all present
and future properties of the spouses shall be considered as belonging jointly to the husband and the wife except
the following: 1. Property acquired by gratuitous title by either spouse when it is provided by the donor or
testator that it shall not become part of the community property; 2. Property inherited by either husband or wife
through the death of a child by a former marriage, there being brothers and sisters of the full blood of the
deceased child; 3. A portion of the property of either spouse equivalent to the presumptive legitimate of the
children by a former marriage; and 4. Personal belongings of either spouse. The ownership, administration and
usufruct of the community property pertain to the spouses jointly.

I- Fundamentals of Property Ownership - CRESAR 2011 I- 21

WAIVER OF RIGHTS Art. 89. 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 same shall
appear in a public instrument and shall 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. (146a) PRESUMPTION OF ABSOLUTE COMMUNITY PROPERTY Art. 93.
Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one
of those excluded therefrom. OWNERSHIP, ADMINISTRATIVE, ENJOYMENT AND DISPOSITION OF
COMMUNITY PROPERTY Art. 96. The administration and enjoyment of the community property shall
belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, 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 shall be void. However, the transaction shall 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. (206a)
DONATION BY SPOUSE Art. 98. 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. III. COMPLETE
SEPARATION OF PROPERTIES If the spouses before the marriage agree on complete separation of
properties, the separation may refer to both present and future properties or it may be total or partial. The
ownership, administration and usufruct of those properties which are considered separate pertain to the spouse
to whom they belong. Each spouse shall proportionately bear family expenses.
I- Fundamentals of Property Ownership - CRESAR 2011 I- 22
RIGHT TO DISPOSE, POSSESS, ADMINISTER EXCLUSIVE PROPERTY Art. 145. Each spouse shall own,
dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the
other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits,
natural, industrial or civil, due or received during the marriage from his or her separate property. RIGHT OF
SPOUSE OVER EXCLUSIVE PROPERTY Art. 110. The spouses retain the ownership, possession,
administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer
the administration of his or her exclusive property to the other by means of a public instrument, which shall be
recorded in the registry of property of the place the property is located. (137a, 168a, 169a) Art. 111. A spouse
of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the
consent of the other spouse, and appear alone in court to litigate with regard to the same. SEPARATION OF
PROPERTY DURING MARRIAGE Art. 134. In the absence of an express declaration in the marriage
settlements, the separation of property between spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (190a) Art.
135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the
spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the
spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the
spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the
latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the
spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at
the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly
improbable. IV. ANY OTHER REGIME ex. Dowry system
_________________________________________________________________________

I- Fundamentals of Property Ownership - CRESAR 2011 I- 23

MARITAL CONSENT IN DEED OF SALE 1. Marital consent is required
a) when the property relations between the spouses is one of absolute community and the property is
community property; or
b) when the property relations between the spouses is one of conjugal partnership and the property involved
was acquired by onerous title during the marriage at the expense of the common fund.
2. Marital consent is NOT necessary
a) when the property relations between the spouses is one of absolute separation; or
b) when the property relations between the spouses is one of conjugal partnership and the property involved:
1. was brought into the marriage by either of the spouses [ property nomenclature ]
husband's exclusive property - capital
wife's exclusive property - paraphernal
2. was acquired by either of the spouses by inheritance; or
3. was acquired with exclusive funds of either of the spouses.
_____________________________________________________________________
PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other
as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property acquired by both of them through their work or industry shall
be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have
been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes
of this Article, a party who did not participate in the acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.
What if the Filipino was married to foreigner?
Read more details about it here >CAN FOREIGNERS OWN PHILIPPINE PROPERTIES?

I encountered so many cases wherein certain properties could not be sold, mortgaged, exchanged, donated or
joint-ventured simply because the spouses got estranged, and/or the other spouse is no where to be found, or
the spouses would not want to speak to each other anymore.

We often hear lovers always say that they would give their life and their all to their loved one. But in many
cases, after the separation, divorce or annulment, spouses wouldnt want to give half of what they own to their
estranged partner!

My advice to engaged couples about to be married are these:

1. Put aside P200,000.00 in a secured savings bank in case the couple separated, theyll have money to spend
for their annulment proceedings.
2. Both parties should agree to a marriage settlement, that clearly defines who-owns-what, to avoid more
trouble in case they be separated, divorced or annulled in the future.
3. Make sure to prepare a notarized will before any of the spouse dies so that the heirs would know exactly
what to do with the inheritance left by the deceased partner.

Read more:http://www.philippinesangeles.com/who-owns-the-property-the-husband-or-thewife/#ixzz3negEWoi8

Filipinos are a romantic lot. We love fantasizing about a happily ever after where
the prince charming ends up with his princess.
The sanctity of marriage is absolute to us, which partly may be the reason were
the only country in the world where divorce is not allowed. Many couples that I

know of go to great lengths to avoid all matters that may affect the harmony of a
marriage. One of these is the issue of money and, by extension, properties.
Theres nothing wrong about keeping the peace, of course. Who doesnt want a
marriage thats nothing but pure marital bliss. However, this is not realistic. In the
United Kingdom, for example, 42 percent of marriages end in divorce, according
to their Office of National Statistics. Who knows how many Filipino couples
end up separated or marriages annulled. But given our obsession with the
querida subculture (as of this writing I counted at least four soap operas in which
infidelity is the major theme), its fair to say that a lot.
Which brings us back to the question of money (and properties). How do married
couples share properties acquired before and during marriage, and how are
these divided when the marriage turns sour and ends?
To do this, its best to review what our laws prescribe. According to Ernesto Perez
II, a real estate attorney and a member of the Muntinlupa Real Estate Board,
there are two regimes that cover couples marital properties. One of which is the
conjugal partnership of gains, which applies to marriages that took place before
the Family Code of the Philippines took effect in 1988.
According to the conjugal partnership of gains regime, the couples properties will
be like this:
1. Properties acquired by the husband before he got married shall be
exclusively his, the same way that the wifes will be hers.
2. However, when they get married their exclusive properties shall be joined
together as part of a one estate within the conjugal property and the fruits
of those properties shall be shared for the duration of the marriage. In

addition, any property acquired during their marriage shall be considered

part of this and equally owned by the husband and wife.
3. Should the marriage ends and the couple decides to file for legal
separation or annulment, the husbands exclusive properties he acquired
before marriage, including their fruits, will be taken out of the joined
estate and once again will be solely owned by him. The same applies to
the wifes exclusive properties.
4. The properties acquired by both or any of the spouses during their
marriage shall be considered part of their conjugal property and will be split
in half.
Under this scenario, when the married couple gets estranged, one spouse can
freely dispose of (sell, mortgage, lease, exchange, or donate) his or her
properties he or she acquired before marriage, even without the consent of the
other spouse. If the property in question was acquired during marriage, however,
notarized written consent from both spouses is still needed.
However, if a couple was married on August 3, 1988, up to present, their
properties will no longer be governed by the law of conjugal property but instead
by the provisions of the Family Code of the Philippines signed by then-president
Corazon Aquino.
Under the law, in the absence of a marriage settlement (typically a prenuptial
agreement or prenup), a married couples properties acquired before and during
marriage will automatically become co-owned by the couple under the property
regime called absolute community of property.
Under this regime, the couples properties will look like this:

1. All properties acquired by the spouses before and during marriage,

including those donated to and/or inherited by either of the spouse, will be
considered part of the absolute community of property.
2. Legal separation, divorce, or annulment will not affect this regime, unless
the spouses file for judicial separation of properties, in which case the
properties within the regime shall be split in half between the husband and
the wife.
The absolute community of property regime is considered the default property
regime in the absence of a marriage settlement or prenup. It treats properties
acquired by the spouses during their marriage as jointly owned, which means
that the spouses are considered as co-owners of all properties they bring into the
marriage, as well as those they acquired during the marriage.

What If the Couple Decides to Keep Them Separated

Before They Get Married?
Perhaps because of the Family Code, prenuptial agreements or prenups are
slowly becoming more common, observes Atty. Melencio Sta. Maria, a professor
of family relations law and obligations at the Ateneo de Manila School of Law.

More couples have become more aware of their rights, including

their right to keep separated their properties and assets acquired
before marriage.

Prenups are also advantageous for couples who prior to marriage already have
numerous properties that they would prefer to keep in their name, says Atty.
Perez. In addition, theyre also appropriate if one of the spouses has a child from
a previous marriage so that the child is cared for properly in the future.
But thanks to our obsession to Hollywood and many celebrities messy divorce
settlements, prenups have gotten a bit of a bad press among many Filipinos. The
very act of entering into one is seen by many Filipinos as unromantic and may do
more harm than good to a couples relationship.
Atty. Sta. Maria says this shouldnt be the case. A prenup shouldnt be looked at
as something that shows a lack of trust between spouses, or to create animosity
between them. It is very useful not only in managing their real properties, but also
in the case where each of them were running separate businesses prior to
marriage.
For example, if before marriage the husband runs a construction supplies
business and wants to maintain sole ownership to the said business during
marriage, he can do so by stipulating it in the prenup. This way, he can enter into
contracts, apply for a loan to scale up operations, or sell the business even

without the consent of his wife. The wife can do the same if, say, she runs an
interior decorating business prior to marriage.
Hence, a prenup not only protects assets but having one in place also allows
couples to maintain the flexibility of the businesses they individually run, said
Atty. Sta. Maria.

If there is separation of property, the couples individual

businesses are not restricted because they each can proceed
with their respective business without having to seek the
consent of the other spouse in every transaction.
In the absence of a prenup, both husband and wife become co-administrators of
each of their properties. Although there are advantages to thissuch as
combined resources for their businesses, shared expertise, and spreading the
riskit also reduces the flexibility as one cannot dispose of the property without
the consent of the other. For example, if one tries to sell land without the consent
of the other, that sale would be considered void.
This can become problematic, especially when looked at from the buyers
standpoint. According to Atty. Perez, legally, all marital properties that are
intended for sale should have the consent of the spouse.

To be absolutely sure that the seller is protected, he or she

should require that both spouses to be physically present during
the execution of the deed of sale.

Misconceptions
One common misconception about prenups is that it is used to completely shield
a persons properties from his or her spouse, similar to what we usually see in

movies in which the rich parents force their future son-in-law to sign one in order
to protect the family fortune.
However, unlike in the United States, the Philippines succession and inheritance
laws give protection to compulsory heirs, one of whom is the spouse, said Atty.
Chester Ogsimer. This means that no amount of legal hocus focus in the prenup
can deprive a spouse of his or her inheritance. Atty. Sta. Maria concurs:

Spouses, with or without a prenup, remain heirs of each other,

the same way that their children are their rightful heirs.
But to prevent tension or feelings of mistrust from developing later on, Atty. Sta.
Maria advises couples to talk about having a prenup ideally at the earliest stage
of the relationship or engagement, and the couple should be sincere and honest
when disclosing their assets and debts.
And in order for a prenup to be valid, it must be executed before the marriage,
should be in writing, and, in most cases, done in the presence of lawyers. The
latter can help prevent awkward situations from arising.
Furthermore, the prenup must be registered in the local civil registry where the
marriage contract is recorded and also in the proper Register of Deeds where the
pieces of property of the future spouses are located in order to bind third parties.
Although there is nothing inherently wrong with Filipinos aversion with prenups, it
doesnt hurt to be ready and have one in place either. Were all for couples
staying married till death do them part, but life isnt always a fairy tale, as the
saying goes. Who knows what would happen 10 or 15 years into a marriage
even the most perfect one can lead to annulment.

But what counts is the married couple continuously nurturing their relationship
with love, respect, openness, and trust. Once this is fulfilled, the presence or
absence of a prenuptial agreement no longer matters.
Marriage Settlement and Property Regimes
1.
What is a marriage settlement?
A marriage settlement is an agreement executed between two parties who plan to get married, in
preparation for the property regime that would govern their conjugal property during the marriage.
Such agreements are also commonly known as Pre-Nuptial Agreement.
The future spouses may, in the marriage settlements, agree upon the regime of absolute community,
conjugal partnership of gain, complete separation of property, or 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 shall govern. (Article 75 of the Family Code of the
Philippines)
2.
What is a property regime?
A property regime is the set of rules agreed upon by the parties, before getting married, which would
govern their property relations during the course of their married life.

3.
What are the different kinds of property regimes in the Philippines?
There are three kinds of property regimes which are recognized by the laws of the Philippines:
1.
2.
3.

Regime of Absolute Community of Property

Regime of Conjugal Partnership of Gains
Regime of Complete Separation of Properties

4.
Explain the Regime of Absolute Community of Property.
In the Regime of Absolute Community of Property, the husband and the wife become co-owners of all
the properties that they bring into the marriage and those acquired by either or both of them during
the course of their marriage, save for some exceptions. (Article 90 of the Family Code of the
Philippines)
The administration and enjoyment of the community property shall belong to both the spouses
jointly. (Article 96 of the Family Code)
Neither spouse may donate any community property without the consent of the other. (Article 98 of
the Family Code)
The Regime of the Absolute Community of Property is the default property regime that would govern
the property relations of a couple who had not executed a marriage settlement prior to their marriage.

5.
Explain the Regime of Conjugal Partnership.
In Regime of Conjugal Partnership of Gains, the husband and the wife retain ownership over their
respective properties. The Parties place in a common fund the proceeds, products, fruits and income
from their separate properties and those acquired by either or both spouses through their efforts or by
chance. Upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by
either or both spouses shall be divided equally between them, unless otherwise stated in the marriage
settlements. (Article 106 of the Family Code of the Philippines)

The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly.
(Article 124 of the Family Code of the Philippines)
Neither spouse may donate any conjugal partnership property without the consent of the other.
(Article 125 of the Family Code of the Philippines)
6.
Explain the Regime of Complete Separation of Properties.
In the Regime of Complete Separation of Properties, each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without need of the consent of the other. To each
spouse shall belong all the earnings from his or her profession, business or industry and all fruits,
natural, industrial or civil, due or received during the marriage from his or her separate
property. (Article 145 of the Family Code of the Philippines)
The Parties are free to manage their respective properties without interference from the other spouse.
Likewise, the Parties are also free to donate without interference of the other.
7.
What is the conjugal partnership responsible for?
The conjugal partnership shall be liable for:
a)
The support of the spouse, their common children and the legitimate children of either spouse;
however, the support of the illegitimate children shall be governed by the provisions on this Code on
Support;
b)
All debts and obligations contracted during the marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of gains, or by both spouses, or by one of them with the
consent of the other;
c)
Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have benefited;
d)
All taxes, liens, charges and expenses, including major and minor repairs upon the conjugal
partnership property;
e)
All taxes and expenses for mere preservation made during the marriage upon the separate
property of either spouse;
f)
Expenses to enable either spouse to commence or complete a professional, vocational or other
activity for self-improvement;
g)

Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;

h)
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 or other
activity for self-improvement, and
i)

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

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

8.
Are we required to have a marriage settlement to get married?
No, it is not mandatory that couples planning to get married must execute a marriage settlement.
Absent of a marriage settlement, the property regime that would govern the property relations, as
stated in the Family Code of the Philippines, would be Absolute Community of Property.
9.

When should the marriage settlement be executed by the Parties?

The marriage settlement should be executed prior to the celebration of the marriage of the Parties, for
the marriage settlement to be valid. (Article 76 of the Family Code of the Philippines)
10. What if the couple decided after their marriage to execute a marriage settlement?
The marriage settlement would not be valid. For the marriage settlement to be valid, it must be
executed prior to the celebration of the marriage. Any other time after the celebration of the marriage,
would render the marriage settlement as void.

11. What if the couple decides to modify their valid and existing marriage settlement after
the celebration of their marriage?
Likewise, any modifications to the marriage settlement must be done prior to the celebration of the
marriage, for the modifications to be valid. Any later, after the celebration of the marriage, would
render the modification to the marriage settlement as void and it would not be applied to the marriage
settlement. (Article 76 of the Family Code of the Philippines)
Post-marriage modification of marriage settlements can take place only where:
(a) The absolute community or conjugal partnership was dissolved and liquidated upon a decree of
legal separation;
(b) The spouses who were legally separated reconciled and agreed to revive their former property
regime;
(c) Judicial separation of property had been had on the ground that a spouse abandons the other
without just cause or fails to comply with his obligations to the family; 2
(d) There was judicial separation of property under Article 135; or
(e) The spouses jointly filed a petition for the voluntary dissolution of their absolute community or
conjugal partnership of gains.

12. When would the property regime commence?

The property regimes shall commence at the precise moment that the marriage is celebrated.

13. Can the Parties stipulate some other time, apart from the celebration of the marriage,
for the property regime to commence?
No, the property regime will only commence at the celebration of the marriage and no other time. Any
stipulation contrary to this would be contrary to law which provides that any stipulation, express or
implied, for the commencement of the property regime at any other time shall be void.(Article 88 of
the Family Code of the Philippines)
14. Is there a need for the marriage settlement executed by the Parties be registered in a
specific government agency?
No, there is no need for the Parties to register the marriage settlement in a specific government
agency. Because the marriage settlement is between the Parties, it is valid because it is in the nature
of a contract. Obligations arising from contracts have the force of law between the contracting parties
and should be complied with in good faith. (Article 1159 of the New Civil Code of the
Philippines)
However, the marriage settlement shall 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. (Article 77 of the Family Code of the Philippines)

15. Can the spouses mutually agree to dissolve their conjugal partnership?
Yes. The husband and the wife may agree upon the dissolution of the conjugal partnership during
marriage, subject to judicial approval. All the creditors of the husband and of the wife, well as of the
conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution
of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his
interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take
such measures as may protect the creditors and other third persons. (Article 191 of the New Civil
Code of the Philippines)
16. What are the instances that a spouse may ask for judicial separation, as stated under
Article 135?
Under Article 135, a spouse may petition the court for judicial separation of property in case of the
following instances below:
a)
That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;
b)

That the spouse of the petitioner had been judicially declared an absentee;

c)

That loss of parental authority of the spouse of the petitioner has been decreed by the court;

d)
That the spouse of the petitioner has abandoned the latter or failed to comply with his or her
obligations to the family as provided for in Article 101;
e)
That the spouse granted the power of administration in the marriage settlement has abused that
power;
f)
That at the time of the petition, the spouses have been separated in fact for at least one year
and reconciliation is highly improbable.

17. If I had gotten married without making any marriage settlement or pre-nuptial
agreement, would there be a property regime that would govern our property relations?
In the absence of a marriage settlement or a pre-nuptial agreement between the Parties, the Regime
of Absolute Community of Property would govern the property relations of the Parties.

18. If we did not execute any marriage settlement before our marriage, may we still
change our property relations during our marriage?
No, any modifications to the marriage settlement must be made before the celebration of the
marriage, for the modifications and changes to be valid. (Article 76 of the Family Code of the
Philippines)
However, the Parties may jointly file a verified petition with the court for the voluntary dissolution of
the absolute community or the conjugal partnership of gains, and for the separation of their common
properties during their marriage. (Article 136 of the Family Code of the Philippines)
19. I had executed a marriage settlement with my fianc but our marriage did not push
through. What will happen to the marriage settlement agreed between us?
The marriage settlement would be rendered void because the consideration of a marriage settlement
is the marriage itself. However, if there are provisions or stipulations in the marriage settlement that
does not depend upon the occurrence of the marriage, those stipulations shall be valid.

20. I got married to my husband on 04 January 1986, without making a pre-nuptial

agreement. Which property regime would govern our property relations, considering that
the Family Code had not yet been enacted?

For marriages that were celebrated before the enactment of the Family Code, the marriage would fall
under the Civil Code. Under the Civil Code, the default property regime, in the absence of a prenuptial agreement, is the Conjugal Partnership of Gains.
21. I recently married my husband, an American citizen and we executed a pre-nuptial
agreement. Would the pre-nuptial agreement be binding in the Philippines, despite the fact
both our marriage and the marriage settlement, was celebrated in the United States?
Yes, the pre-nuptial agreement between both of you would be valid. The property relations of the
spouses shall be governed by the Philippine laws, barring any contrary stipulations in the marriage
settlement, regardless of the place of celebration of the marriage and the residence of the spouses.
(Article 80 of the Family Code of the Philippines)
22. I already owned a condo and a small farm when I met my husband. We did not execute
a marriage settlement. What will happen to my properties?
Your condo and the farm would be deemed part of the community property in the absence of any
marriage settlement executed prior to the marriage.
23. I am a single father who has 3 children and owns a house and lot and a gas station. I
recently married my new wife without executing a marriage settlement. What will happen
to my properties?
The house and lot as well as the gas station would be excluded from the community property.
This is because, properties 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 properties, are
deemed excluded from the community properties. (Article 92(3) of the Family Code of the
Philippines)
24. In our marriage settlement, my husband and I elected to have Conjugal Partnerships of
Gains as the property regime that would govern our property relations in our marriage.
Which properties would belong to me exclusively?
Each spouse would retain the ownership, possession, administration, and enjoyment of their exclusive
properties. (Article 110 of the Family Code of the Philippines)
The following are the exclusive properties of each spouse:
1.
2.

Those properties that each spouse had brought to the marriage as their own;
Those properties which had been acquired by the spouses during the marriage by gratuitous
title;
3.
Those properties which had been acquired by right of redemption, by barter or by exchange
with property belonging to only one of the spouses; and
4.
Those properties which had been purchased with the exclusive money of the spouse.
(Article 109 of the Family Code of the Philippines)
25. My husband and I did not execute a marriage settlement. After our wedding, my
brother donated a condo to me alone. To whom would the condo belong?
The condo would belong to you alone. Property acquired during marriage by gratuitous title by either
spouse is deemed executed from the community property. (Article 92 (1) of the Family Code of
the Philippines)
26. What about the debts of my husband incurred from gambling, if we have no marriage
settlement?
You will not be liable for the debts of your husband incurred from gambling. Whatever your husband
lost during your marriage in any game of chance or in betting, sweepstakes, or any other kind of

gambling whether permitted or prohibited by law, shall be borne by him and shall not be charged to
the properties owned in common. (Article 95 of the Family Code of the Philippines)
27. I recently found out that my husband had taken out a huge loan. Will our conjugal
properties be liable for his loan, despite the fact I had no knowledge of it nor was a party?
No. The conjugal property should not be liable to the personal loan taken out by your husband. The
payment of personal debts contracted by the husband or the wife before or during the marriage shall
not be charged to the conjugal properties partnership except insofar as they redounded to the benefit
of the family. (Article 122 of the Family Code of the Philippines)
28. What if the loan was used for the construction of our house?
If the loan was taken out for the construction of the family house, the conjugal properties may be
liable, despite the fact that you had no knowledge of the loan. (Article 122 of the Family Code of
the Philippines)
29. What if my husband had been arrested and is ordered to pay a fine of Ten Thousand
Pesos (PhP10,000.00), will the amount be taken out of our conjugal properties?
No. The amount for the fine would not be applied to the conjugal property.
The payment of personal debts contracted by the husband or the wife before or during the marriage
shall not be charged to the conjugal properties partnerships except insofar as they redounded to the
benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.
(Article 122 of the Family Code of the Philippines)
30. What happens if my husband had no other property or money apart from our conjugal
property?
If your husband had no other property or money apart from the conjugal property, the debt or the fine
may be applied to your conjugal property.
The payment of personal debts contracted by either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may
be enforced against the partnership assets after the responsibilities enumerated in the preceding
Article have been covered, if the spouse who is bound should have no exclusive property or if it should
be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for
what has been paid for the purpose above-mentioned.

31. My fianc had recently been imprisoned and one of his penalties is civil interdiction.
Can we still execute a marriage settlement?
Yes. However, the guardian, who would be appointed by the court, of the party suffering from civil
interdiction shall be made a party to the written marriage settlement. (Article 79 of the Family
Code of the Philippines)
32. I had recently reconciled with my husband. However, we had been legally separated for
about 10 years now. Are we allowed to revive the property regime that was subsisting
during our marriage, despite the fact that we had been legally separated?
Yes. You can revive the property regime that was in existence during your marriage as your situation
falls under one of the cases that a post-marriage modification may take place, specifically, The
spouses who were legally separated reconciled and agreed to revive their former property regime.

33. My partner and I had been living for some time without the benefit of marriage and we
had acquired a house and lot for our family. What property regime would govern our
properties?
When parties who are capacitated to contract marriage live together as man and wife without the
benefit of marriage or under a void marriage, they are deemed as co-owners in the equal share of
their wages, salaries and properties. (Article 147 of the Family Code of the Philippines)
34. I had been living with my girlfriend for 5 years and I am the sole breadwinner. Does
she have any share in my income despite the fact we are not married?
Yes. Under the law, the care and maintenance expressed by your girlfriend towards you, your family
and your home are deemed as her contribution to the union between both of you.
In absence of proof to the contrary, properties acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or industry, and shall be owned by them in equal
shares. (Article 147 of the Family Code of the Philippines)
35. What if my partner was still married to her husband and we had acquired properties?
The properties that both of you had acquired would be deemed as under a co-ownership with you and
your partner as the co-owners in proportion to your respective contributions. Absent proof of actual
contributions, the contributions and corresponding shares shall be deemed equal. However, since your
partner still has a subsisting marriage, his share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in his marriage.

36. My marriage to my ex-husband had been recently declared by the courts as void. What
will happen to our properties acquired during the time of cohabitation?
According to Article 147 When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife, without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them in equal shares and the property acquired
by both of them through their work or industry shall be governed by the rules on co-ownership.
In absence of proof to the contrary, properties acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or industry, and shall be owned by them in equal
shares. For purposes of this Article, a party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed jointly in the acquisition thereof in the
formers efforts consisted in the care and maintenance of the family and the household. xxx
This particular kind of co-ownership applies when a man and a woman, suffering no legal impediment
to marry each other, so exclusively live together as husband and wife under a void marriage or without
the benefit of marriage. Under this property regime, property acquired by both spouses through their
work and industry shall be governed by the rules on equal co-ownership. Any property acquired during
the union is prima facie presumed to have been obtained through their joint efforts. A party who did
not participate in the acquisition of the property shall be considered as having contributed thereto
jointly if said partys efforts consisted in the care and maintenance of the family household. Unlike
the conjugal partnership of gains, the fruits of the couples separate property are not included in the
co-ownership. (Valdez vs. RTC, Branch 102, Quezon City, G.R. No. 122749, 31 July 1996)
37. What if my husband knew all along that our marriage was void, what will happen to our
properties?
The share of the party who is in bad faith shall be forfeited in favor of the common children. However,
if the union produced no children or if the common children or their descendants waive their right to
their respective share, the properties shall belong to you. (Article 147 of the Family Code of the
Philippines)

We previously noted that we are breaking down the discussion on the property relations of the
spouses during marriage, as follows: (1) Prenuptial agreements and introduction to property relations
between husband and wife; (2) The system of absolute community; (3) Conjugal partnership of
gains; (4) Complete separation of property; (5) Donations by reason of marriage; and (6)
Comparison of the various types of property relations between spouses. This post is Part 3.
What is the conjugal partnership of gains?
Oftentimes referred to as the CPG, it is one of the property relations between the spouses, under
which the husband and wife place in a common fund the proceeds, products, fruits and income from
their separate properties and those acquired by either or both spouses through their efforts or by
chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits
obtained by either or both spouses shall be divided equally between them, unless otherwise agreed
in the marriage settlements. In other words, the following are placed in a common fund:
1.

the

proceeds,

products,

fruits

and

income

from

their

separate

properties;

and

2. those acquired by either or both spouses through their efforts or by chance.

In what instances shall the regime of CPG apply?
It applies only when the future spouses agree to it in the marriage settlement, if any. It also applies to
conjugal partnerships of gains already established between spouses before the effectivity of
the Family Code, without prejudice to vested rights. This is the default property relationship under the
Civil Code, which was changed to that of absolute community of property under the Family Code.
When does the CPG begin?
It begins at the precise moment when the marriage is celebrated, exactly like in absolute community
of property.
Can a spouse waive his/her share in the community property during marriage?
No. Except in case of judicial separation of property, any waiver of rights, shares and effects of the
absolute community of property during the marriage can be made.
Are the rules on ordinary partnership applicable to the conjugal partnership of gains?
As a rule, yes, but only if not in what is expressly provided in the pertinent provisions of the Family
Code or by the spouses in their marriage settlements.

What are the exclusive property of each spouse?

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by gratuitous title (through pure liberality, as in
donation and testate/intestate succession);
(3) That which is acquired by right of redemption, by barter or by exchange with property belonging
to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife or of the husband.
What is the significance of having an exclusive property?
The spouses retain the ownership, possession, administration and enjoyment of their exclusive
properties. A spouse may also mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and appear alone in court to litigate with
regard to the same.
Either spouse may, during the marriage, transfer the administration of his or her exclusive property to
the other by means of a public instrument, which shall be recorded in the registry of property of the
place the property is located. However, the alienation of any exclusive property of a spouse
administered by the other automatically terminates the administration over such property and the
proceeds of the alienation shall be turned over to the owner-spouse.
What properties belong to the conjugal partnership?
(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether
the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from the common
property, as well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of
the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind
brought to the marriage by either spouse; and

(7) Those which are acquired by chance, such as winnings from gambling or betting. However,
losses therefrom shall be borne exclusively by the loser-spouse.
What is the presumption regarding properties acquired during marriage?
All property acquired during the marriage, whether the acquisition appears to have been made,
contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the
contrary is proved.
What is the rule in case of purchase by installment?
Property bought on installments paid partly from exclusive funds of either or both spouses and partly
from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage
and to the conjugal partnership if such ownership was vested during the marriage. In either case,
any amount advanced by the partnership or by either or both spouses shall be reimbursed by the
owner or owners upon liquidation of the partnership.
What is the rule in case a spouse has a credit payable to him over time?
Whenever an amount or credit payable within a period of time belongs to one of the spouses, the
sums which may be collected during the marriage in partial payments or by installments on the
principal shall be the exclusive property of the spouse. However, interests falling due during the
marriage on the principal shall belong to the conjugal partnership.
What is the rule if improvements are made on that exclusive property using conjugal funds or
through

the

acts

or

efforts

of

either

or

both

spouses?

The ownership of improvements, whether for utility or adornment, made on the separate property of
the spouses at the expense of the partnership or through the acts or efforts of either or both spouses
shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following
rules:
1. When the cost of the improvement made by the conjugal partnership and any resulting increase in
value are MORE than the value of the property at the time of the improvement, the entire property of
one of the spouses shall belong to the conjugal partnership.
2. When the cost of the improvement made by the conjugal partnership and any resulting increase in
value are LESS than the value of the property at the time of the improvement, the entire property
shall remain with the owner-spouse.

3. In either case, the owner-spouse or the conjugal partnership, as the case may be, is entitled to
reimbursement for the value of the principal property or the improvement, as the case may be.
4. It doesnt matter if the improvements are for utility or adornment.
What are the charges upon and obligations of the conjugal partnership?
The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate children of either spouse;
however, the support of illegitimate children shall be governed by the provisions of the Family Code
on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the
consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal
partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon the separate
property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other
activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate
children for the exclusive purpose of commencing or completing a professional or vocational course
or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.

What are the rules concerning personal debts contracted before or during the marriage?
1. As a rule, the payment of personal debts contracted by the husband or the wife before or during
the marriage shall not be charged to the conjugal partnership properties.
2. However, these debts shall be charged to the conjugal partnership properties insofar as they
redounded to the benefit of the family.
3. If the spouse has no exclusive property, it may be charged to the conjugal partnership, subject to
the provisions below.
What are the rules concerning fines and pecuniary indemnities imposed on each spouse?
These cannot be charged to the partnership. However, the payment of personal debts contracted by
either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the
support of illegitimate children of either spouse, may be enforced against the partnership assets after
the charges/obligations enumerated in above have been covered, if the spouse who is bound should
have no exclusive property or if it should be insufficient; but at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for the purpose above-mentioned.
What is the rule in case of winnings or losses in gambling?
Any loss incurred by a spouse during the marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by
that spouse, and shall not be charged to the conjugal partnership. Any winnings, on the other hand,
shall form part of the conjugal partnership property.
Who has the authority to administer the conjugal partnership property?
The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In
case of disagreement, the husbands decision shall prevail, 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 conjugal 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 shall be void. However, the transaction shall 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 either spouse make donations of conjugal partnership property?
As a rule, neither spouse may donate any conjugal partnership property without the consent of the
other. However, either spouse may, without the consent of the other, make moderate donations from
the conjugal partnership property for charity or on occasions of family rejoicing or family distress.
When does the conjugal partnership terminate?
(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.
Does the separation in fact or de facto separation between the spouses affect the conjugal
partnership?
No. However, the following are the effects:
(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 conjugal partnership property, the separate property of both spouses
shall be solidarily liable for the support of the family. The spouse present shall, upon 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 latters share.
What is the rule if a spouse abandons the other?
If a spouse without just cause abandons the other or fails to comply with his or her obligation to the
family (referring to marital, parental or property relations), the aggrieved spouse may petition the
court for receivership, for judicial separation of property, or for authority to be the sole administrator
of the conjugal partnership property, subject to such precautionary conditions as the court may
impose.

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 applicable procedure in the event of dissolution of the conjugal partnership
regime?
The following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership
and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of
either spouse shall be credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of
property or for the value of his or her exclusive property, the ownership of which has been vested by
law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In
case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with
their separate properties.
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each
of them.
(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of
movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event,
shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the profits, 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 or forfeiture of such
share as provided in this Family Code.
(8) The presumptive legitimes of the common children shall be delivered upon partition.

(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, 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.
If a spouse dies, how is the conjugal partnership liquidated?
Upon the termination of the marriage by death, the conjugal partnership 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 conjugal partnership property either
judicially or extra-judicially within six months from the death of the deceased spouse.
What happens if the foregoing procedure in the immediately preceding paragraph is not
carried

out?

If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or encumbrance
involving conjugal partnership property by the surviving spouse shall be void; and (b) any
subsequent marriage shall be governed by the mandatory regime of complete separation of property.
How is support charged during the liquidation?
From the common mass of property support shall be given to the surviving spouse and to the
children during the liquidation of the inventoried property and until what belongs to them is delivered;
but from this shall be deducted that amount received for support which exceeds the fruits or rents
pertaining to them.

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 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)

Heirs and inheritance (Part 7): Is property acquired before marriage the exclusive
property of each spouse or does it belong to both spouses?
Question: I got married in 2001; some people in an online forum told me that properties acquired
when I was single and titled in my name are still mine. Does my husband have any right to these
properties? What will happen to these properties when I die?
Answers:
[1] I got married in 2001; some people in an online forum told me that properties under my name
acquired when I was single are still mine.
These people are wrong.
Most Filipinos are confused as to whether properties acquired before marriage are the
exclusive property of each spouse or belong to both spouses. This confusion can be cleared
up by:

determining what date the marriage was solemnized; if it was solemnized before August 3,
1988, then the applicable law is the New Civil Code of the Philippines, not the Family Code;

determining whether the man and woman, before they got married, agreed on a system of
property relations that would govern them; if there was no agreement, then for marriages

solemnized after August 3, 1988 (date the Family Code became effective), absolute
community of property is automatically the system.
The problem is that most Filipinos get married without knowing that they can choose among
absolute community of property (ACP), conjugal partnership of gains (CPG), or complete
separation of property.
Since you got married in 2001 (and it seems there was no agreement between you and your
husband before you got married), then absolute community of property is automatically the system
between yourselves. Under Article 91 of the Family Code, upon your marriage, all properties
belonging to either you or your husband automatically became part of the community property.
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community
property shall consist of all the property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.
For example, you bought a subdivision lot while you were single. The lot is titled in your
name. At the time you got married, this lot automatically became part of the community property
between you and your husband, even if the title remains in your name all throughout your marriage.
If you are going to sell this subdivision lot, you will need your husbands conformity since it has
become community property.
Upon your death, this lot will be distributed as follows:

50% will go to your husband as his share in the community property;

50% will be divided among your heirs (if you have no children and your parents or
grandparents are dead, then your husband will get 25% while your brothers and sisters will
divide among themselves the other 25%, under Art. 1001 of the New Civil Code of the
Philippines).

[2] When are properties acquired before marriage the exclusive property of each spouse?

Exception 1:

Exception 2:

If the man and woman

before getting married
agreed that their property
relations would be governed
either by conjugal
partnership of gains (Articles
105 to 133 of the Family

If the marriage was

solemnized before August
3, 1988 (date of effectivity
of the Family Code), then
properties acquired before
marriage are the exclusive
property of each spouse.

Code) or by complete
separation of
property (Article 143 to 146
of the Family Code).
Article 109 enumerates what
the exclusive properties of
each spouse are. Paragraph
(1) expressly states that
property brought to the
marriage as his or her own
is exclusive property.

Why?
The New Civil Code of the
Philippines was the the
prevailing law before the
Family Code became
effective. The NCC
provided that, in the
absence of an agreement
between the future
spouses, the default
system of property
relations would be
conjugal partnership of
gains.

Donations by Reason of Marriage

What inheritance laws apply in Philippines?

The law of the foreigners nationality governs inheritance in the Philippines.

Philippine inheritance law is governed by the Civil Code of the Philippines, with the Rules of Court
completing the procedural framework.
The general principle in the Philippines is that substantive issues of inheritance, such as the order of
succession, amounts of successional rights, validity of testamentary dispositions, capacity to inherit,
absence of a will, compulsory heirs, and reserved and free portions are primarily assessed according
to the national laws (or, in certain cases, domiciliary laws) of deceased foreigners. The national or
domiciliary laws of the deceased foreigner apply regardless of the nature or location of the property
in question.

It is possible that the inheritance issues of some foreigners who own property in the Philippines
might become subject to renvoi (i.e. the issues are referred back to the Philippines). Situations in
which renvoi may be anticipated include:

If the property in question is located in the Philippines, and the foreigners national
law states that the applicable legislation for inheritance issues is the law of the
country where the property is located (lex situs).

If the foreigners national law states that the applicable legislation is that of the
foreigners domicile, and the domicile of the foreigner, as defined by his/her national
law, is the Philippines.

If the foreigners national or domiciliary laws refer inheritance issues back to the
Philippines, even though the Philippines is not the foreigners domicile or country of
residence.

In the above cases, the Philippines legal system, as ruled by the Supreme Court, has no alternative
but to accept the renvoi, and apply the Philippines Civil Code, thereby avoiding conflicts with the
national or domiciliary laws of the deceased foreigner.
The court dealing with inheritance issues depends on the value of the estate.

If the gross value exceeds Php200,000 (about US$4,000) or Php400,000 (about US$8,000) in
Metro Manila, then the Regional Trial Court has exclusive original jurisdiction. If the gross value is
less than the above amounts, then the Metropolitan Trial Court, Municipal Trial Court or Municipal
Trial Circuit Court has jurisdiction. The Rules of Court (specifically the Rules on Settlement of Estate
of Deceased Persons) govern the procedures to be followed.
Alternatively, under the Rules of Court, an estate may be devolved through extrajudicial settlement,
by mutual agreement among the heirs. This method requires that the deceased left no will and no
debts, and that all the heirs are of legal age (although minors can be represented by judicial or legal
representatives). The heirs simply divide the estate among themselves as they see fit, by means of a
public instrument, and this document is thereafter filed with the Philippine Register of Deeds. A sole
heir may adjudicate to him/herself an entire estate by means of an affidavit filed in the Philippine
Register of Deeds.
Depending on the size of the estate, the intricacy of the issues, and the parties involved, court
proceedings for the settlement of estates in Philippines can run for a minimum period of six months
to a maximum of several years.
Philippine law stipulates a reserved portion for compulsory heirs

Certain parts of the estate of a deceased Filipino citizen cannot be freely disposed of because
Philippines law reserves them for the compulsory heirs. The same reservation does not necessarily
apply to foreigners who are governed by their national inheritance laws. However if the Philippines
court accepts a renvoi, then the reserved portions, reserves or legitimes established in Philippine
law become applicable to foreigners.

The compulsory heirs are classified as:

Primary - legitimate children and/or descendants

Secondary - legitimate parents and/or ascendants; illegitimate parents

Concurring - surviving spouse; illegitimate children and/or descendants

Primary compulsory heirs are preferred over secondary heirs, who receive only in default of the
primary. Concurring compulsory heirs generally succeed as compulsory heirs, together with
primary or secondary heirs.
Depending on the surviving heirs called to the succession, the law reserves at least one half of the
deceaseds hereditary estate for distribution to the heirs. The hereditary estate is the difference
between the assets and the liabilities of the deceased. If a property is conjugally-owned by spouses,
or co-owned by several parties, then only that portion of the property belonging to the deceased
forms part of the hereditary estate.
The Philippine Civil Code regarding reserves or legitimes provides that

One legitimate child is entitled to of the hereditary estate. Two or more legitimate
children are entitled to distribute of the hereditary estate equally among
themselves.

The surviving spouse is entitled to of the hereditary estate if there is only one
legitimate child. With 2 or more legitimate children, the surviving spouse is entitled
to a portion equal to the legitime of a legitimate child. The legitime of the surviving
spouse is taken from the free portion of the hereditary estate.

The legitime of illegitimate children are taken from the free portion of the hereditary
estate, provided that they do not exceed the free portion. The Family Code of the
Philippines provides that the legitime of each illegitimate child consists of of that
of a legitimate child.

In the absence of legitimate children and descendants, the legitime of legitimate

parents or ascendants consists of of the hereditary estate of their children and
descendants. The testator may freely dispose of the other half, subject to the rights of
illegitimate children and the surviving spouse.

For example, if a decedent is survived by his wife and four legitimate children, of his hereditary
estate is reserved equally between the children (1/8 each) whilst the wife takes the same share as one
legitimate child i.e. 1/8. This leaves 3/8 of the estate which can be freely disposed of in accordance
with his will.
The free portion of a hereditary estate can be freely willed to any person or class of person with the
capacity to succeed under the Civil Code, even if that person is already a compulsory heir, with a
prescribed legitime.

There may be instances where no free portion is left to distribute. For example, if there is one
legitimate child, a surviving spouse and two illegitimate children, the legitimate child gets of the
hereditary estate, the surviving spouse gets and the two legitimate children share equally the
remaining portion, so there is no free portion.

Foreign wills are allowed in the Philippines

The will of a foreigner that is proven and allowed in a foreign country, in accordance with the laws of
that country, may be allowed, filed and recorded by the Philippine courts. A copy of the will and the
decree of allowance issued by the proper authorities in the foreign country, must be duly
authenticated, and filed with a petition for allowance before the Philippine courts. The due execution
of the will and the testamentary capacity of the decedent need not be proven again. After hearing, the
Philippine court decides whether the will may be allowed in the Philippines.
Foreigners can make a local will

High income or upper middle class Filipinos are most likely to make a will, but those in the low
income classes are unlikely to do so. Executing a will requires the heirs to go through the tedious
process of probate proceedings, and rules out extrajudicial settlement of the estate. In some
instances, as a form of estate planning, families establish close corporations or holding
companies to hold and manage properties of the family to ensure continued development and
expansion of family properties without being bogged down by succession or estate issues.
If a foreigner decides to make a notarial will in the Philippines, his/her presence in the Philippines is
required. The prerequisite formalities for a notarial will are:

The will must be signed at the end thereof by the testator himself;

It must be attested to by three or more credible witnesses in the presence of the

testator and of each other;

Each and every page except the last must be signed on the left margin by the testator
and his witnesses in the presence of each other;

Each and every page of the will must be numbered correlatively in letters placed on
the upper part of each page;

It must contain an attestation clause (in a specified form) and signed by the
witnesses; and,

It must be acknowledged before a notary public by the testator and the witnesses.

In the case of a holographic will, Philippine law only requires that it is entirely handwritten, signed
and dated by the maker.
Private land in Philippines cannot be bequeathed to a foreigner.

If a foreign decedent owns private land in the Philippines, then current Philippine law considers as
void any provision in the foreigners will bequeathing the land to another foreigner. This is due to the
Philippine law which limits ownership of private land in the Philippines to the following:

Filipino citizens;

Corporations or associations - at least 60% of the capital must be owned by Filipino

citizens;

Natural-born Filipino citizens who have lost their Philippine citizenship, subject to
certain limitations;

Non-Filipino citizens, who can inherit land by hereditary or intestate succession

(without a will) but not by testamentary succession (with a will).

Although ownership of private land in the Philippines is currently subject to the above nationality
restrictions, foreigners are at liberty to buy condominium units, and most condominium projects in
the Philippines are structured so that that foreigners can own such units; consequently
condominiums may be inherited by foreigners through testamentary or intestate succession.
There is a possibility that foreign ownership restrictions in the Philippines may be removed in the
future if the Constitution is changed, which is the controversial plan of the administration of
President Gloria Macapagal-Arroyo.
In the absence of a will, Philippine law designates intestate heirs.

The order of hereditary or intestate succession, if the deceased was a legitimate child, is as follows:

Legitimate children or descendants;

Legitimate parents or ascendants;

Illegitimate children or descendants;

Surviving spouse;

Brothers and sisters, nephews and nieces;

Other collateral relatives within the fifth degree; and,

The State.

The order of hereditary or intestate succession, if the deceased was an illegitimate child, is as follows:

Legitimate children or descendants;

Illegitimate children or descendants;

Illegitimate parents (other ascendants are excluded);

Surviving spouse;

Brothers and sisters, nephews and nieces; and,

The State.

The surviving spouse and the illegitimate children or descendants of the deceased are considered as
concurring compulsory heirs and they succeed, as a general rule, together with the primary or
secondary heirs.
Gifts during the lifetime of the owner are advances from the inheritance

Philippine law considers all property given during the lifetime of the deceased as advances from
his/her estate. Thus, any property which the deceased gave or donated to other persons before death
must be returned to his/her estate. This is known as collation. The actual gifts are not brought to
collation, but only their value at the time they were given.

The purpose of collation is to estimate the value of the legitime of compulsory heirs and the amount
of the free portion. Philippine rules of evidence apply, so that testimonial or documentary proof of
the value of each gift must be presented to the court. There is no limit, in time or size, to the gifts
considered. Even if the gifts were made before the compulsory heirs were born, they are collated.
However, in practice, it is difficult to prove the value of small gifts, and gifts made a long time ago

may be forgotten. Normally, collation only includes real estate (i.e. land, buildings, condominium
units, apartments) and valuable personal possessions (e.g. jewelry, cars, stocks, shares, club
memberships) for which documentary proof or evidence can be presented to the court.
The values of gifts to compulsory heirs are chargeable against (i.e. deducted from) their legitime,
except if the donor has expressed that collation shall not take place which means that the values of
the gifts are deducted from the free portion. Gifts to persons who are not compulsory heirs are
always chargeable against the free portion. If the total value of the gifts exceeds the free portion, then
they are considered inofficious, in which case, the excess must be returned to the compulsory heirs.
The law contemplates the return of property of the same nature, class and quality, as far as possible.
Ownership of real estate in the Philippines is determined by the Torrens title.

One of the cardinal principles in the Philippines is the indefeasibility of the Torrens Title to
determine the ownership of real property. The registered owner indicated on the Torrens Title, and
the incidents annotated therein, generally defeat any other claim, or claimant, not so registered. The
Torrens Title system is quite reliable and has been used effectively to defeat the claims of some
unscrupulous Filipinos who attempt to acquire other peoples real estate in the Philippines by means
of spurious or fake titles. A foreigner who purchases or inherits real property in the Philippines is
therefore strongly advised to avoid such problems by procuring the services of a local lawyer to
ensure that his/her name is registered as the legal owner on the Torrens Title.

Donations by Reason of
Marriage
Title IV, Chapter 2 of the 1987 Family Code is about the Donations by
Reason of Marriage.
Art. 82. 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. 83. 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. 84. 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.
Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills.

Art. 85. 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. 86. 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.
Art. 87. 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.

eirs and inheritance (Part 8): Do inherited properties belong

exclusively to the spouse who inherited them or to both
spouses?
Answer: It depends on what system of property relations governs the spouses, whether absolute
community of property (ACP), conjugal partnership of gains (CPG), or complete separation of
property.
For Filipinos who got married after August 3, 1988 (the date the Family Code of the Philippines
became effective), their system is most probably absolute community of property. Why? Because
most Filipinos get married without knowing that they can choose their system of property relations.

Under the system of absolute community of property, all properties belonging to the man and
woman, at the time of the celebration of their marriage, automatically become part of their
community property (seeArticle 91 of the Family Code ). All properties acquired during their marriage
are also community property, with certain exceptions underArticle 92 .
So, assuming that the system of property relations between you and your spouse is absolute
community of property (ACP):

If

then

(1) you inherited

the
propertybefore the
marriage

it is part of the community property,

even if:

(2) you inherited

the
propertyduring the
marriage

the title to the property still

remains in the name of the
person from whom you
inherited the property;

the title to the property has

been transferred to your
name; or

the property remains titled in

your name all throughout
your marriage.

it is not part of the community

property since it was acquired by
gratuitous title as provided
under Article 92 of the Family Code ;
the exception is when the testator
(the person who gave you the
property through a last will)
expressly provided that it will be
community property.

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

Articles 88 up to 104 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 shall commence 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 same shall appear in a public instrument and shall 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
shall 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 shall form part of the community property;
(2) Property for personal and exclusive use of either spouse. However, jewelry shall 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 shall the ACP be liable for?

Art. 94 provides that the absolute community of property shall be 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 debtorspouse, 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 shall be 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, shall be borne by the loser and shall
not be charged to the community but any winnings therefrom shall 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 shall belong to
both spouses jointly. In case of disagreement, the husband's decision shall prevail, 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 shall be void. However, the transaction shall 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) and63, 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 thesettlement 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.

COMMON-LAW MARRIAGE (LIVE-IN RELATIONSHIPS)

IN THE PHILIPPINES
By: Atty.Fred | November 4, 2006 in Family Law
47 Replies | Related posts at the bottom of article

Money is [one of] the root[s] of all kinds of relationship problems, says an article at the Family
Relationships site. In my modest years of law practice, I can say that among the most bitter
confrontations (in and out of court) relate to property/money/inheritance issues between members of
the family.
Under the Family Code of the Philippines, property matters between the husband and wife are set
forth in relative detail, e.g., the forms and requisites of a marriage settlement or ante-nuptial
agreement, donations by reason of marriage, the default property regime of absolute community of
property (vis-a-vis separation of property, and conjugal partnership of gains), support for the spouse
and the children, and the effects of legal separation and annulment of marriage on the spouses
properties. Im still trying to decide if I should further discuss any of these topics (also, the rules on
succession/inheritance are treated in other laws/issuances, and may be discussed separately in
other entries).
For this entry, allow me to focus on something that appears to be increasingly common nowadays
the live-in relationship, also called common-law marriage. This is governed by Article 147 of
the Family Code , which reads:
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them
in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the
other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the
formers efforts consisted in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property
acquired during cohabitation and owned in common, without the consent of the other, until after the
termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in
the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver
by any or all of the common children or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.
The Family Code (Art. 147) recognizes, and expressly governs the property relations in, the
relationship where a man and a woman live exclusively with each other just like a husband and wife,
but without the benefit of marriage (or when the marriage is void). It is required, however, that both
must be capacitated, or has no legal impediment, to marry each other (for instance, couples under a
live-in relationship will not be covered under this provision if one or both has a prior existing
marriage). In this situation, property acquired by both spouses through their work and industry shall
be governed by the rules on equal co-ownership. Any property acquired during the union is
presumed to have been obtained through their joint efforts. As to the homemaker, or the one who
cared for and maintained the family household, he/she is still considered to have jointly contributed to
the acquisition of a property, even if he/she did not directly participate in the propertys acquisition.
How about if one or both partners are not capacitated to marry, as when one (or both) has an
existing or prior marriage which has not been annulled/declared void? This is covered under Art. 148
of the Family Code , which reads:
Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired
by both of the parties through their actual joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective contributions. In the absence of proof to
the contrary, their contributions and corresponding shares are presumed to be equal. The same rule
and presumption shall apply to joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to
the absolute community or conjugal partnership existing in such valid marriage. If the party who
acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided
in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
In other words, under Art. 148, only the properties acquired through their ACTUAL JOINT
contribution of money, property or industry shall be owned by them in common (in proportion to their
actual contributions). There is no presumption that properties were acquired through the partners
joint effort. Please also note that if one has a prior marriage, his/her share shall be forfeited in favor

of that previous marriage (as an aside, the children under the second relationship shall be
considered as illegitimate).
So, as previously stated in this Forum, put your (first) house in order first. No need to rush; love is
patient. It can wait. (Citations and more discussions at Wiki.LawCenter.ph )
MANILA, Philippines - Lovers are supposed to share "one body, one heart, one soul"
and whatever wealth they acquire before getting married. Some lawmakers,
however, seem to believe in sharing only the body, the heart and the soul not the
wealth.
At the House of Representatives, lawmakers are preparing a measure that would
dissolve a law that mandates a husband or a wife to share his or her wealth to his or
her partner. The proposed measure would allow a spouse to keep what he or she
reaped before saying "I do."
House Bill 2420 or the Act Amending Article 75 of the Family Code of the Philippines
was passed unnoticed, like most measures changing the names of streets and schools.
On February 5, 2008, the day before the ouster of Jose de Venecia Jr as Speaker,
lawmakers passed the measure. "We had two to three committee hearings before it was
approved, and nobody opposed its passage," said Cebu Representative Pablo Garcia,
the bill's author.
HB 2420 was a two-page, seemingly harmless, proposal. "We're just going back to our
tradition on property relations in marriage," Garcia said.
The lawmaker proposed to revert to the "conjugal partnership of gains" system that
ruled the lives of married couples before 1988. Under the set-up, a spouse has no right
over the property that his or her partner obtained prior to the wedding. He or she is
only entitled to the assets that his or her partner acquired since the start of the
marriage.
For example, if Juan inherited a 100-hectare land from his parents before getting
married to Maria, Maria would have no right over Juan's landholding. If Maria bought a
car or a house before getting married to Juan, Juan would have no right over these,
too.
The set-up was changed to the "system of absolute community of property relations in
marriage" when the Family Code took effect on August 3, 1988. The "rule on absolute
community" entitles the spouse to equal rights over the property acquired by the
husband or the wife before and during the marriage.

Former Chief Justice Artemio Panganiban described the "absolute community regime"
as the "marital ring" of legal sharing.
Panganiban, in a newspaper article, said: "Unless prior to the wedding the parties
enter into a written marriage settlement, the absolute community regime takes effect
immediately, even if the titles to the assets are registered in the name of one spouse
only."
"Accordingly, land, condominiums, cars, computers, and jewelry of each of the spouses
automatically become communal...Neither spouse may sell, mortgage, or give away any
communal asset without the consent of the other," he added.
Garcia, however, said the absolute community regime defies "the long accepted system
of conjugal partnership of gains."
Prior to the Family Code, a spouse had no right over the property that his or her partner
acquired before marriage. The Spanish Civil Code, which was enforced from 1889 to
1950, and the new Civil Code, which was in effect from 1950 to 1986, both mandated
the conjugal partnership of gains.
Garcia also said he favors the retention of a spouse's exclusive rights because it is
consistent with the law of succession.
"When property is inherited from a descendant, that asset is reserved for the family of
the propertied spouse," the lawmaker said. "Under the absolute community rule, the
property line between a child and his or her parents is cut once that child marries," he
added.
Removing the spouse's right over the property that his or her partner acquired before
marriage is allowed through a prenuptial agreement. But Garcia said it is still "not
acceptable" for most Filipinos.

Garcia filed the bill on September 4. It was referred to the House Committee on
Revision of Laws on September 17. Garcia heads the committee. On December 18, HB
2420 was approved on second reading. On February 5, the House passed the bill on
third and final reading. On February 11, the proposed legislation was transmitted to the
Senate.
HB 2420, a measure that could affect the lives of 26.1 million married Filipinos, was
passed and approved without a noise, except that which came from a retired judge.

Divorce Magazine.com listed countries where percentage of divorce is high.

Sweden
Belarus

54.9%
52.9%

Finland -

51.2%

Luxembourg

47.4%

Estonia

46.7%

Australia

46%

United States

45.8%

Denmark

44.5%

Belgium

44%

Austria

43.4%

Czech Republic

43.3%

Russia

43.3%

United Kingdom

42.6%

Norway

40.4%

Ukraine

40%

Jesus Quitain, former judge of the Regional Trial Court in Davao City, warned that the
measure would be against the interest of women. He posits that in a situation that a
wife is less propertied compared to a wealthy, womanizing, wife-beating, drunkard
husband, the woman would be at the losing end in case the marriage is annulled or the
couple separate.
The former judge said Article 75 of the Family Code is a triumph for wives, because the
law had somehow discouraged husbands to fool around.

"With this law, the wealthy spouse, usually a spoiled husband, might be stopped from
having mistresses, gambling, drugs, and the like, although he can afford it. This is
because when the wife files a case and there is a division of assets, the wealthy spoiled
spouse responsible for the breakup will lose part of the property he owned before
marriage," he said.
Too simplistic
A professor of Family Laws at the Manuel L. Quezon University said tradition cannot be
used as basis for legislation, especially if it no longer mirrors the present makeup and
needs of society.
Lawyer Florisa Almodiel said using tradition as basis for crafting HB 2420 "is too
simplistic."
She said: "We can't use the argument that we should go back to conjugal partnership of
gains just because this was the practice since the Spanish time."
"Power relations between couples have already evolved. Yesterday's groom and bride
are no longer today's husband and wife," said Almodiel.
She said questions like "What is the present makeup of families? Who is the more
economically-empowered or the more-disadvantaged spouse? What is the economic
impact of marriage dissolution on the wife, on the husband, and on their children? Who
will gain and who will lose if property relation reverts back to conjugal partnership of
gains?" must be considered.
Almodiel said that while Quitain's stereotyping of wives and husbands could explain
inequity, it is inadequate to gauge the likely impact of changes in property relations of
couples who do not fall under the rich husband-poor wife partnership.
"It only applies to one kind of situation. There are many other scenarios," she said. She
cited cases when a wife is the hardworking and propertied spouse, and the husband is
the bum or philanderer or both. "Would it be fair if the erring husband gets an equal
share of the properties that were single-handedly raised by the wife?"
There are also cases when a wife's contribution to the family's resources is
undervalued, if not deemed unimportant because its constitutes unpaid labor.
"She does not earn and may not have her own property. But childbearing and
homemaking cooking, washing clothes and dishes, cleaning the house, raising
children are part of her chores. The economic value of the wife's multiple roles in the
household must be recognized and included in the equation on proposed changes in

marital property relations," said Almodiel.

While there might be a need to amend the Family Code, lawmakers must first get into
the heart of the problem on marital power relations, according to Almodiel.
"Issues on property relations in marriage shouldn't just be limited to a debate on
whether we should retain absolute community or go back to conjugal partnership of
gains," she said, adding that it may not even be the real issue that must be addressed.
"Laws solve conflicts. But we should know first what are the conflicts before we address
them through laws," she said.
THE INVISIBLE WOMEN
You see them work hard, but you don't know the real worth of their labor. Feminist theorists call them invisible women those
whose fruits of labor are unpaid and excluded from the computation of a country's gross domestic product and gross national
product.
Feminist economist Marilyn Waring of New Zealand criticized the use of GNP and GDP as economic indicators, which were
institutionalized through the UN System of National Accounts.
She said the GNP and the GDP excluded women's work (other unpaid work and things that have only use-value and not
exchange value) in measures of economic progress.
The UN Platform for Action Committee Monitoba gives examples on how the UNSNA unfairly values work, activities, and
resources:
Things of economic value:Women's bodies when used in media advertising; trees that are cut down; the tobacco industry;
arms and missile production; the weight loss industry; crime, the court system, and imprisonment; prostitution; illness, clinics,
and hospitals; death and the funeral business; rebuilding countries after natural disasters or terrorist attacks; war; and oil spills.
Things without economic value: A mother's contribution to the birthing process; caring for own children; doing own dishes and
laundry; hunting, vegetables grown in own garden and eaten by family; hunting, fishing, and trapping own food; beauty (except if
it's for sale in an art piece); health; rivers and forests (when they're not being harnessed for economic gain).
In a study presented in the December 2007 Global Forum on Gender Statistics in Italy, the National Statistical Coordination
Board (NSCB) said unpaid work adds 66.2 percent in the Philippines' GDP. It also said that 59.6 percent of the total hours of
unpaid work are done by women.
In another study, NSCB secretary general Romulo A. Virola cited results of time-use surveys from 1979 to 2000 showing that
"women's unpaid housework is greater than (that of) men."
In the 1979 time-use survey, it was found out that single women performed unpaid work of 3.04 hours per day or almost twice as

long as the unpaid 1.71 hours done by their male counterparts.

The 1979 survey said married women were in a "more disparate" situation. Their daily unpaid work of 7.93 hours was thrice as
much as the 2.63 hours of unpaid work by their male counterparts.
The gap in unpaid work between women and men became wider in the 1985 to 1990 survey. Women's unpaid work of 6.57
hours per day was almost four times longer than men's 1.87 hours.
Virola said there was an "observed improvement" in the 2000 survey "when the ratio of unpaid work of women to men went
below two hours." - ARCS, GMANews.TV

Economic impact
Even in advanced economies, power relations are heavily tilted toward men. Major
studies show that in these countries, dissolution of marriage often results in the
economic deprivation of wives, and the improved economic status of husbands.
Sociologists Saul Hoffman and Greg Duncan concluded in their 1988 study that in the
US, the standard of living of the custodial mother and her children were reduced by 30
percent on the average, while that of the noncustodial father increased to about 15
percent.
In another study in 1994, American scholars Jay Teachman and Kathleen Paasch
pointed out that even when employment rates among custodial mothers increased after
divorce - from 58 to more than 70 percent - this did not necessarily improve their
economic status.
The study shows that while the divorced wife's "first response to economic stress" was
to enter into the labor force, the average amount she earns, which comprises 60
percent of the single-parent family income, "declined from immediately before to
immediately after (marriage) disruption."
Teachman and Paasch attributed the decline to either low-paying or "less than full-time"
jobs available to divorced wives.
In 2005, sociologists Dorien Manting and Anne Marthe Bouman of The Netherlands said
the result of their study on the economic impact of marriage dissolution on Dutch
women was "consistent" with the findings in other countries such as the US, Great
Britain, Germany and Canada.
They said "women experience a large financial setback, whereas men even seem to
gain financially from divorce."

Manting and Bouman said that while more Dutch women joined the labor force after
marriage dissolution, "this does not really mean that (they) gain enough to become
economically independent of their spouses."
Why not? Because according to the study, most of these women, who are responsible
for taking care of children, could only work part-time. And even when they work full
time, they get paid less than men. - See more at:
http://www.gmanetwork.com/news/story/87414/news/specialreports/family-code-amendmentpassed-in-silence-may-disadvantage-women#sthash.OAqzkkiC.dpuf

We previously noted that we are breaking down the discussion on the property relations of the
spouses during marriage, as follows: (1) Prenuptial agreements and introduction to property relations
between husband and wife; (2) The system of absolute community; (3) Conjugal partnership of
gains; (4) Complete separation of property; (5) Donations by reason of marriage; and (6)
Comparison of the various types of property relations between spouses. This post is Part 2.
What is the system of absolute community?
This is one of the regimes or systems of property relations between the spouses and the default
system in the absence of a prenuptial agreement or when the agreed system is null and void. This
system commences at the precise moment that the marriage is celebrated, and any stipulation for
the commencement of the community regime at any other time is void.
In a nutshell, the husband and the wife are considered as co-owners of all properties they bring into
the marriage (those that they owned before the marriage), as well as the properties acquired during
the marriage, except for certain properties express excluded by law (listed below). The rules on coownership applies in all matters not provided under the Family Code.
What constitutes community property?
Unless otherwise provided by law or in the marriage settlements, the community property shall
consist of all the property owned by the spouses at the time of the celebration of the marriage or
acquired thereafter. Property acquired during the marriage is PRESUMED to belong to the
community, unless it is proved that it is one of those excluded therefrom.
What properties are excluded from the community property?
(1) Property acquired during the marriage by gratuitous title (by donation and by testate/intestate
succession) 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 shall form part of the community
property;

(2) Property for personal and exclusive use of either spouse. However, jewelry shall 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.
Can a spouse waive his/her share in the community property during marriage?
No. Except in case of judicial separation of property, any waiver of rights, shares and effects of the
absolute community of property during the marriage can be made.
What are the charges and obligations of the absolute community?
The absolute community of property shall be 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 the Family
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 (debts contracted before the marriage) 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 No. 7 above, 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 debtorspouse 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 shall be solidarily liable for the unpaid balance with their separate
properties.
If a spouse incurs gambling loses in a casino, can he/she charge the amount to the
community

property?

No. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any
other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall
not be charged to the community but any winnings therefrom shall form part of the community
property.
Who administers and enjoys the community property?
Both spouses jointly enjoy the administration and enjoyment of the community property. In case of
disagreement, however, the husbands decision shall prevail, 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 shall be void. However, the transaction shall 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.
What is the rule on disposition of properties of the spouses?
Either spouse may dispose by will of his or her interest in the community property. This is possible
because the will takes effect only upon the death. However, 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.
When is the absolute community terminated?
(1)
(2)
(3)

Upon

the

When
When

there
the

death
is

marriage

a
is

of

either

decree
annulled

of
or

legal
declared

spouse;
separation;
void;

or

(4) In case of judicial separation of property during the marriage.

What happens if the spouses separate in fact?
The separation in fact or separation de facto (as opposed to legal separation), 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 latters share.
Is separation de facto different from abandonment?
Yes. In a separation de facto, the spouses may still be complying with their duty to support each
other and their children. The rule in case of abandonment is provided below.
What if a spouse abandons the other?
If a spouse without just cause abandons the other or fails to comply with his or her obligations to the
family (obligations to the family refer to marital, parental or property relations), 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.
A spouse is deemed to have abandoned the other when her 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 after the dissolution of the absolute community regime?
(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 of
the Family Code.
(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 the Family 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 of the Family Code.
(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 in no such majority,
the court shall decide, taking into consideration the best interests of said children.
If a spouse dies, how is the community property liquidated?
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.
What happens if the foregoing procedure in the immediately preceding paragraph is not
carried out?

If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or encumbrance
involving community property by the surviving spouse shall be void; and (b) any subsequent
marriage shall be governed by the mandatory regime of complete separation of property.

WHAT IS ABSOLUTE COMMUNITY OF PROPERTY IN PHILIPPINE FAMILY LAW

The system of Absolute Community of property is a system of property relation that treats
properties acquired by the spouses during their marriage as jointly-owned. It consists of all the
properties owned by the spouses at the time of the celebration of the marriage or acquired
thereafter unless the property involved is expressly excluded by an existing marriage settlement
or by the provisions of the Philippine Family Law.
The System of Absolute Community of property is considered as the default property regime of
the spouses. In the absence of a marriage settlement or if one is considered void, the law itself
prescribes such as the operative property system within the marriage. Under the Family Code,
the system of Absolute Community of property commences at the precise moment the marriage
is celebrated and any stipulation allowing for the commencement of such system at a later time
shall be considered as void. The rules governing co-ownership shall apply in all matters not
provided for in the Family Code.
In order to protect third persons such as creditors, the law prohibits a spouse from making a
waiver of interest over his or her share in the community property except in the case of judicial
separation of property. In the event that a judicial separation of property occurs or when the
marriage is dissolved or annulled, any waiver must appear in a public instrument and shall be
registered in the local civil registry where the marriage contract is recorded as well in the proper
registries of property.
The Absolute Community of property encompasses all the properties each spouse owns at the
time of the marriage and thereafter. Certain properties however are excluded as determined by
Philippine Family Law. These properties are as follows:
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 shall form part of the community property;
Property for personal and exclusive use of either spouse. However, jewelry shall form part of the
community property;
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.
Notice should be taken that the law presumes a property acquired during marriage as part of the
community unless it can be proved that such property is one of those excluded.

As a rule, the absolute community of property shall answer for the following charges and debts:
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;
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;
Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have been benefited;
All taxes, liens, charges and expenses, including major or minor repairs, upon the community
property;
All taxes and expenses for mere preservation made during marriage upon the separate property
of either spouse used by the family;
Expenses to enable either spouse to commence or complete a professional or vocational
course, or other activity for self-improvement;
Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;
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;
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
Expenses of litigation between the spouses unless the suit is found to be groundless.
In the event that the community property is not sufficient to cover all such claims, the spouses
shall be solidarily liable for the unpaid balance with their separate properties except for those
debts falling under paragraph (9).
Both spouses shall possess joint administration and enjoyment of the community property. In
case of disagreement, the husbands decision shall prevail subject to proper recourse by the
wife to the courts for proper remedy. This action on the part of the latter must be commenced
within 5 years from the date of the contract implementing such. One of the spouses may
assume sole administration and exercise powers of administration if the other spouse is
incapacitated or is unable to participate in the administration of the property. Such power does
not confer to the administrator the authority to dispose or encumber the properties administered
unless allowed to by the court or consented to by the other spouse. In the absence of such
consent, the disposition or encumbrance shall be considered void but the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the third party that
may still be perfected upon the acceptance by the other spouse or upon authorization of the

court. Neither spouse may donate any community property without the consent of the other
except in the case of moderate donations for charity or on occasion of family rejoicing or family
distress.
As stated in the Philippine Family Law, the absolute community is terminated upon the
happening of the following:
Upon the death of either spouse;
When there is a decree of legal separation;
When the marriage is annulled or declared void; or
In case of judicial separation of property during the marriage
In case the community property is dissolved, the following procedure shall take place. First, an
inventory shall be made listing separately the properties that are included and excluded from the
community property. Second, the debts and obligations of the absolute community shall be paid
out of its assets. Third, whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them. Fourth, the net assets shall be divided equally between
husband and wife unless a different proportion or division was agreed upon in the marriage
settlements or if there has been a voluntary waiver of such share as provided under the law.
Fifth, the presumptive legitimes of the common children shall be delivered. Sixth, 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 unless otherwise agreed upon by the parties.
Children below the age of seven years are deemed to have chosen the mother, unless the court
has otherwise decided.
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 no liquidation is made upon the lapse of the six months period, any
disposition or encumbrance involving the community property of the previous marriage shall be
void. Should the surviving spouse contract a subsequent marriage without compliance with the
previous requirements, a mandatory regime of complete separation of property shall be imposed
upon the property relations of the subsequent marriage.

Should there be no distinction between

legitimate and illegitimate children?
A news item from the Philippine Star reveals that House Bill 2355 was filed by Albay 2nd District
Rep. Al Francis Bichara which seeks to treat legitimate and illegitimate children as co-equal.The
last portion of the report cites Congressman Bichara as saying that aside from being marginalized
as a result of this unwarranted label, children born out of marriage have limited rights and
privileges especially with respect to successional rights.

Presently, the intestate share and legitime of an illegitimate child is one half of that of a legitimate
child, and there is a barrier of intestate succession under Article 992 of the Civil Code between
illegitimate children and the legitimate relatives of his/her parent.
In relation to the proposed amendment, it is best to remember that the distinction between
legitimate and illegitimate children do not only deal with successional rights there are other
distinctions found in Philippine law between legitimate and illegitimate children. Some of these
distinctions include:
1. Which parent exercises parental authority over the child default parental authority over an
illegitimate child resides only in the mother under Article 176 of the Family Code as amended by RA
9255 even if the child is recognized by the father, while default parental authority over legitimate
children reside in both parents under Article 211 of the Family Code.
2. Questions over whether the conjugal partnership or absolute community should be liable for the
amount of support a parent gives to his/her illegitimate child under Articles 94(9) and 122 3rd
paragraph of the Family Code , conjugal partnership / absolute community property are only
secondarily liable for the support of illegitimate children since primary responsibility falls on the
parents exclusive property; on the other hand, support of legitimate children are a primary liability
of the conjugal partnership of gains and absolute community of property under Articles 94(1) and
Art 121(1) of the Family Code.
3. The use of the fathers name as surname the legitimate child is obligated to use the fathers
surname since Article 174 of the Family Code says that the legitimate child shall have the right [t]o
bear the surnames of the father and the mother, in conformity with the provisions of the Civil
Code on Surnames and Article 364 of the Civil Code uses the mandatory word shall in stating that
[l]egitimate and legitimated children shall principally use the surname of the father; on the other
hand, recognized illegitimate children under Article 176 of the Family Code as amended by RA
9255 may choose to use or not to use their fathers surname since Article 176 of the Family
Code says that illegitimate children may use the surname of their father if their filiation has been
expressly recognized.
4. The prohibition of certain marriages under Article 38(7) of the Family Code , a marriage
between an adopted child and a legitimate child of the adopter is void as against public policy, while
there is no such prohibition between a marriage between an adopted child and an illegitimate child
of the adopter, Article 38(7) of the Family Code being an express statutory exception to the general
rule is that [t]he relationship created by the adoption is between only the adopting parents and the
adopted child and does not extend to the blood relatives of either party: see Sayson vs CA (G.R.
Nos. 89224-25, 23 January 1992).

5. The requirement of consent of the adopters children to the adoption under Section 9 of RA
8552 the adopters legitimate children ten years of age or over must give their consent to the
adoption but the consent of the adopters illegitimate children of the same age is necessary only if the
illegitimate children are living with said adopter and the latters spouse.
6. The use of a middle name An unrecognized illegitimate child may be unjustly discriminated in
school because his or her name does not contain a middle name. In Wang vs Cebu City Civil
Registrar (G.R. No. 159966. March 30, 2005) it was stated that
[A]n illegitimate child whose filiation is not recognized by the father bears only a given name and his
mothers 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 mothers surname as his middle name and his fathers
surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate
child.
In the same case of Wang it was stated that [t]he Family Code gives legitimate children the right
to bear the surnames of the father and the mother.
7. Proof of filiation A legitimate child is one who is born or conceived during the parents marriage;
once operative facts are proven to give rise to the presumption of legitimacy (one operative fact being
that the child is born or conceived of the wife during the marriage), then the presumption of
legitimacy arises without need of any other proof. Illegitimacy requires either a voluntary recognition
(under the first paragraph of Article 172 of the Family Code , it is a voluntary recognition found in a
record of birth, public document or a private handwritten instrument and signed by the parent
concerned), or a compulsory recognition through a court judgment (requiring proof under the 2nd
paragraph of Article 172 of the Family Code [t]he open and continuous possession of the status of
a legitimate child and [a]ny other means allowed by the Rules of Court and special laws).

Atty. Alex Andrew P. Icao

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filiation, Distinction between legitimate and illegitimate children, Paternity & Filiation, Property
relations, Uncategorized, use of surname or middle name
JULY 10, 2013 4:20 PM

Recent case creates loophole in

constitutional prohibition against aliens to
own land
Can alien spouses skirt the constitutional prohibition against aliens to own land?
The recent case of Matthews vs Benjamin & Joselyn Taylor (GR 164584, 22 June 2009), in
disregarding certain civil law principles on spouse property relations for the ostensible purpose of
upholding the constitutional prohibition, may have inadvertently created a loophole, in situations
where the land is titled in the name of a third person, by preventing the application of civil law
principles aimed at clawing the land back into the spouses property regime.
The constitution contains an express prohibition for aliens to own lands of the public domain: s 7 Art
XII 1987 Consti (Section 7. Save in cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or associations qualified to acquire or
hold lands of the public domain.). By interpretation, this prohibition has been extended to the
ownership of private land: see eg, Muller vs Muller (G.R. No. 149615, August 29, 2006) & Krivenko
vs Register of Deeds (79 Phil. 461 (1947)). The constitutional prohibition only applies to land, not
improvements over land: Beumer vs Amores(GR 195670, December 3, 2012).
The property relations of the spouses is now governed by the system of absolute community, in the
absence of any stipulation in a marriage settlement executed before the marriage. Normally, if the
spouses are both Filipinos, all property that the spouses acquire during their marriage are
considered absolute community property, with the exception of certain property enumerated under
Article 92 of the Family Code, which the law considers as a spouses exclusive property. Normally, if
the spouses are both Filipinos, even if land is acquired during the marriage using exclusive funds
belonging to a spouse, the law considers the property acquired as absolute community property, due
to the absence of a general right of replacement in the system of absolute community. A right of
replacement (also known as as acquisition by substitution [Amelia G. de Castro,1952 Survey of Civil
Law in the Philippines, PLJ Vol 28 No 2-01, p 159] or the principle of substitution or exchange of
values [Tolentino citing Bermudez vs Baltazar (C.A.) 59 O.G. 6459]), is generally unavailable in the
system of absolute community, because Article 91 of the Family Code expressly states that the
community property shall consist of all the property owned by the spouses at the time of the
celebration of the marriage or acquired thereafter. Views however, have been expressed that a right
of replacement exceptionally exists for certain exclusive property enumerated under Article 91 (see
eg, Article 91(3) which refers to [p]roperty acquired before the marriage by either spouse who has
legitimate descendants by a former marriage) due to the need to maintain the exclusive character

of these properties (or any property acquired in replacement of these properties) for reasons of
public policy.
In the case of Matthews vs Benjamin & Joselyn Taylor (GR 164584, 22 June 2009), the Supreme
Court said that the foreigner husbands written consent to lease land (registered in the name of the
wife, although funded by the husbands money) was not required. Part of the Supreme Courts
reasoning was that consent was not required on the supposition that the land was absolute or
conjugal property because
no declaration can be made that the subject property was part of the conjugal/community property
of the spouses. In any event, he had and has no capacity or personality to question the subsequent
lease of the Boracay property by his wife on the theory that in so doing, he was merely exercising the
prerogative of a husband in respect of conjugal property. To sustain such a theory would
countenance indirect controversion of the constitutional prohibition. If the property were to be
declared conjugal, this would accord the alien husband a substantial interest and right over the land,
as he would then have a decisive vote as to its transfer or disposition. This is a right that the
Constitution does not permit him to have
The seeming disregard for certain civil law principles in the Matthews case such as the right of
replacement, and the principle that all property acquired by husband or wife during marriage is
absolute community property, creates little doctrinal repercussions in cases of acquisition by spouses
of land where the vendee is the Filipino spouse, because the principle of estoppel works against the
foreigner spouses favor.
However, the tide may turn in the foreigner husbands favor if the land is titled in the name of a third
person.
If the funds come from the foreigner husbands own exclusive property, then arguably the wife will
have no cause of action to claw the land into the marriage and claim it as hers. First, the wife may not
argue that she is entitled to a right of replacement arguing that all property acquired during the
marriage is absolute community property irregardless of character of the fund source, because
clawing the land back to the absolute community, just to lay the basis for the wife to claim that the
land is her exclusive property by virtue of the constitutional prohibition is illogical. Second, the civil
law right of replacement arguably seems to irrelevant when face to face with the constitutional
prohibition against foreigners to own land (see Matthews vs Benjamin & Joselyn Taylor (GR
164584, 22 June 2009)).

If the funds come from the spouses absolute community, the problem becomes even more difficult.
The right of replacement cannot be invoked, because if it were so invoked, the land acquired would
have to be classified as absolute community property, an outcome that is not permitted by Matthews.
It may be recalled that part of the reasoning why the land cannot be considered absolute community
in Matthews is because the disposal or encumbrance of absolute community property requires the
consent of both spouses, otherwise the transaction is void under the 2 nd paragraph of Article 96 of the
Family Code. Furthermore, an implied trust may not arise with respect to the wifes one-half
inchoate share in the funds (inchoate, because a vested right only arises upon dissolution of the
absolute property regime), because to allow an implied trust to exist is to assume the fiction that the
absolute community nature of the funds was dissolved (or ceased) upon acquisition of the property
(a fiction that is prohibited under Article 134 of the Family Code, because any separation of property
of spouses during the marriage shall not take place except by judicial order).
Moreover, the chances that the Matthews decision may be used by the foreigner spouse in his favor,
is amplified when a property regime of separation of property is agreed to between the future
spouses in a marriage settlement, and the titles of land acquired using the husbands funds are not
titled in the wifes name, but rather in the names of third persons. While the anti-dummy law may
apply, there are doctrinal hindrances that prevent the wife from getting any hold of the land.
Arguably, this shows that while the constitutional provision laudably preserves Filipino patrimony
by preventing foreign ownership of land, the constitutional provision also discourages future spouses
(where one future spouse is a foreigner or an alien) from adopting the default property absolute
community property regime. Instead, the constitutional prohibition encourages future foreigner
spouses to influence their future Filipino spouse to adopt a system of separation of property

Conjugal partnership of gains

Oftentimes referred to as the CPG, the conjugal partnership of gains is one of the property relations
between the spouses, under which the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and those acquired by either or both
spouses through their efforts or by chance, and, upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage settlements. In other words, the following
are placed in a common fund: (1) the proceeds, products, fruits and income from their separate
properties; and (2) those acquired by either or both spouses through their efforts or by chance.

Applicability and commencement

General

The regime of CPG applies only when the future spouses agree to it in the marriage settlement, if
any. It also applies to conjugal partnerships of gains already established between spouses before
the effectivity of the Family Code, without prejudice to vested rights. This is the default property
relationship under the Civil Code, which was changed to that of absolute community of property
under the Family Code.
It begins at the precise moment when the marriage is celebrated, exactly like in absolute community
of property.

Applicability of rules on ordinary partnership

As a rule, rules on ordinary partnership applies, except when otherwise expressly provided in the
pertinent provisions of the Family Code or by the spouses in their marriage settlements.

Presumption regarding properties acquired during marriage

All property acquired during the marriage, whether the acquisition appears to have been made,
contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the
contrary is proved.

Waiver of share in the community property during marriage

A spouse cannot waive his/her share, except in case of judicial separation of property, any waiver of
rights, shares and effects of the absolute community of property during the marriage can be made.

Exclusive or conjugal properties?

Exclusive property of each spouse

The spouses retain the ownership, possession, administration and enjoyment of their exclusive
properties. A spouse may also mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and appear alone in court to litigate with
regard to the same.
Either spouse may, during the marriage, transfer the administration of his or her exclusive property
to the other by means of a public instrument, which shall be recorded in the registry of property of
the place the property is located. However, the alienation of any exclusive property of a spouse
administered by the other automatically terminates the administration over such property and the
proceeds of the alienation shall be turned over to the owner-spouse.

The following are the exclusive properties of each spouse:

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by gratuitous title (through pure liberality,
as in donation and testate/intestate succession);

(3) That which is acquired by right of redemption, by barter or by exchange with property
belonging to only one of the spouses; and

(4) That which is purchased with exclusive money of the wife or of the husband.

Properties belong to the conjugal partnership

(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether
the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from the common
property, as well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of
the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind
brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting. However,
losses therefrom shall be borne exclusively by the loser-spouse.

Rule in case of purchase by installment

Property bought on installments paid partly from exclusive funds of either or both spouses and partly
from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage
and to the conjugal partnership if such ownership was vested during the marriage. In either case,
any amount advanced by the partnership or by either or both spouses shall be reimbursed by the
owner or owners upon liquidation of the partnership.

Credit payable to him over time

Whenever an amount or credit payable within a period of time belongs to one of the spouses, the
sums which may be collected during the marriage in partial payments or by installments on the
principal shall be the exclusive property of the spouse. However, interests falling due during the
marriage on the principal shall belong to the conjugal partnership.

Improvements on that exclusive property

The ownership of improvements, whether for utility or adornment, made on the separate property of
the spouses at the expense of the partnership or through the acts or efforts of either or both spouses
shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following
rules:
1. When the cost of the improvement made by the conjugal partnership and any resulting increase in
value are MORE than the value of the property at the time of the improvement, the entire property of
one of the spouses shall belong to the conjugal partnership.
2. When the cost of the improvement made by the conjugal partnership and any resulting increase in
value are LESS than the value of the property at the time of the improvement, the entire property
shall remain with the owner-spouse.
3. In either case, the owner-spouse or the conjugal partnership, as the case may be, is entitled to
reimbursement for the value of the principal property or the improvement, as the case may be.
4. It doesnt matter if the improvements are for utility or adornment.

Charges upon and obligations of the conjugal properties

The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate children of either spouse;
however, the support of illegitimate children shall be governed by the provisions of the Family Code
on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the
consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal
partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon the separate
property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other
activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate
children for the exclusive purpose of commencing or completing a professional or vocational course
or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.

Personal debts contracted before or during the marriage

1. As a rule, the payment of personal debts contracted by the husband or the wife before or during
the marriage shall not be charged to the conjugal partnership properties.
2. However, these debts shall be charged to the conjugal partnership properties insofar as they
redounded to the benefit of the family.
3. If the spouse has no exclusive property, it may be charged to the conjugal partnership, subject to
the provisions below.

Fines and pecuniary indemnities imposed on each spouse

These cannot be charged to the partnership. However, the payment of personal debts contracted by
either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the
support of illegitimate children of either spouse, may be enforced against the partnership assets after
the charges/obligations enumerated in above have been covered, if the spouse who is bound should

have no exclusive property or if it should be insufficient; but at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for the purpose above-mentioned.

Winnings or losses in gambling

Any loss incurred by a spouse during the marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne
by that spouse, and shall not be charged to the conjugal partnership. Any winnings, on the other
hand, shall form part of the conjugal partnership property.

Authority to administer the conjugal partnership property

The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In
case of disagreement, the husbands decision shall prevail, 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 conjugal 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 shall be void. However, the transaction shall 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.

Donations of conjugal partnership property

As a rule, neither spouse may donate any conjugal partnership property without the consent of the
other. However, either spouse may, without the consent of the other, make moderate donations from
the conjugal partnership property for charity or on occasions of family rejoicing or family distress.

Termination and liquidation of the conjugal partnership

Termination of the conjugal partnership terminate

(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.

Effect of separation in fact or de facto separation

The separation in fact or de facto separation between the spouses has no effect on the conjugal
partnership. However, the following are the effects:
(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 conjugal partnership property, the separate property of both spouses
shall be solidarily liable for the support of the family. The spouse present shall, upon 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 latters share.

If a spouse abandons the other

If a spouse without just cause abandons the other or fails to comply with his or her obligation to the
family (referring to marital, parental or property relations), the aggrieved spouse may petition the
court for receivership, for judicial separation of property, or for authority to be the sole administrator
of the conjugal partnership property, subject to such precautionary conditions as the court may
impose.
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.

Dissolution procedure
The following procedure shall apply in the dissolution of the conjugal partnership regime:
(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership
and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of
either spouse shall be credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of
property or for the value of his or her exclusive property, the ownership of which has been vested by
law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In
case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with
their separate properties.
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each
of them.
(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of
movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event,
shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the profits, 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 or forfeiture of such
share as provided in this Family Code.
(8) The presumptive legitimes of the common children shall be delivered upon partition.
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, 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.

Liquidation upon death of spouse

Upon the termination of the marriage by death, the conjugal partnership 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 conjugal partnership property either
judicially or extra-judicially within six months from the death of the deceased spouse.

Effect of non-compliance of procedure

If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or
encumbrance involving conjugal partnership property by the surviving spouse shall be void; and (b)
any subsequent marriage shall be governed by the mandatory regime of complete separation of
property.

Support during liquidation

From the common mass of property support shall be given to the surviving spouse and to the
children during the liquidation of the inventoried property and until what belongs to them is delivered;
but from this shall be deducted that amount received for support which exceeds the fruits or rents
pertaining to them.

Heirs and inheritance (Part 7): Is property acquired before marriage the exclusive
property of each spouse or does it belong to both spouses?
Question: I got married in 2001; some people in an online forum told me that properties acquired
when I was single and titled in my name are still mine. Does my husband have any right to these
properties? What will happen to these properties when I die?
Answers:
[1] I got married in 2001; some people in an online forum told me that properties under my name
acquired when I was single are still mine.
These people are wrong.
Most Filipinos are confused as to whether properties acquired before marriage are the
exclusive property of each spouse or belong to both spouses. This confusion can be cleared
up by:

determining what date the marriage was solemnized; if it was solemnized before August 3,
1988, then the applicable law is the New Civil Code of the Philippines, not the Family Code;

determining whether the man and woman, before they got married, agreed on a system of
property relations that would govern them; if there was no agreement, then for marriages
solemnized after August 3, 1988 (date the Family Code became effective), absolute
community of property is automatically the system.

The problem is that most Filipinos get married without knowing that they can choose among
absolute community of property (ACP), conjugal partnership of gains (CPG), or complete

separation of property.
Since you got married in 2001 (and it seems there was no agreement between you and your
husband before you got married), then absolute community of property is automatically the system
between yourselves. Under Article 91 of the Family Code , upon your marriage, all properties
belonging to either you or your husband automatically became part of the community property.
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community
property shall consist of all the property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.
For example, you bought a subdivision lot while you were single. The lot is titled in your
name. At the time you got married, this lot automatically became part of the community property
between you and your husband, even if the title remains in your name all throughout your marriage.
If you are going to sell this subdivision lot, you will need your husbands conformity since it has
become community property.
Upon your death, this lot will be distributed as follows:

50% will go to your husband as his share in the community property;

50% will be divided among your heirs (if you have no children and your parents or
grandparents are dead, then your husband will get 25% while your brothers and sisters will
divide among themselves the other 25%, under Art. 1001 of the New Civil Code of the
Philippines ).

[2] When are properties acquired before marriage the exclusive property of each spouse?

Exception 1:

Exception 2:

If the man and woman before

getting married agreed that
their property relations would
be governed either
by conjugal partnership of
gains (Articles 105 to 133 of
the Family Code) or
by complete separation of
property (Article 143 to 146
of the Family Code).

If the marriage was

solemnized before August
3, 1988 (date of
effectivity of the Family
Code), then properties
acquired before marriage
are the exclusive property
of each spouse.

Article 109 enumerates what

The New Civil Code of the

Why?

the exclusive properties of

each spouse are. Paragraph
(1) expressly states that
property brought to the
marriage as his or her own
is exclusive property.

Philippines was the the

prevailing law before the
Family Code became
effective. The NCC
provided that, in the
absence of an agreement
between the future
spouses, the default
system of property
relations would be
conjugal partnership of
gains.

Spouses rights in their properties

-

AA+A

By Roberto A. Capili
Real Estate Updates
Sunday, August 18, 2013

THE property relationship between husband and wife remains a very ticklish issue because by Filipino
tradition, majority of prospective couples never consider preparing their own pre-nuptial contract or
settlement.
For many couples and as embedded in our local culture, preparing such documents may be considered
a "taboo" since the mere thought of doing so would already imply lack of trust between the
prospective couples.
Because of this, if the marriage later on turns sour, the couples are confronted with problems relating
to their properties that they may have brought into the marriage and those which are acquired after
the marriage. The pertinent provisions found in the Civil Code and the Family Code relating to
properties should serve as a tool or guide for the spouses, present and future, to be more circumspect
with the preparation and eventually the implementation and execution.
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Before the Family Code (Executive Order No. 209 as amended by Executive Order No. 227) took effect
on August 4, 1988, the legal regime (or pre marriage property arrangements) that governs property
relations between husband and wife was the "System of Conjugal Partnership of Gains." This regime
stipulates that the properties the spouses acquired were separate and distinguished either as a

"capital property" of the husband or "paraphernal property" of the wife, and only the gains or fruits
from such properties are commonly owned by them.
Under the Family Code however, this regime of "Conjugal Partnership of Gains" is merely optional and
must be provided in their marriage settlements or agreements, otherwise if none is adopted by the
spouses, the "System of Absolute Community of Property" will govern. The Family Code encourages the
future spouses to prepare and enter into a marriage settlement or also called "ante-nuptial agreement
or contract."
Marriage Settlement (or Agreement) is a contract executed by the future spouses before the marriage
will take place by which the enjoyment, devolution and legal rights on their properties are regulated.
Also called "ante-nuptial agreement," it is a contract that details necessary provisions that both
spouses agree on as to the ownership, nature and value of the properties which they bring into the
marriage and other arrangements as to the ownership, disposition and distribution of future acquired
properties.
To be valid, the "Marriage Settlement" must contain the following elements or requisites: it must be in
writing, it must be a voluntary act of the contracting parties, it must be signed by the parties and it
must be prepared and executed before the marriage. As provided under Article 75 of the Family Code:
"The future spouses may, in the marriage settlement, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of property, or any other regime. In the absence of
marriage settlements, or when the regime agreed upon is void, the system of absolute community of
property as established in this Code shall govern."
Briefly, the following regimes could be described as follows:
1. Absolute Community of Property - both the husband and wife are considered joint owners of all the
properties acquired during the marriage. The properties which each spouse brings into the marriage,
and those which they acquire during the marriage shall form a common mass (or ownership), each
spouse losing the individual ownership of the property brought into the marriage because these will
now be a joint co-ownership of the properties by the spouses.
2. Conjugal Partnership of Gains - this stipulates that only the profits of the partnership are divided
between the spouses. Under this regime, the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and undertakings and those acquired by
either or both spouses through their efforts or by chance.
3. Complete Separation of Spouses Property - the spouses during the marriage settlement may agree
upon this regime which is a complete separation of their respective properties - "capital property" of
the husband and "paraphernal property" of the wife. Separation of property may refer to present or
future property or both. It may be total or partial. In the latter case, the property not agreed upon as
separate shall pertain to the absolute community.
Property Relations of Unions Without Marriage (Live-in Partners)
When a man and a woman who are "capacitated to marry each other" live together as husband and
wife without the benefit of marriage or under a void marriage, all their wages and salaries shall be

owned in equal shares and the property acquired by them through their work or industry shall be
governed by the rules on co-ownership. Unless the contrary is proved, properties acquired while they
lived together are presumed to have been obtained by their joint efforts.
When a man and a woman who are "not capacitated to marry each other" live exclusively with each
other as husband and wife without the benefit of marriage or under a void marriage, only the
properties acquired by them through their actual joint contribution of money, property or industry shall
be owned by them in common in proportions to their respective contributions.
To all spouses

Conjugal Partnership of Gains

General Provisions
Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal
partnership gains shall govern their property relations during marriage, the provisions in this Chapter
shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal partnerships of gains already established
between spouses before the effectivity of this Code, without prejudice to vested rights already
acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n)
Note: Date of Effectivity of Family Code August 3, 1988
Art. 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common
fund the proceeds, products, fruits and income from their separate properties and those acquired by
either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of
the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage settlements. (142a)

Conjugal Partnership Property Art. 116. All property acquired during the marriage, whether the
acquisition appears to have been made, contracted or registered in the name of one or both spouses,
is presumed to be conjugal unless the contrary is proved. (160a)
Comment: Married to is not descriptive of status only because the presumption is
that the property is conjugal since it was acquired during marriage.

Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the expense of the common
fund, whether the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the
spouses;

(3) The fruits, natural, industrial, or civil, due or received during the marriage from the
common property, as well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder
or owner of the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of
each kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting.
However, losses therefrom shall be borne exclusively by the loser-spouse. (153a, 154a, 155,
159)
Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses
and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the
marriage and to the conjugal partnership if such ownership was vested during the marriage. In either
case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by
the owner or owners upon liquidation of the partnership. (n)
Section 2. Exclusive Property of Each Spouse [under conjugal partnership of gains regime]
The following shall be the exclusive property of each spouse:

Art. 109.

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by gratuitous title;
(3) That which is acquired by right of redemption, by barter or by exchange with property
belonging to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife or of the husband. (148a)

Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their
exclusive properties.
Either spouse may, during the marriage, transfer the administration of his or her exclusive property to
the other by means of a public instrument, which shall be recorded in the registry of property of the
place the property is located. (137a, 168a, 169a)
COMMENT: Power of administration does not include the power to sell
Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and appear alone in court to litigate with
regard to the same. (n)
COMMENT: No need of marital consent

Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically
terminates the administration over such property and the proceeds of the alienation shall be turned
over to the owner-spouse. (n) \
Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate
shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of
designation, share and share alike, without prejudice to the right of accretion when proper. (150a)
Administration of the Conjugal Partnership Property
Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses
jointly. In case of disagreement, the husband's decision shall prevail, 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 conjugal 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 shall be void. However, the transaction shall 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. (165a)
Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the
other. However, either spouse may, without the consent of the other, make moderate donations from
the conjugal partnership property for charity or on occasions of family rejoicing or family distress.
(174a

Dear PAO,
I have been married for five years now. My husband and I have been living apart for a year already. In
addition to this, he continues to live with his mother and has never worked a day in his life. During an
argument, my husband told me that all of my possessions are his as well. I found out that since we do not have
any prenuptial agreement, our properties are owned by us in common. I am on my way to finish my
amortizations on a townhouse in Quezon City. I really do not want my husband to own any of it. Is there any
way for us to not own properties in common? Thank you!
Juliet
Dear Juliet,
The Family Code allows spouses to enter into a property regime of separation of property. Article 134 of this
Code provides that even if the spouses did not enter into any marriage settlement, otherwise known as a
prenuptial or antenuptial agreement, they can still have a separation of property by seeking a judicial order.
The judicial order of separation of property may be voluntary or for sufficient cause.

If you and your husband are amenable to separating your properties, then you can jointly submit a verified
petition with the court for voluntary dissolution of your absolute community or conjugal partnership of gains
(Article 136, Family Code). Take note that voluntary dissolution can only be granted once by the court.
Therefore, if you and your husband decide to combine your properties once again and revive your absolute
community or conjugal partnership of gains, you can file a motion to revive your previous property regime in
the same court. However, the court will no longer allow you to voluntarily dissolve it again (Article 141 (7),
Family Code).
If there is no amicable settlement to voluntarily dissolve your existing property regime, you may still file a
petition for dissolution of your property regime for cause. Article 135 of the abovementioned law numerates
the following as sufficient causes for judicial separation of property:
(1)

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

(2)

That the spouse of the petitioner has been judicially declared an absentee;

(3)

That loss of parental authority of the spouse of petitioner has been decreed by the court;

(4)

That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations

to the family as provided for in Article 101;

(5)

That the spouse granted the power of administration in the marriage settlements has abused that power;

and
(6)

That at the time of the petition, the spouses have been separated in fact for at least one year and

reconciliation is highly improbable.

In the cases provided for in numbers (1), (2) and (3), the presentation of the final judgment against the guilty
or absent spouse shall be enough basis for the grant of the decree of judicial separation of property.
If your petition is based on any of the grounds under Article 135, the court will grant your petition. The
existing property regime will be dissolved and liquidated and you will have a separation of property.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our
appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.

Marriage Settlement and Property Regimes

1.

What is a marriage settlement?

A marriage settlement is an agreement executed between two parties who plan to get married, in
preparation for the property regime that would govern their conjugal property during the marriage.
Such agreements are also commonly known as Pre-Nuptial Agreement.
The future spouses may, in the marriage settlements, agree upon the regime of absolute community,
conjugal partnership of gain, complete separation of property, or 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 shall govern. (Article 75 of the Family Code of the
Philippines)
2.
What is a property regime?
A property regime is the set of rules agreed upon by the parties, before getting married, which would
govern their property relations during the course of their married life.

3.
What are the different kinds of property regimes in the Philippines?
There are three kinds of property regimes which are recognized by the laws of the Philippines:
1.
2.
3.

Regime of Absolute Community of Property

Regime of Conjugal Partnership of Gains
Regime of Complete Separation of Properties

4.
Explain the Regime of Absolute Community of Property.
In the Regime of Absolute Community of Property, the husband and the wife become co-owners of all
the properties that they bring into the marriage and those acquired by either or both of them during
the course of their marriage, save for some exceptions. (Article 90 of the Family Code of the
Philippines)
The administration and enjoyment of the community property shall belong to both the spouses
jointly. (Article 96 of the Family Code)
Neither spouse may donate any community property without the consent of the other. (Article 98 of
the Family Code)
The Regime of the Absolute Community of Property is the default property regime that would govern
the property relations of a couple who had not executed a marriage settlement prior to their marriage.

5.
Explain the Regime of Conjugal Partnership.
In Regime of Conjugal Partnership of Gains, the husband and the wife retain ownership over their
respective properties. The Parties place in a common fund the proceeds, products, fruits and income
from their separate properties and those acquired by either or both spouses through their efforts or by
chance. Upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by
either or both spouses shall be divided equally between them, unless otherwise stated in the marriage
settlements. (Article 106 of the Family Code of the Philippines)
The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly.
(Article 124 of the Family Code of the Philippines)
Neither spouse may donate any conjugal partnership property without the consent of the other.
(Article 125 of the Family Code of the Philippines)
6.
Explain the Regime of Complete Separation of Properties.
In the Regime of Complete Separation of Properties, each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without need of the consent of the other. To each
spouse shall belong all the earnings from his or her profession, business or industry and all fruits,
natural, industrial or civil, due or received during the marriage from his or her separate
property. (Article 145 of the Family Code of the Philippines)

The Parties are free to manage their respective properties without interference from the other spouse.
Likewise, the Parties are also free to donate without interference of the other.
7.
What is the conjugal partnership responsible for?
The conjugal partnership shall be liable for:
a)
The support of the spouse, their common children and the legitimate children of either spouse;
however, the support of the illegitimate children shall be governed by the provisions on this Code on
Support;
b)
All debts and obligations contracted during the marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of gains, or by both spouses, or by one of them with the
consent of the other;
c)
Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have benefited;
d)
All taxes, liens, charges and expenses, including major and minor repairs upon the conjugal
partnership property;
e)
All taxes and expenses for mere preservation made during the marriage upon the separate
property of either spouse;
f)
Expenses to enable either spouse to commence or complete a professional, vocational or other
activity for self-improvement;
g)

Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;

h)
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 or other
activity for self-improvement, and
i)

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

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

8.
Are we required to have a marriage settlement to get married?
No, it is not mandatory that couples planning to get married must execute a marriage settlement.
Absent of a marriage settlement, the property regime that would govern the property relations, as
stated in the Family Code of the Philippines, would be Absolute Community of Property.
9.
When should the marriage settlement be executed by the Parties?
The marriage settlement should be executed prior to the celebration of the marriage of the Parties, for
the marriage settlement to be valid. (Article 76 of the Family Code of the Philippines)
10. What if the couple decided after their marriage to execute a marriage settlement?
The marriage settlement would not be valid. For the marriage settlement to be valid, it must be
executed prior to the celebration of the marriage. Any other time after the celebration of the marriage,
would render the marriage settlement as void.

11. What if the couple decides to modify their valid and existing marriage settlement after
the celebration of their marriage?

Likewise, any modifications to the marriage settlement must be done prior to the celebration of the
marriage, for the modifications to be valid. Any later, after the celebration of the marriage, would
render the modification to the marriage settlement as void and it would not be applied to the marriage
settlement. (Article 76 of the Family Code of the Philippines)
Post-marriage modification of marriage settlements can take place only where:
(a) The absolute community or conjugal partnership was dissolved and liquidated upon a decree of
legal separation;
(b) The spouses who were legally separated reconciled and agreed to revive their former property
regime;
(c) Judicial separation of property had been had on the ground that a spouse abandons the other
without just cause or fails to comply with his obligations to the family; 2
(d) There was judicial separation of property under Article 135; or
(e) The spouses jointly filed a petition for the voluntary dissolution of their absolute community or
conjugal partnership of gains.

12. When would the property regime commence?

The property regimes shall commence at the precise moment that the marriage is celebrated.

13. Can the Parties stipulate some other time, apart from the celebration of the marriage,
for the property regime to commence?
No, the property regime will only commence at the celebration of the marriage and no other time. Any
stipulation contrary to this would be contrary to law which provides that any stipulation, express or
implied, for the commencement of the property regime at any other time shall be void.(Article 88 of
the Family Code of the Philippines)
14. Is there a need for the marriage settlement executed by the Parties be registered in a
specific government agency?
No, there is no need for the Parties to register the marriage settlement in a specific government
agency. Because the marriage settlement is between the Parties, it is valid because it is in the nature
of a contract. Obligations arising from contracts have the force of law between the contracting parties
and should be complied with in good faith. (Article 1159 of the New Civil Code of the
Philippines)
However, the marriage settlement shall 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. (Article 77 of the Family Code of the Philippines)
15. Can the spouses mutually agree to dissolve their conjugal partnership?
Yes. The husband and the wife may agree upon the dissolution of the conjugal partnership during
marriage, subject to judicial approval. All the creditors of the husband and of the wife, well as of the
conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution
of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his
interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take
such measures as may protect the creditors and other third persons. (Article 191 of the New Civil
Code of the Philippines)
16. What are the instances that a spouse may ask for judicial separation, as stated under
Article 135?

Under Article 135, a spouse may petition the court for judicial separation of property in case of the
following instances below:
a)
That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;
b)

That the spouse of the petitioner had been judicially declared an absentee;

c)

That loss of parental authority of the spouse of the petitioner has been decreed by the court;

d)
That the spouse of the petitioner has abandoned the latter or failed to comply with his or her
obligations to the family as provided for in Article 101;
e)
That the spouse granted the power of administration in the marriage settlement has abused that
power;
f)
That at the time of the petition, the spouses have been separated in fact for at least one year
and reconciliation is highly improbable.

17. If I had gotten married without making any marriage settlement or pre-nuptial
agreement, would there be a property regime that would govern our property relations?
In the absence of a marriage settlement or a pre-nuptial agreement between the Parties, the Regime
of Absolute Community of Property would govern the property relations of the Parties.

18. If we did not execute any marriage settlement before our marriage, may we still
change our property relations during our marriage?
No, any modifications to the marriage settlement must be made before the celebration of the
marriage, for the modifications and changes to be valid. (Article 76 of the Family Code of the
Philippines)
However, the Parties may jointly file a verified petition with the court for the voluntary dissolution of
the absolute community or the conjugal partnership of gains, and for the separation of their common
properties during their marriage. (Article 136 of the Family Code of the Philippines)
19. I had executed a marriage settlement with my fianc but our marriage did not push
through. What will happen to the marriage settlement agreed between us?
The marriage settlement would be rendered void because the consideration of a marriage settlement
is the marriage itself. However, if there are provisions or stipulations in the marriage settlement that
does not depend upon the occurrence of the marriage, those stipulations shall be valid.

20. I got married to my husband on 04 January 1986, without making a pre-nuptial

agreement. Which property regime would govern our property relations, considering that
the Family Code had not yet been enacted?
For marriages that were celebrated before the enactment of the Family Code, the marriage would fall
under the Civil Code. Under the Civil Code, the default property regime, in the absence of a prenuptial agreement, is the Conjugal Partnership of Gains.
21. I recently married my husband, an American citizen and we executed a pre-nuptial
agreement. Would the pre-nuptial agreement be binding in the Philippines, despite the fact
both our marriage and the marriage settlement, was celebrated in the United States?
Yes, the pre-nuptial agreement between both of you would be valid. The property relations of the
spouses shall be governed by the Philippine laws, barring any contrary stipulations in the marriage
settlement, regardless of the place of celebration of the marriage and the residence of the spouses.
(Article 80 of the Family Code of the Philippines)

22. I already owned a condo and a small farm when I met my husband. We did not execute
a marriage settlement. What will happen to my properties?
Your condo and the farm would be deemed part of the community property in the absence of any
marriage settlement executed prior to the marriage.
23. I am a single father who has 3 children and owns a house and lot and a gas station. I
recently married my new wife without executing a marriage settlement. What will happen
to my properties?
The house and lot as well as the gas station would be excluded from the community property.
This is because, properties 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 properties, are
deemed excluded from the community properties. (Article 92(3) of the Family Code of the
Philippines)
24. In our marriage settlement, my husband and I elected to have Conjugal Partnerships of
Gains as the property regime that would govern our property relations in our marriage.
Which properties would belong to me exclusively?
Each spouse would retain the ownership, possession, administration, and enjoyment of their exclusive
properties. (Article 110 of the Family Code of the Philippines)
The following are the exclusive properties of each spouse:
1.
2.

Those properties that each spouse had brought to the marriage as their own;
Those properties which had been acquired by the spouses during the marriage by gratuitous
title;
3.
Those properties which had been acquired by right of redemption, by barter or by exchange
with property belonging to only one of the spouses; and
4.
Those properties which had been purchased with the exclusive money of the spouse.
(Article 109 of the Family Code of the Philippines)
25. My husband and I did not execute a marriage settlement. After our wedding, my
brother donated a condo to me alone. To whom would the condo belong?
The condo would belong to you alone. Property acquired during marriage by gratuitous title by either
spouse is deemed executed from the community property. (Article 92 (1) of the Family Code of
the Philippines)
26. What about the debts of my husband incurred from gambling, if we have no marriage
settlement?
You will not be liable for the debts of your husband incurred from gambling. Whatever your husband
lost during your marriage in any game of chance or in betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited by law, shall be borne by him and shall not be charged to
the properties owned in common. (Article 95 of the Family Code of the Philippines)
27. I recently found out that my husband had taken out a huge loan. Will our conjugal
properties be liable for his loan, despite the fact I had no knowledge of it nor was a party?
No. The conjugal property should not be liable to the personal loan taken out by your husband. The
payment of personal debts contracted by the husband or the wife before or during the marriage shall
not be charged to the conjugal properties partnership except insofar as they redounded to the benefit
of the family. (Article 122 of the Family Code of the Philippines)
28. What if the loan was used for the construction of our house?

If the loan was taken out for the construction of the family house, the conjugal properties may be
liable, despite the fact that you had no knowledge of the loan. (Article 122 of the Family Code of
the Philippines)
29. What if my husband had been arrested and is ordered to pay a fine of Ten Thousand
Pesos (PhP10,000.00), will the amount be taken out of our conjugal properties?
No. The amount for the fine would not be applied to the conjugal property.
The payment of personal debts contracted by the husband or the wife before or during the marriage
shall not be charged to the conjugal properties partnerships except insofar as they redounded to the
benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.
(Article 122 of the Family Code of the Philippines)
30. What happens if my husband had no other property or money apart from our conjugal
property?
If your husband had no other property or money apart from the conjugal property, the debt or the fine
may be applied to your conjugal property.
The payment of personal debts contracted by either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may
be enforced against the partnership assets after the responsibilities enumerated in the preceding
Article have been covered, if the spouse who is bound should have no exclusive property or if it should
be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for
what has been paid for the purpose above-mentioned.

31. My fianc had recently been imprisoned and one of his penalties is civil interdiction.
Can we still execute a marriage settlement?
Yes. However, the guardian, who would be appointed by the court, of the party suffering from civil
interdiction shall be made a party to the written marriage settlement. (Article 79 of the Family
Code of the Philippines)
32. I had recently reconciled with my husband. However, we had been legally separated for
about 10 years now. Are we allowed to revive the property regime that was subsisting
during our marriage, despite the fact that we had been legally separated?
Yes. You can revive the property regime that was in existence during your marriage as your situation
falls under one of the cases that a post-marriage modification may take place, specifically, The
spouses who were legally separated reconciled and agreed to revive their former property regime.

33. My partner and I had been living for some time without the benefit of marriage and we
had acquired a house and lot for our family. What property regime would govern our
properties?
When parties who are capacitated to contract marriage live together as man and wife without the
benefit of marriage or under a void marriage, they are deemed as co-owners in the equal share of
their wages, salaries and properties. (Article 147 of the Family Code of the Philippines)
34. I had been living with my girlfriend for 5 years and I am the sole breadwinner. Does
she have any share in my income despite the fact we are not married?
Yes. Under the law, the care and maintenance expressed by your girlfriend towards you, your family
and your home are deemed as her contribution to the union between both of you.

In absence of proof to the contrary, properties acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or industry, and shall be owned by them in equal
shares. (Article 147 of the Family Code of the Philippines)
35. What if my partner was still married to her husband and we had acquired properties?
The properties that both of you had acquired would be deemed as under a co-ownership with you and
your partner as the co-owners in proportion to your respective contributions. Absent proof of actual
contributions, the contributions and corresponding shares shall be deemed equal. However, since your
partner still has a subsisting marriage, his share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in his marriage.

36. My marriage to my ex-husband had been recently declared by the courts as void. What
will happen to our properties acquired during the time of cohabitation?
According to Article 147 When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife, without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them in equal shares and the property acquired
by both of them through their work or industry shall be governed by the rules on co-ownership.
In absence of proof to the contrary, properties acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or industry, and shall be owned by them in equal
shares. For purposes of this Article, a party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed jointly in the acquisition thereof in the
formers efforts consisted in the care and maintenance of the family and the household. xxx
This particular kind of co-ownership applies when a man and a woman, suffering no legal impediment
to marry each other, so exclusively live together as husband and wife under a void marriage or without
the benefit of marriage. Under this property regime, property acquired by both spouses through their
work and industry shall be governed by the rules on equal co-ownership. Any property acquired during
the union is prima facie presumed to have been obtained through their joint efforts. A party who did
not participate in the acquisition of the property shall be considered as having contributed thereto
jointly if said partys efforts consisted in the care and maintenance of the family household. Unlike
the conjugal partnership of gains, the fruits of the couples separate property are not included in the
co-ownership. (Valdez vs. RTC, Branch 102, Quezon City, G.R. No. 122749, 31 July 1996)
37. What if my husband knew all along that our marriage was void, what will happen to our
properties?
The share of the party who is in bad faith shall be forfeited in favor of the common children. However,
if the union produced no children or if the common children or their descendants waive their right to
their respective share, the properties shall belong to you. (Article 147 of the Family Code of the
Philippines)

Separation of married couples does not affect their property

relations
May 9, 2015 11:10 pm

by PERSIDA ACOSTA

Persida Acosta

Dear PAO,
My husband and I just got separated. We were married in 2005 but things did not work out right for us so we
ended up separated after 7 years of trying hard to make our marriage work. I have recovered after that
separation and I am exerting all my efforts in building a fortune. I just want to ask if all the properties that I
will acquire after the separation will still be part of our conjugal property. Thanks.
Aura
Dear Aura,
Assuming that you and your husband did not execute an agreement pertaining to your property relations prior
to the celebration of your marriage, it is governed then by the regime of Absolute Community of Property.
Under this system, the community property shall consist of all the properties that you and your husband owned
prior to your marriage and those each of you may acquire thereafter, unless these are excluded from the
community property. This is in accordance with Article 91 of the Family Code of the Philippines, which
provides:
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property
shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired
thereafter.
The same code likewise presumes that all properties acquired during the marriage shall belong to the
community property, unless it is proved that it is one of those excluded therefrom (Article 93, Family Code of
the Philippines).
The properties that are considered exclusive property of each of the spouses under the regime of Absolute
Community of Property are explicitly provided under Article 92 of the Family Code of the Philippines, viz.:
Art. 92. The following shall be 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 shall form part
of the community property;
(2) Property for personal and exclusive use of either spouse. However, jewelry shall 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.
It is worthy to mention that even if the spouses got separated in fact, properties acquired by each of them shall
still be considered as part of their community property, as their separation does not affect their property
relations. Article 100 of the Family Code of the Philippines explicitly states:

Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute
community.
Thus, your de facto separation from your husband does not affect your property relations. Properties that you
and your husband may acquire are still considered part of your community property, unless these properties are
excluded therefrom as mentioned above.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our
appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to guide you with our opinion on the matter.
An Art 147 exception for Art 36 marriages?: Salas Jr vs Aguila (G.R. No. 202370,
September 23, 2013)

In contrast to the numerous provisions of the Family Code in Title IV governing the
absolute community of property and conjugal partnership of gains, the Family Code
has under Chapter 7 of Title IV only two provisions directly governing property
regimes of unions without marriage or under a void marriage. One of these
provisions is Article 147 of the Family Code, which states:

Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or
under a void marriage, their wages and salaries shall be owned by them in equal
shares and the property acquired by both of them through their work or industry
shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition thereof if the formers
efforts consisted in the care and maintenance of the family and of the household.

In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition thereof if the formers
efforts consisted in the care and maintenance of the family and of the household.

When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the
cohabitation. (144a)

In the earlier case of Mercado-Fehr vs Fehr (G.R. No. 152716. October 23, 2003),
the Supreme Court in interpreting Article 147 of the Family Code held that:

[F]or Article 147 to operate, the man and the woman: (1) must be capacitated to
marry each other; (2) live exclusively with each other as husband and wife; and (3)
their union is without the benefit of marriage or their marriage is void. All these
elements are present in the case at bar. It has not been shown that petitioner and
respondent suffered any impediment to marry each other. They lived exclusively
with each other as husband and wife when petitioner moved in with respondent in
his residence and were later united in marriage. Their marriage, however, was found
to be void under Article 36 of the Family Code because of respondents
psychological incapacity to comply with essential marital obligations.

On the other hand, in the recent case of Salas Jr vs Aguila (G.R. No. 202370,
September 23, 2013) 2nd div Carpio J, the Supreme Court citing the earlier case of
Dio vs Dio (GR 178044, 19 Jan 2011) 2nd Div Carpio J held that Article 147 of the
Family Code applies to the union of parties who are legally capacitated and not
barred by any impediment to contract marriage, but whose marriage is nonetheless
declared void under Article 36 of the Family Code, as in this case. The Supreme
Court applied Article 147 of the Family Code since the evidence was that the
Discovered Properties were acquired by Salas during their marriage. The TCTs of
the Discovered Properties were entered on 2 July 1999 and 29 September 2003, or
during the validity of Salas and Aguilas marriage. According to the SC, property
acquired during the marriage is prima facie presumed to have been obtained
through the couples joint efforts and governed by the rules on co-ownership.[29]
[Valdez v. RTC, Branch 102, Quezon City, 328 Phil. 1289 (1996). ] In the present
case, Salas did not rebut this presumption. In a similar case where the ground for
nullity of marriage was also psychological incapacity, we held that the properties
acquired during the union of the parties, as found by both the RTC and the CA,
would be governed by co-ownership.[30][Buenaventura v. Court of Appeals, 494
Phil. 264 (2005) .]. This jurisprudential interpretation in Salas Jr vs Aguila seems to
conflict the express words of Article 147 of the Family Code, since the latter states

that [i]n the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. [underscoring supplied] in
case of Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013), the Discovered
properties were acquired in 1999 after the celebration of the marriage but not
during cohabitation (Salas left Aguila five months after Aguila gave birth to their
daughter on 7 June 1986.) It would seem that insofar as Article 36 void unions are
concerned where there is no legal impediment, the Salas Jr vs Aguila case warrants
an inference that the requirement for the Article 147 property relation to apply has
been relaxed by requiring only that the properties were acquired during the
subsistence of the Article 36 void marriage exclusive cohabitation (live
exclusively with each other as husband and wife without the benefit of marriage or
under a void marriage [underscoring supplied]) during the time the property was
acquired as the first paragraph of Article 147 apparently mandates is not anymore
required.

Note that in the Valdez vs RTC (GR 122749, 31 July 1996) and Buenaventura vs CA
(GR 127358, 31 Mar 2005) cases cited in Salas Jr vs Aguila (G.R. No. 202370,
September 23, 2013), there was no mention of another relationship or marriage that
existed in the respective decisions aside from that which existed between the
parties whose marriage was declared void under Article 36. On the other hand, in
the case of Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013), there was no
cohabitation during the time when Discovered properties were acquired. However,
in Buenaventura , there was the statement that [s]ince the properties ordered to be
distributed by the court a quo were found, both by the trial court and the Court of
Appeals, to have been acquired during the union of the parties, the same would be
covered by the co-ownership [underscoring suppplied].

The ruling of Carpio J in Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013)
could arguably be seen as a softening of his stance in Dio vs Dio (GR 178044, 19
Jan 2011) 2nd Div Carpio J, where the Supreme Court (citing the earlier case of
Mercado-Fehr vs Fehr (G.R. No. 152716. October 23, 2003)) expressly required that
for Article 147 to apply the parties have to live exclusively with each other as
husband and wife.

Nonetheless, the case of Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013)
is undeniably a manifestation of the uniqueness of an Article 36 void marriage
under Philippine law, highlighted by Vitug J s separate opinion in Tenebro vs CA (GR
150758, 18 Feb 2004), hereunder quoted:

The effects of a marriage attended by psychological incapacity of a party or the

parties thereto may be said to have the earmarks of a voidable, more than a void,
marriage, remaining to be valid until it is judicially decreed to be a nullity. Thus,
Article 54 of the Family Code considers children conceived or born of such a void
marriage before its judicial declaration of nullity to be legitimate similar to the rule
on a voidable marriage. It is expected, even as I believe it safe to assume, that the
spouses rights and obligations, property regime and successional rights would
continue unaffected, as if it were a voidable marriage, unless and until the marriage
is judicially declared void for basically two reasons: First, psychological incapacity, a
newly-added ground for the nullity of a marriage under the Family Code, breaches
neither the essential nor the formal requisites of a valid marriages;[10][citing
Articles 2, 3 and 4 Family Code]and second, unlike the other grounds for nullity of
marriage (i.e., relationship, minority of the parties, lack of license, mistake in the
identity of the parties) which are capable of relatively easy demonstration,
psychological incapacity, however, being a mental state, may not so readily be as
evident.[11][One might observe that insanity, which could be worse than
psychological incapacity merely renders a marriage voidable, not void.]It would
have been logical for the Family Code to consider such a marriage explicitly
voidable rather than void if it were not for apparent attempt to make it closely
coincide with the Canon Law rules and nomenclature.

An Art 147 exception for Art 36 marriages?: Salas

Jr vs Aguila (G.R. No. 202370, September
23, 2013)
In contrast to the numerous provisions of the Family Code in Title IV governing the absolute
community of property and conjugal partnership of gains, the Family Code has under Chapter 7 of
Title IV only two provisions directly governing property regimes of unions without marriage or under
a void marriage. One of these provisions is Article 147 of the Family Code, which states:
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them
in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the
other party of any property shall be deemed to have contributed jointly in the acquisition thereof if
the formers efforts consisted in the care and maintenance of the family and of the household.
In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them
in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the
other party of any property shall be deemed to have contributed jointly in the acquisition thereof if
the formers efforts consisted in the care and maintenance of the family and of the household.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in
the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver
by any or all of the common children or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.
(144a)
In the earlier case of Mercado-Fehr vs Fehr (G.R. No. 152716. October 23, 2003), the Supreme
Court in interpreting Article 147 of the Family Code held that:
[F]or Article 147 to operate, the man and the woman: (1) must be capacitated to marry each other;
(2) live exclusively with each other as husband and wife; and (3) their union is without the benefit of
marriage or their marriage is void. All these elements are present in the case at bar. It has not been
shown that petitioner and respondent suffered any impediment to marry each other. They lived
exclusively with each other as husband and wife when petitioner moved in with respondent in his
residence and were later united in marriage. Their marriage, however, was found to be void under
Article 36 of the Family Code because of respondents psychological incapacity to comply with
essential marital obligations.
On the other hand, in the recent case of Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013)
2nd div Carpio J, the Supreme Court citing the earlier case of Dio vs Dio (GR 178044, 19 Jan 2011)
2nd Div Carpio J held that Article 147 of the Family Code applies to the union of parties who are
legally capacitated and not barred by any impediment to contract marriage, but whose marriage
is nonetheless declared void under Article 36 of the Family Code, as in this case. The Supreme
Court applied Article 147 of the Family Code since the evidence was that the Discovered Properties

were acquired by Salas during their marriage. The TCTs of the Discovered Properties were
entered on 2 July 1999 and 29 September 2003, or during the validity of Salas and Aguilas
marriage. According to the SC, property acquired during the marriage is prima facie presumed to
have been obtained through the couples joint efforts and governed by the rules on co-ownership. [29]
[

Valdez v. RTC, Branch 102, Quezon City, 328 Phil. 1289 (1996). ]

In the present case, Salas did not rebut this

presumption. In a similar case where the ground for nullity of marriage was also psychological
incapacity, we held that the properties acquired during the union of the parties, as found by both
the RTC and the CA, would be governed by co-ownership. [30][Buenaventura
(2005)

.]

v. Court of Appeals, 494 Phil. 264

. This jurisprudential interpretation in Salas Jr vs Aguila seems to conflict the express words

of Article 147 of the Family Code, since the latter states that [i]n the absence of proof to the
contrary, properties acquired while they lived together shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be owned by them in equal shares. [underscoring
supplied] in case of Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013), the Discovered
properties were acquired in 1999 after the celebration of the marriage but not during cohabitation
(Salas left Aguila five months after Aguila gave birth to their daughter on 7 June 1986.) It would
seem that insofar as Article 36 void unions are concerned where there is no legal impediment,
the Salas Jr vs Aguila case warrants an inference that the requirement for the Article 147 property
relation to apply has been relaxed by requiring only that the properties were acquired during the
subsistence of the Article 36 void marriage exclusive cohabitation (live exclusively with each
other as husband and wife without the benefit of marriage or under a void marriage [underscoring
supplied]) during the time the property was acquired as the first paragraph of Article 147 apparently
mandates is not anymore required.
Note that in the Valdez vs RTC (GR 122749, 31 July 1996) and Buenaventura vs CA (GR 127358, 31
Mar 2005) cases cited in Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013), there was no
mention of another relationship or marriage that existed in the respective decisions aside from that
which existed between the parties whose marriage was declared void under Article 36. On the other
hand, in the case of Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013), there was no
cohabitation

during

the

time

when

Discovered

properties

were

acquired.

However,

in Buenaventura , there was the statement that [s]ince the properties ordered to be distributed by
the court a quo were found, both by the trial court and the Court of Appeals, to have been acquired
during the union of the parties, the same would be covered by the co-ownership [underscoring
suppplied].
The ruling of Carpio J in Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013) could arguably
be seen as a softening of his stance in Dio vs Dio (GR 178044, 19 Jan 2011) 2nd Div Carpio J, where

the Supreme Court (citing the earlier case of Mercado-Fehr vs Fehr (G.R. No. 152716. October 23,
2003)) expressly required that for Article 147 to apply the parties have to live exclusively with each
other as husband and wife.
Nonetheless, the case of Salas Jr vs Aguila (G.R. No. 202370, September 23, 2013) is undeniably a
manifestation of the uniqueness of an Article 36 void marriage under Philippine law, highlighted
by Vitug J s separate opinion inTenebro vs CA (GR 150758, 18 Feb 2004), hereunder quoted:
The effects of a marriage attended by psychological incapacity of a party or the parties thereto may
be said to have the earmarks of a voidable, more than a void, marriage, remaining to be valid until it
is judicially decreed to be a nullity. Thus, Article 54 of the Family Code considers children conceived
or born of such a void marriage before its judicial declaration of nullity to be legitimate similar to the
rule on a voidable marriage. It is expected, even as I believe it safe to assume, that the spouses rights
and obligations, property regime and successional rights would continue unaffected, as if it were a
voidable marriage, unless and until the marriage is judicially declared void for basically two reasons:
First, psychological incapacity, a newly-added ground for the nullity of a marriage
under the Family Code, breaches neither the essential nor the formal requisites of a
valid marriages;[10][citing Articles 2, 3 and 4 Family Code]and second, unlike the other grounds for nullity of
marriage (i.e., relationship, minority of the parties, lack of license, mistake in the
identity of the parties) which are capable of relatively easy demonstration,
psychological incapacity, however, being a mental state, may not so readily be as
evident.[11][One might observe that insanity, which could be worse than psychological incapacity merely renders a marriage voidable, not void.] It would have been logical for the
Family Code to consider such a marriage explicitly voidable rather than void if it were not for
apparent attempt to make it closely coincide with the Canon Law rules and nomenclature.

What is the property regime of

unions without marriage?
Persons And Family Relations
inShare

Article 147

Article 147
Applicability

1. No legal impediment to marry;

Presence of legal impediment:

2. Void marriage on the ground of

psychological incapacity.

1. Adulterous relationships
2. Bigamous/polygamous marriages
3. Incestuous void marriages under Art 37
4. Void marriages by reason of public policy
(Art. 38)

Salaries & wages

Owned in equal shares

Separately owned by the parties. If any is married,

his/her
salary pertains to the CPG of the legitimate
marriage.

Property exclusively acquired

Belongs to party upon proof of
acquisition through exclusive funds

Belongs to such party

Property acquired by both through their work or industry

Governed by rules of co-ownership

Owned in common in proportion to their

respective contributions

Presumption
Property acquired while living together
presumed obtained by their

No presumption of joint acquisition. Actual joint

contribution of money,

joint efforts, work or industry and owned by property or industry shall be owned by them in
them in equal shares.
common proportion.
If one party did not participate in
acquisition: presumed to have

However, their contributions are presumed equal, in

the absence if proof to the

contributed through care and maintenance contrary

of family and household.

Forfeiture
When only one is in GF, share of party
in BF in the co-ownership be
If one of the parties is validly married to another,

his/her share
forfeited in favor of:
1. their common children

in the co-ownership shall accrue to the ACP or CPG

existing in the marriage.

2. innocent party in default of / waiver If the party who acted in BF is not validly married to
by any/all
another or if both parties
common children, or by their
descendants

are in BF, such share be forfeited in manner

provided in last par of Art. 147

Proof of actual contribution

Not necessary

Necessary

Constitution of the Philippines, Article 15:

The Family
Countries
Philippines

2. Marriage, as an inviolable social institution, is the

foundation of the family and shall be protected by the State.
3. The State shall defend:
(1) The right of spouses to found a family in accordance with
their religious convictions and the demands of responsible
parenthood;
(2) The right of children to assistance, including proper care
and nutrition, and special protection from all forms of neglect,
abuse, cruelty, exploitation, and other conditions prejudicial
to their development;
(3) The right of the family to a family living wage and income;
and
(4) The right of families or family associations to participate
in the planning and implementation of policies and programs
that affect them.
Family Code of the Philippines: Primer on the family and family home
Title V of the Family Code, specifically Articles 149 up to 162 , defines what the family is, what
family relations include and the procedures regarding the family home. (For the Biblical views
on marriage and the family , please surf over to my Legal issues and family matters website.)
How does the Family Code define family?

The family, being the foundation of the nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are governed by law and no custom, practice
or agreement destructive of the family shall be recognized or given effect. (Art. 149, Family Code)
Art. 149 speaks of family relations. What are included under the term family relations?
Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3)
Among brothers and sisters, whether of the full or half-blood. (Art. 150)
Art. 149 states that no custom, practice or agreement destructive of the family shall be
recognized or given effect. Whats an example of these destructive custom, practice or
agreement?
Please read below (after this primer) excerpts of the Supreme Court decision in Concerned
Employee vs. Mayor , A.M. No. P-02-1564. November 23, 2004. The Court said, among others,
Even if not all forms of extra-marital relations are punishable under penal law, the sanctity of
marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of
permanent union. Accordingly, the Court has had little qualms with penalizing judicial employees for
their dalliances with married persons or for their own betrayals of the marital vow of fidelity.
Please also read my discussion of the Estrada vs. Escritor ruling of the Supreme Court regarding
live-in relationships and the Constitutional freedom of religion.
If there are lawsuits between members of the same family (like quarrels among brothers and
sisters regarding their inheritance), what is the requirement, if any, of the Family Code?
No suit between members of the same family shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a compromise have been made, but that the same
have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.
(Art. 151)
If brothers and sisters, for example, cannot agree on the sharing or partition of their
inheritance, but they do not want to resort to the filing of cases in court, what legal remedy
do they have?
They can avail of Republic Act 9285 or the Alternative Dispute Resolution Act of 2004 . Under the
said law, the Office of Alternative Dispute Resolution has been created under the Department of
Justice, and it helps provide parties to settle their dispute through mediation, conciliation, arbitration
and other means

What is a family home?

The family home, constituted jointly by the husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family reside, and the land on which it is situated.
(Art. 152)
When is the family home deemed constituted?
The family home is deemed constituted on a house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is exempt from execution, forced sale or
attachment except as hereinafter provided and to the extent of the value allowed by law. (Art. 153)
Who are the beneficiaries of the family home?
The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who depend upon the head of the
family for legal support. (Art. 154)
Art. 153 states that the family home is exempt from execution, forced sale or attachment. Are
there any exceptions?
The family home shall be exempt from execution, forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have
rendered service or furnished material for the construction of the building. (Art. 155)
What may be constituted as a family home? Who may constitute a family home?
The family home must be part of the properties of the absolute community or the conjugal

partnership, or of the exclusive properties of either spouse with the latter's consent.
The family home may also be constituted by an unmarried head of a family on his or her own
property.
Nevertheless, property that is the subject of a conditional sale on installments where ownership is
reserved by the vendor only to guarantee payment of the purchase price may be constituted as a
family home. (Art. 156)
What is the value of the family home?
The actual value of the family home shall not exceed, at the time of its constitution, the amount of
the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas,
or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this Code, the value most
favorable for the constitution of a family home shall be the basis of evaluation.
Urban areas are deemed to include chartered cities and municipalities whose annual income at least
equals that legally required for chartered cities. All others are deemed to be rural areas. (Art. 157)
Can the family home be sold or otherwise alienated? Under what conditions?
The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners
thereof with the written consent of the person constituting the same, the latter's spouse, and a
majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (Art. 158)
What happens to the family home if the unmarried head of the family, or one or both spouses
die?
The family home shall continue despite the death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the family home. (Art. 159)
Under what circumstances, other than Article 155, can the family home be subject to
execution?
When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the family home is actually worth more than the
maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an

order directing the sale of the property under execution. The court shall so order if it finds that the
actual value of the family home exceeds the maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results
from subsequent voluntary improvements introduced by the person or persons constituting the family
home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and
procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall be considered. The
proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities
under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (Art.
160)
How many family homes can a person constitute?
For purposes of availing of the benefits of a family home as provided for in this Chapter, a person
may constitute, or be the beneficiary of, only one family home. (Art. 161)
Art. 149 states that no custom, practice or agreement destructive of the family shall be recognized
or given effect. The following are excerpts from the Supreme Court decision in the case
of Concerned Employee vs. Mayor (A.M. No. P-02-1564. November 23, 2004) and illustrate what
these destructive custom, practice or agreement are.
As correctly found by DCA Perez, most of the allegations stated in the anonymous letter-complaint
were unsubstantiated. Thus, they were correctly disregarded. What becomes clear though from the
facts is that respondent, a single woman, engaged in sexual relations with a married man, resulting
in a child born out of wedlock. Respondent admitted just as much in her complaint for parental
recognition and support filed on 19 May 1998, her admissions therein verified under oath. Moreover,
the illicit liaison occurred during her employment with the judiciary. For this reason, the DCA
recommends that respondent be found guilty of disgraceful and immoral conduct and suspended for
six months.
Our landmark ruling in Estrada v. Escritor emphasizes that in determining whether the acts
complained of constitute disgraceful and immoral behavior under the Civil Service Laws, the
distinction between public and secular morality on the one hand, and religious morality, on the other
should be kept in mind. The distinction between public and secular morality as expressed - albeit not
exclusively - in the law, on the one hand, and religious morality, on the other, is important because
the jurisdiction of the Court extends only to public and secular morality. Thus, government action,
including its proscription of immorality as expressed in criminal law like concubinage, must have a
secular purpose.
Thus, any judicial pronouncement that an activity constitutes disgraceful and immoral behavior
under the contemplation of the Civil Service law must satisfy the test that such conduct is regulated

on account of the concerns of public and secular morality. Such judicial declarations cannot be mere
effectuations of personal bias, notably those colored by particular religious mores. Nor would the
demand be satisfied by the haphazard invocation of cultural values, without a convincing
demonstration that these cultural biases have since been recognized and given accord within the
realm of public policy. The Constitution and the statutes of the land would serve as especially
authoritative sources of recognition, since they are irrefutable as to what the public policy is. At the
same time, the constitutional protections afforded under the Bill of Rights should be observed, to the
extent that they protect behavior that may be frowned upon by the majority.
Even if not all forms of extra-marital relations are punishable under penal law, the sanctity of
marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of
permanent union. Accordingly, the Court has had little qualms with penalizing judicial employees for
their dalliances with married persons or for their own betrayals of the marital vow of fidelity.
Please also read my discussion of the Estrada vs. Escritor ruling of the Supreme Court regarding
live-in relationships and the Constitutional freedom of religion.

Family Code of the Philippines: Primer on paternity, filiation and legitimate children
Articles 163 up to 174 of the Family Code deal with the issues of paternity, filiation, and
legitimate children. (We will discuss in the next primer the Family Code provisions on illegitimate
children.) At the latter portion of this primer are the higlights of the Supreme Court rulings inLocsin
vs. Locsin (on the importance of a birth certificate in proving filiation, and the lack of value of an
alleged childs picture taken at the funeral of the alleged father) and De Jesus vs. Dizon (on the
presumption that children born in wedlock are legitimate).
What are the kinds of filiation of children?
The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or
illegitimate.
What is the status of a child born during the marriage of its parents?
Children conceived or born during the marriage of the parents are legitimate.
What about children conceived by artificial insemination?
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or
that of a donor or both are likewise legitimate children of the husband and his wife, provided, that
both of them authorized or ratified such insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be recorded in the civil registry together with
the birth certificate of the child.

Who are illegitimate children?

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in
the Family Code.
How can the legitimacy of a child be impugned or questioned?
Legitimacy of a child may be impugned only on the following grounds:
[1] That it was physically impossible for the husband to have sexual intercourse with his wife within
the first 120 days of the 300 days which immediately preceded the birth of the child because of:
[a] the physical incapacity of the husband to have sexual intercourse with his wife;
[b] the fact that the husband and wife were living separately in such a way that sexual intercourse
was not possible; or
[c] serious illness of the husband, which absolutely prevented sexual intercourse;
[2] That it is proved that for biological or other scientific reasons, the child could not have been that
of the husband, except in the instance provided in the second paragraph of Article 164; or
[3] That in case of children conceived through artificial insemination, the written authorization or
ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue
influence.
What if the mother states that her child is in fact illegitimate? What if the mother was
sentenced by a court as being an adulteress?
The child is considered legitimate although the mother may have declared against its legitimacy or
may have been sentenced as an adulteress.
What rules govern when the marriage is terminated and the mother marries within 3oo days
after the former marriage is terminated?
If the marriage is terminated and the mother contracted another marriage within three hundred days
after such termination of the former marriage, these rules govern in the absence of proof to the
contrary:
[1] A child born before one hundred eighty days after the solemnization of the subsequent marriage
is considered to have been conceived during the former marriage, provided it be born within three

hundred days after the termination of the former marriage;

[2] A child born after one hundred eighty days following the celebration of the subsequent marriage
is considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
Who has the burden of proof in proving or disproving the filiation of a child born after 300
days following the termination of the former marriage?
The legitimacy or illegitimacy of a child born after three hundred days following the termination of the
marriage must be proved by whoever alleges such legitimacy or illegitimacy.
When should the action to impugn or question the legitimacy of a child be filed in court?
[1] The action to impugn the legitimacy of the child must be brought within one year from the
knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of
his heirs, should reside in the city or municipality where the birth took place or was recorded.
[2] If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the
paragraph above or where it was recorded, the period shall be two years if they should reside in the
Philippines; and three years if abroad. If the birth of the child has been concealed from or was
unknown to the husband or his heirs, the period must be counted from the discovery or knowledge of
the birth of the child or of the fact of registration of said birth, whichever is earlier.
In what instances can the heirs of a husband impugn or question the filiation of an alleged
child?
The heirs of the husband may impugn the filiation of the child within the period prescribed in the
preceding article only in the following cases:
[1] If the husband should die before the expiration of the period fixed for bringing his action;
[2] If he should die after the filing of the complaint without having desisted therefrom; or
[3] If the child was born after the death of the husband.
How can the filiation of legitimate children be proved?
The filiation of legitimate children is established by any of the following:
[1] The record of birth appearing in the civil register or a final judgment; or

[2] An admission of legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation must be proved by:
[1] The open and continuous possession of the status of a legitimate child; or
[2] Any other means allowed by the Rules of Court and special laws.
Within what periods should the claim for legitimacy be pursued?
The action to claim legitimacy may be brought by the child during his or her lifetime and will be
transmitted to the heirs should the child die during minority or in a state of insanity. In these cases,
the heirs have a period of five years within which to institute the action.
What are the rights of legitimate children?
Legitimate children have the right:
[1] To bear the surnames of the father and the mother, in conformity with the provisions of the Civil
Code on Surnames;
[2] To receive support from their parents, their ascendants, and in proper cases, their brothers and
sisters, in conformity with the provisions of this Code on Support; and
[3] To be entitled to the legitime and other successional rights granted to them by the Civil Code.
Locsin vs. Locsin, G.R. No. 146737, December 10, 2001
A birth certificate is a formidable piece of evidence prescribed by both the Civil Code and Article 172
of the Family Code for purposes of recognition and filiation. However, birth certificate offers only
prima facie evidence of filiation and may be refuted by contrary evidence. Its evidentiary worth
cannot be sustained where there exists strong, complete and conclusive proof of its falsity or nullity.
In this case, respondent's Certificate of Live Birth No. 477 entered in the records of the Local Civil
Registry [from which Exhibit "D" was machine copied] has all the badges of nullity. Without doubt,
the authentic copy on file in that office was removed and substituted with a falsified Certificate of
Live Birth.
Incidentally, respondent's photograph with his mother near the coffin of the late Juan C. Locsin
cannot and will not constitute proof of filiation, lest we recklessly set a very dangerous precedent that

would encourage and sanction fraudulent claims. Anybody can have a picture taken while standing
before a coffin with others and thereafter utilize it in claiming the estate of the deceased.

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

The petition involves the case of two illegitimate children who, having been born in lawful wedlock,
claim to be the illegitimate scions of the decedent in order to enforce their respective shares in the
latters estate under the rules on succession.
The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth
appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public
document or a private handwritten instrument and signed by the parent concerned. In the absence
thereof, filiation shall be proved by (1) the open and continuous possession of the status of a
legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due
recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or
in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no
further court action is required. In fact, any authentic writing is treated not just a ground for
compulsory recognition; it is in itself a voluntary recognition that does not require a separate action
for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely
tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record
or an authentic writing, judicial action within the applicable statute of limitations is essential in order
to establish the childs acknowledgment.
A scrutiny of the records would show that petitioners were born during the marriage of their parents.
The certificates of live birth would also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly established and founded on sounder
morality and more convincing reason than the presumption that children born in wedlock are
legitimate. This presumption indeed becomes conclusive in the absence of proof that there is
physical impossibility of access between the spouses during the first 120 days of the 300 days which
immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have
sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a
way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely
prevents sexual intercourse.
Succinctly, in an attempt to establish their illegitimate filiation to the late Juan G. Dizon, petitioners, in
effect, would impugn their legitimate status as being children of Danilo de Jesus and Carolina Aves
de Jesus. This step cannot be aptly done because the law itself establishes the legitimacy of
children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a
civil status for the child born in wedlock, and only the father, or in exceptional instances the latters
heirs, can contest in an appropriate action the legitimacy of a child born to his wife. Thus, it is only

when the legitimacy of a child has been successfully impugned that the paternity of the husband can
be rejected.

Should there be no distinction between

legitimate and illegitimate children?
A news item from the Philippine Star reveals that House Bill 2355 was filed by Albay 2nd District
Rep. Al Francis Bichara which seeks to treat legitimate and illegitimate children as co-equal.The
last portion of the report cites Congressman Bichara as saying that aside from being marginalized
as a result of this unwarranted label, children born out of marriage have limited rights and
privileges especially with respect to successional rights.
Presently, the intestate share and legitime of an illegitimate child is one half of that of a legitimate
child, and there is a barrier of intestate succession under Article 992 of the Civil Code between
illegitimate children and the legitimate relatives of his/her parent.
In relation to the proposed amendment, it is best to remember that the distinction between
legitimate and illegitimate children do not only deal with successional rights there are other
distinctions found in Philippine law between legitimate and illegitimate children. Some of these
distinctions include:
1. Which parent exercises parental authority over the child default parental authority over an
illegitimate child resides only in the mother under Article 176 of the Family Code as amended by RA
9255 even if the child is recognized by the father, while default parental authority over legitimate
children reside in both parents under Article 211 of the Family Code.
2. Questions over whether the conjugal partnership or absolute community should be liable for the
amount of support a parent gives to his/her illegitimate child under Articles 94(9) and 122 3rd
paragraph of the Family Code, conjugal partnership / absolute community property are only
secondarily liable for the support of illegitimate children since primary responsibility falls on the
parents exclusive property; on the other hand, support of legitimate children are a primary liability
of the conjugal partnership of gains and absolute community of property under Articles 94(1) and
Art 121(1) of the Family Code.
3. The use of the fathers name as surname the legitimate child is obligated to use the fathers
surname since Article 174 of the Family Code says that the legitimate child shall have the right [t]o
bear the surnames of the father and the mother, in conformity with the provisions of the Civil
Code on Surnames and Article 364 of the Civil Code uses the mandatory word shall in stating that
[l]egitimate and legitimated children shall principally use the surname of the father; on the other
hand, recognized illegitimate children under Article 176 of the Family Code as amended by RA
9255 may choose to use or not to use their fathers surname since Article 176 of the Family Code says

that illegitimate children may use the surname of their father if their filiation has been expressly
recognized.
4. The prohibition of certain marriages under Article 38(7) of the Family Code, a marriage between
an adopted child and a legitimate child of the adopter is void as against public policy, while there is
no such prohibition between a marriage between an adopted child and an illegitimate child of the
adopter, Article 38(7) of the Family Code being an express statutory exception to the general rule is
that [t]he relationship created by the adoption is between only the adopting parents and the
adopted child and does not extend to the blood relatives of either party: see Sayson vs CA (G.R.
Nos. 89224-25, 23 January 1992).
5. The requirement of consent of the adopters children to the adoption under Section 9 of RA
8552 the adopters legitimate children ten years of age or over must give their consent to the
adoption but the consent of the adopters illegitimate children of the same age is necessary only if the
illegitimate children are living with said adopter and the latters spouse.
6. The use of a middle name An unrecognized illegitimate child may be unjustly discriminated in
school because his or her name does not contain a middle name. In Wang vs Cebu City Civil
Registrar (G.R. No. 159966. March 30, 2005) it was stated that
[A]n illegitimate child whose filiation is not recognized by the father bears only a given name and his
mothers 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 mothers surname as his middle name and his fathers
surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate
child.
In the same case of Wang it was stated that [t]he Family Code gives legitimate children the right to
bear the surnames of the father and the mother.
7. Proof of filiation A legitimate child is one who is born or conceived during the parents marriage;
once operative facts are proven to give rise to the presumption of legitimacy (one operative fact being
that the child is born or conceived of the wife during the marriage), then the presumption of
legitimacy arises without need of any other proof. Illegitimacy requires either a voluntary recognition
(under the first paragraph of Article 172 of the Family Code, it is a voluntary recognition found in a
record of birth, public document or a private handwritten instrument and signed by the parent
concerned), or a compulsory recognition through a court judgment (requiring proof under the 2nd
paragraph of Article 172 of the Family Code [t]he open and continuous possession of the status of
a legitimate child and [a]ny other means allowed by the Rules of Court and special laws).

 Atty. Alex Andrew P. Icao

Leave a comment
Filed under Absolute community system of property, Conjugal partnership of gains,Consequence of
filiation, Distinction between legitimate and illegitimate children, Paternity & Filiation, Property
relations, Uncategorized, use of surname or middle name
SEPTEMBER 1, 2013 10:06 AM

A legitimate child may use the mothers

surname after the fathers surname
If the legitimate childs first name is Jose, the mothers surname Reyes and the fathers surname
Garcia, may the child be registered as Jose Garcia Reyes?
Article 364 of the New Civil Code states that [l]egitimate and legitimated children shall principally
use the surname of the father. It was established in the case of In re Adoption of Stephanie Nathy
Astorga Garcia (G.R. No. 148311. March 31, 2005) 3rd div Sandoval-Gutierrez J that the use of the
mothers surname as middle name by a legitimate child is merely discretionary. In other words, in
registering the name of a child, the childs name may or may not bear the mothers surname. By way
of exception, the use of a middle name or the mothers surname is mandatory only in the case of
descendants bearing identical first names with ascendants under Article 375 of the New Civil Code.
Should it be decided that the child bear the mothers surname, the law does not expressly state that
the mothers surname be a middle name or should precede the fathers family name.
The Supreme Court in In re Adoption of Stephanie Nathy Astorga Garcia quoted the Minutes of the
Joint Meeting of the Civil Code and Family law Committees (August 10, 1985, pp. 16-18), as follows:
However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law
Committees that drafted the Family Code recognized the Filipino custom of adding the
surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of
the Civil Code and Family Law Committees, the members approved the suggestion that the initial
or surname of the mother should immediately precede the surname of the father, thus
Justice Caguioa commented that there is a difference between the use by the wife of the surname
and that of the child because the fathers surname indicates the family to which he
belongs, for which reason he would insist on the use of the fathers surname by the
child but that, if he wants to, the child may also use the surname of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his
name be written? Justice Caguioa replied that it is up to him but that his point is that it should be

mandatory that the child uses the surname of the father and permissive in the case of
the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which
reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person himself precisely
because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles
correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile.
Justice Jose Gutierrez Davids family name is Gutierrez and his mothers surname is David but they
all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be modified to the effect that
it shall be mandatory on the child to use the surname of the father but he may use the
surname of the mother by way of an initial or a middle name. Prof. Balane stated that they
take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10)
they are just enumerating the rights of legitimate children so that the details can be covered in the
appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the
surname of the father should always be last because there are so many traditions like the American
tradition where they like to use their second given name and the Latin tradition, which is also
followed by the Chinese wherein they even include the Clan name.
xxx
Justice Puno suggested that they agree in principle that in the Chapter on the Use of
Surnames, they should say that initial or surname of the mother should immediately
precede the surname of the father so that the second name, if any, will be before the
surname of the mother. Prof. Balane added that this is really the Filipino way. The
Committee approved the suggestion.[12][Minutes of the Joint Meeting of the Civil Code and Family law Committees, August 10, 1985, pp. 16-18] (Emphasis
supplied)
The emphasis was supplied in the Decision itself. The underscoring is supplied here. Note that it was
stated in the Decision that the members approved the suggestion that the initial or surname of the
mother should immediately precede the surname of the father. The suggested article was never
approved by Congress since Congress did not amend the New Civil Code. Arguably, then, under the
underscored portion of the Minutes of the Joint Meeting of the Civil Code and Family law
Committees interpreting Article 364 of the New Civil Code (particularly where Justice Puno posed

the question: If the child chooses to use the surname of the mother, how will his name be written?
Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that
the child uses the surname of the father and permissive in the case of the surname of
the mother and Prof. Baviera remarked that Justice Caguioas point is covered by the present
Article 364), it is permissible for a legitimate child to use his or her mothers surname and that
surname may follow the fathers surname.
Article 174 of the Family Code in stating that [l]egitimate children shall have the right (1) To bear
the surnames of the father and the mother, in conformity with the provisions of the Civil Code on
Surnames defers to the New Civil Code provisions on Surnames, which includes Article 364 of the
New Civil Code.

Atty. Alex Andrew P. Icao

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Filed under Consequence of filiation, Paternity & Filiation, Uncategorized, use of surname or middle
name
AUGUST 29, 2013 11:39 PM

May an unrecognized illegitimate child use

the surname of the father?
Article 176 of the Family Code as amended by Republic Act 9255 which took effect on March 19,
2004 states that:
Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. However, illegitimate children may use
the 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. Provided,the father has the right to institute an action
before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child.
Under Article 175 of the Family Code, only voluntarily recognized illegitimate children are expressly
entitled to use their fathers surname.
But may an unrecognized illegitimate child use the surname of the father, arguing from the case
of Republic vs Lim (GR No. 153883, 13 Jan 2004)? In the Lim case, an illegitimate child, who was
not allowed to use the surname of his father (presumptively under the provisions of Article 175 of the

Family Code), was nevertheless allowed to use the surname of the father on the basis that the child
has used the surname since childhood. The Court cited the earlier case ofPabellar vs Republic (GR
No. L-27298, 4 March 1976) and invoked Sec. 1 of Commonwealth Act No. 142, the law regulating
the use of aliases where a person is allowed to use a name by which he has been known since
childhood. Republic vs Lim was decided before the effectivity of Republic Act 9255. Before
amendment of Article 176 of the Family Code by Republic Act 9255, even if there was a voluntary
recognition, an illegitimate child cannot use the fathers surname this was the law applicable
in Lim. Republic Act 9255 (which took effect on March 19, 2004) now allows an illegitimate child to
use the fathers surname in cases of voluntary recognition. It is submitted that an unrecognized
illegitimate child cannot be allowed to use his fathers surname notwithstanding the childs use of the
surname since childhood, since this will create confusion association with the father, when in the
eyes of the law no relationship exists between the father and the child. Lim itself disallows the use of
the fathers surname as would give the false impression of family relationship which would in
great probability cause prejudice or future mischief to the family whose surname it is that is
involved or to the community in general.

Atty. Alex Andrew P. Icao

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Filed under Consequence of filiation, Paternity & Filiation
JULY 9, 2013 9:45 AM

Presumption of legitimacy during

legal separation?
Can there be a presumption of legitimacy if the child is conceived of the wife when the spouses are
legally separated?
It may be recalled that children born or conceived of the wife during a marriage are presumed
legitimate. This presumption of legitimacy is based on the provisions of Articles 164 1 st par, 166, 167,
170, and 171 of the Family Code.
The right of coition (sexual intercourse) generally exists between the husband and wife as implied
from their obligation to live together (Article 68 Family Code). Arguably, this may be the reason
why the husband must prove physical impossibility of sexual intercourse under Article 166 of the
Family Code. However, such right of coition and right to live together is inexistent when a legal
separation has been finally decreed by the Court (see Article 63(1) of the Family Code which says that

The spouses shall be entitled to live separately from each other, but the marriage bonds shall not
be severed).
It is arguable then, that when the spouses are legally and de facto separated, there is no presumption
of legitimacy that attaches when legal and de facto separation coincide during the time of concepcion
of the child. Since there is no presumption that attaches, there is no need for the husband to impugn
any presumed legitimacy by adducing evidence enumerated under Article 166 of the Family Code.
Against the arguments above, it may be argued that the presumption of legitimacy does not depend
upon the right of sexual access, since Article 164 of the Family Code expressly states that children
conceived or born during the marriage are legitimate. Previously, under the New Civil Code, there
was a provision (Article 261) which stated that There is no presumption of legitimacy or
illegitimacy of a child born after three hundred days following the dissolution of the marriage
or the separation of the spouses. Whoever alleges the legitimacy or the illegitimacy of such child
must prove his allegation. (underscoring supplied). The underlined phrase was not carried over to
Article 169 of the Family Code.

Atty. Alex Andrew P. Icao

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Filed under Legal Separation, Paternity & Filiation,Presumption of legitimacy
JULY 7, 2013 12:14 PM

Can DNA evidence overcome the

presumption of legitimacy in a
collateral proceeding?
It is not disputed that DNA evidence may be used by the husband (or in exceptional cases his heirs)
under Article 166(2) of the Family Code to impugn the childs legitimacy in a direct action, provided
it is brought within the prescriptive period.
But, can DNA evidence overcome the presumption of legitimacy in a collateral proceeding? Previous
decisions [for example, De Jesus vs Estate of Juan Gamboa Dizon (G.R. No. 142877. October 2,
2001) 3rd div Vitug J] have declared that a child who is presumed legitimate (having been born or
conceived from the wife during the marriage) cannot in a collateral proceeding impugn the
presumption of legitimacy by participating in or by initiating an action that is predicated upon the
childs not being a legitimate child such as an action for compulsory recognition against a man who

is supposedly the childs true but illegitimate father, or participating in an action (eg, settlement of
estate or partition) where the child wants to ask for his inheritance from an alleged illegitimate
father. This is because legitimacy can only be assailed in a direct action by the husband (or in
exceptional cases his heirs) within the prescriptive period.
However, in the case of Estate of Rogelio G. Ong vs Diaz (G.R. No. 171713, 17 Dec 2007) 3rd div
Chico-Nazario J, the Supreme Court in a case that stemmed from a complaint for compulsory
recognition with prayer for support pending litigation filed by a minor child (represented by her
mother who was lawfully wedded to a Japanese national at the time of the childs birth) against the
putative illegitimate father said that The presumption of legitimacy of the child, however, is not
conclusive and consequently, may be overthrown by evidence to the contrary and furthermore that
with the advancement in the field of genetics, and the availability of new technology, it can now be
determined with reasonable certainty whether Rogelio is the biological father of the minor,
through DNA testing.
There may be room for argument that the presumption of legitimacy can be overcome by DNA
evidence, even in a collateral proceeding. The conclusiveness of DNA evidence did not yet exist when
the provisions on the presumption of legitimacy and the requisites of impugning the presumption
were developed by the framers of the Civil Code. Arguably, the reason why the law defers to the legal
husbands decision on whether or not to file the action to impugn the childs legitimacy, is because
the legal husbands indecision (ostensibly to protect his familys honor) is reflective of the less
conclusive nature of pre-DNA evidence.
On the other side of the fence, the rationale why only the husband can question the presumption of
legitimacy is because [h]e is the one directly confronted with the scandal and ridicule which the
infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose it,
in view of the moral and economic interest involved [(Tison vs CA (G.R. No. 121027. July 31, 1997)
2nddiv Regalado J] is arguably independent of the conclusiveness of any evidence to prove
illegitimacy. Whether the husband is certain or uncertain as to his wifes offspring, the law defers to
his motives in not directly bringing the action to impugn the childs legitimacy within the proper
period. After all, it is for the husband (or in exceptional cases his heirs) to decide whether or not to
protect innocent offspring from the odium of illegitimacy (quote appears in Liyao vs TanhotiLiyao (G.R. No. 138961. March 7, 2002) 2nd div De Leon Jr J citing 10 Am Jur 2d, Bastards 10 at
850). Even blood-typing, which is also conclusive evidence as to non-paternity, has been there for
quite some time already.

Dear PAO,
I have an illegitimate child with a married man. When I ended our relationship, the father of my child also

stopped providing for monthly support. Can I oblige the father to provide for monthly support even if he has
not yet signed our childs birth certificate? I hope you can guide me.
JM
Dear JM,
Your child is an illegitimate child because he was born outside of a valid marriage between his parents. But
unlike a legitimate child who is automatically entitled to receive support from his father, an illegitimate child
needs to be duly recognized first by the father before he may be entitled for support. While the act of the father
in signing an illegitimate childs birth certificate is the best way of recognizing such child as his own, the same
is not the only way in which an illegitimate child may prove his illegitimate filiation.
Your illegitimate child may still ask for financial support from his biological father even if the latter did not
sign his birth certificate. To amicably settle your problem, you may initially ask from the father of your child to
sign the birth certificate of the latter. Once he has complied with your request, your child shall possess the
status of a recognized illegitimate child and shall have all the corresponding rights including the right to
support.
However, if the father of your child unjustly refused to recognize your child, you may file an action for
compulsory recognition and support against him before the Family Court of the place where you or the father
of your child resides. You shall need to prove in the said action the illegitimate filiation of your child.
According to Article 175 of the Family Code of the Philippines, illegitimate children may establish their
illegitimate filiation in the same way and the same evidence as legitimate children. This may be found in
Article 172 of the Civil Code of the Philippines, to wit:
Chapter 2. Proof of Filiation Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by
the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)
Once you have duly established your childs illegitimate filiation, the court shall issue an order compelling the
father to recognize your child and to provide for financial support.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the

facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed
or elaborated.

FILIATION OF LEGITIMATE CHILDREN

Art. 265. The filiation of legitimate children is proved by the record of birth appearing in
the Civil Register, or by an authentic document or a final judgment.
DISCUSSION:

The act of process of determining such relationship especially the son and the
father or the adjudication of paternity is proved by the record of birth or
documents in the civil register where it has a final judgment. Civil registration is
the system by which a government records the vital events of its citizens and
residents. The resulting repository or database is called civil register or registry,
or population registry. The primary purpose of civil registration is to create legal
documents that are used to establish and protect the civil rights of individuals. A
secondary purpose is to create a data source for the compilation of vital
statistics. In most countries, there is a legal requirement to notify the relevant
authority of any life event which affects the registry.

It is understood that the birth certificate that is the basic of the record of
the birth is signed by the parents(normally the father) against whom against
proof of filiation is directed. A recognition or admission by the father of a child
that the latter is his child is a cogent evidence most especially if embodied in a
final judgment. Be it noted that a record of birth or final judgment are public
records or documents contents of which are prima facie presumed as correct. In
fact, the stringent conditions needed by prove execution of private writings do
not apply to public documents. Thus, public instruments are evidences even
against a third person, of the fact of which gave rise to their execution and of
the date of the latter.
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ART.266 CHAPTER 2 of the Code of the Philippines

Topic: PROOF OF FILIATION OF LEGITIMATE CHILDREN
Art. 266. In the absence of the titles indicated in the preceding article, the
filiation shall be proved by the continuous possession of status of a legitimate
child.
DISCUSSION:

It must be habitual for a considerable length of time. if the child uses the father's
surname and he is treated publicly as a legitimate child by the father and mother
and by the parents family, for several years, the child has a continuous possession
of the status of a legitimate child. so also, if that child is supported and sent to
school by the parents. "Continuous" does not mean that the possession of such
status shall continue forever but only that it shall not be of an intermittent character
while in continues. The possession of such status means that the father has treated
the child as his own, directly and through others, spontaneously and without
concealment though without publicity. There must be showing of permanent
intention of the supposed father to consider the child as his own, continuous and
clear manifestation of paternal affection and care.

PICTURE OF PATERNITY

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ART.267 CHAPTER 2 of the Code of the Philipines

Topic: PROOF OF FILIATION OF LEGITIMATE CHILDREN
Art.267. In the absence of a record of birth, authentic document, final judgment or
possession of status, legitimate filiation may be proved by any other means allowed
by the Rules of Court and special laws.

DISCUSSION:
PICTURE OF COURT DOCUMENTS

The act or declaration of a person deceased or outside of the Philippines or unable

to testify, in respect to the pedigree of another, person related to him by birth or
marriage may be received in evidence where it occurred before the controversy and
the relationship between the two person is shown by the evidence other than act or
declaration. The word "pedigree" includes relationship, family, genealogy, birth,
marriage, death, the dates when and the place where those facts occurred. And the
names of the relatives. It embraces also the facts of family history intimately
connected pedigree.
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ART.268 CHAPTER 2 of the Code of the Philippines

TOPIC: PROOF OF FILIATION OF LEGITIMATE CHILDREN
Art. 268. The action to claim his legitimacy may be brought by the child during
all his lifetime, and shall be transmitted to his heirs if he should die during his
minority or in a state of insanity. In these cases the heirs shall have a period of
five
years
within
which
to
institute
the
action.
DISCUSSION:

During his or her lifetime, a child

whether of age or not may claim and bring an action to claim legitimacy against
the parents. But, how about if the parents are die? it seems clear that the child

can still claim succession rights by proving hi filiation in the appropriate

proceedings. The 5 year prescriptive period applies when the action to claim
legitimacy is brought by the heirs. If the mother or father died during the
minority of the child, in which case the latter may file the action before the
expiration of four years from the attainment of his majority. If after the death of
the father or of the mother a document should appear of which nothing had
been heard and which either or both parents recognize the child. In this case,
the action must be commenced within four years from discovery of the
document. The rationale for the rule is to give the alleged parents opportunity
to be heard. The reason for the exceptions is to protect the heirs. The action to
claim the legitimacy may be brought by the child during his or her lifetime and
shall be transmitted to the heirs should be the child die during the minority or a
state of insanity. in this case, the heirs shall have a period of five (5) years
within which to institute the action. The action commenced by the child shall
survive notwithstanding the death of either or both of the parties. The child can
bring the action during his or her entire lifetime and even after the death of the
parents. In other words, the action does not prescribe as long as he lives.

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ART.269 CHAPTER 3 of the Code of the Philippines

TOPIC: LEGITIMATED CHILDREN
Art. 269. Only natural children can be legitimated. Children born outside wedlock
of parents who, at the time of the conception of the former, were not disqualified by
any impediment to marry each other, are natural.

DISCUSSION:

In effect only natural children, without need o recognition can be

legitimated. The provision, which originated from the law of Toro. requiring
recognition of the child in legitimation did not ind logical support. It is more logical
to conclude that the marriage of the parents of the child is an indubitable
demonstration o their recognition of such child as their own, assuming that there is
compliance with the basic requisite that such child was conceived at the time when
the parents did not suffer any impediment from marrying each other.

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ART.270 CHAPTER 3 of the Code of the Philippines

TOPIC: LEGITIMATED CHILDREN
Art. 270. Legitimation shall take place by the subsequent marriage between the
parents
DISCUSSION:

It is the subsequent valid marriage between the parents of the natural

child or children that is the operative act of legitimation. The annulment if this
marriage which maybe violable (valid until set a side by a competent court) will not
destroy the legitimation o the child or children which by the operative act o
marriage, had already taken affect.
Legitimation
Release Date:

Monday, January 2, 2012

Who are legitimate children?

Children born after one hundred and eighty days following the celebration of the
marriage, and before three hundred days following its dissolution or the separation
of the spouses shall be presumed to be legitimate. (Art. 225, Civil of the
Philippines).

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

Children conceived as a result of artificial insemination of the wife with the sperm of
the husband or that of a donor are likewise legitimate children of the husband and
his wife, provided that both of them authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the birth certificate of
the child. (Art. 164, Family Code of the Philippines).

Is the child considered legitimate although the mother may have declared against
its legitimacy?

The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress. (Art. 167,
Family Code of the Philippines)

What are the rights of legitimate children?

Legitimate children shall have the right :

To bear the surnames of the father and the mother:

To receive support from them, from their ascendants, and in a proper case, from
their brothers and sisters, in conformity with article 291 and,

To the legitimate and other successional rights which this Code recognize in their
favor. (Art. 263, Civil Code of the Philippines)
Does the practice of some Filipino Muslim of using the first name of the father as the
family name of the children violate the provisions on the use of surnames?

Legitimate child have the right to bear the surname of the father and of the mother.
(Art. 62(a) of P.D. 1083 (Code of Muslim Personal Law of the Philippines).

The provisions of the law governing use of surnames were formulated in order to
avoid confusion in the use of surnames, and to settle doubts on their proper use
(Report of Code Commission, p51, cited in Tolentino, supra, p.721), we are unable to
find any provision in the Muslim Code or the Civil Code which would authorize the
use of the name as the family name of surname of the children of Muslim parents,
for purposes of registration, especially in accomplishing the Certificate of Live Birth
(Mun. Form No.102).

Accordingly, unless the law is amended to reflect the alleged tradition or practice,
the children should bear the family or surname of their father for registration
purposes. (Opinion No. 112, Series of 1985, from the Minister of Justice Estelto P.
Mendoza)

Who are illegitimate children?

Children conceived and born out a valid marriage are illegitimate, unless otherwise
provided in the Family Code (Art. 165, F.C.)

Who are considered illegitimate children?

The following are illegitimate children :

Children born to couples who are not legally married or of common-law marriages;

Children born of incestuous marriages;

Children born of bigamous marriages;
Children born of adulterous relations between parents;
Children born of marriages void for reason of public policy under Art. 38 of the
Family Code;
Children born of couples below 18, whether they are married (which married is void)
or not; and,
Children born of other void marriages under Art. 15 unless otherwise provided.
(OCRG Cir. No. 89-13 dated July 17, 1989)
What is the rule on the registration of births of illegitimate children who were born
prior to August 3, 1988?

Illegitimate children as defined under the Civil Code of the Philippines who were
born prior to August 3, 1988 and whose births were not previously registered shall
be registered under the following rules in addition to those provided for delayed
registration of births;

Recognition or acknowledgement of an illegitimate child may be made jointly by the

father and mother or by only one of them (Art. 276, C.C.) When the father or the
mother makes the recognition separately, he or she shall not reveal the name of the
person with whom he or she had the child; neither shall he or she state any
circumstance whereby the other parent may be identified (Art. 280, C.C.)
An illegitimate child has the right to bear the surname of the parent recognizing him
(par. 1, Art. 282, C.C.) However, an illegitimate child who is not recognized or
acknowledged by both parents in accordance with law shall be registered under the
surname of the mother (Opinion No. 147 s. 1986, Minister of Justice)
Recognition shall be made in the record of birth, a will, statement before a record,
or in any authentic writing (Art. 278, C.C.). If made on record of birth at the time of
registration the affidavit of acknowledgement printed at the back of the certificate
of live birth shall be signed and sworn to jointly by the parents of the illegitimate
child, or only by the mother if the father refuses (Sec. 5, Act No. 3753).
May an illegitimate child born on or after August 3, 1988 carry the surname of the
father if the father executed an affidavit of admission of paternity?

Illegitimate children born on or after August 3, 1988 shall use the surname of the
mother. (Section 1 OCRG Circular No.4 dated October 11, 1988).

The father of an illegitimate child who wishes to have his name indicated in item 13
of the Certificate of Live Birth shall execute an affidavit of Admission of Paternity in
lieu of the affidavit of acknowledgement. The purpose of affidavit of admission of
paternity is for the support and succession only, and it does not entitle the
illegitimate child to use the surname of his father. (Section 2 OCRG Circular No. 4
dated October 11, 1988)

What is the rule on the registration of births illegitimate children who were born on
August 3, 1988 and thereafter?

The following rules shall govern the registration of illegitimate children who were
born on August 3, 1988 and thereafter:

An illegitimate child shall use the surname of his mother (Art. 176, F.C.) regardless
of whether or not his father admits paternity (opinion of Civil Code Revision
Committee, September 23, 1988).
The name of the father of the illegitimate child may be indicated on the birth
certificate of the latter whenever the former executes an affidavit of admission of
paternity, provided that such affidavit shall not affect the naming of the illegitimate
child (opinion of the Civil Code Revision Committee, September 23, 1988)
The affidavit mentioned in the immediately preceding paragraph, if executed by the
father shall be permanently attached to and shall form part of the birth certificate of
the illegitimate child. The birth certificate in such a case must have a remark "With
Attached Affidavit of Admission of Paternity" impressed with a rubber stamp at the
upper left-hand margin and duly signed by the local civil registrar or authorized civil
registry personnel.
Illegitimate children falling under this classification who were not registered within
the prescribed period of registration shall comply with the requirement of delayed
registration of births. (Section 4 Circular No. 89-13 dated 17 July 1989)
What consist the full name of an individual?

The full name of an individual consists of a first or given name, a middle name
which is the mother's maiden surname and the last name which is generally the
father's surname. Entries of names in the birth certificate should, as much as
possible and legally permissible, follow the above convention. (I.M. p 14)

Is it permissible to leave the first name of the child blank in case the parents cannot
decide on the name yet?

If until registration the parents are not decided on the first name for the child, write
only the middle and last name but never write "Baby Boy or Baby Girl". Entries such
as "Jr." of "II" affixed to an individual's first name to distinguish him from an
ascendant of the same name are acceptable as added identification. (I.M. p. 14-15).

What are the rules in making the entry of the last name of a child?

For a child born to a legally married couple, write the last name of father ;
For a child born to a mother who is not married during a pregnancy and at the time
of birth, the following rules shall apply:
If the child was born on or after 3 August 1988, write the last name of the mother.
If the child was born before 3 August 1988:
Enter the last name of the father if both parents execute the Affidavit of
Acknowledgement at the back of the Certificate of Live Birth.
Enter the last name of the acknowledging parent if either the father or the mother
alone acknowledges the child. In this case, no information should lead to the
identity of the parent not acknowledging the child, that is, the space provided for
the information about the parent must have "Not Applicable" or "N.A." as entry".
If no parent acknowledges the child, enter the last name of the mother (I.M. p. 1516)
What is the rule in the registration of the place of birth?

For births that occur in hospital, clinic or institution, write the complete name and
address of the hospital or institution.
For births that did not occur in any of the above institution, write the complete
address where the birth occurred. (I.M. p. 17)
Is it important to indicate the date and place of the marriage of the parents in the
certificate of live birth?

It is extremely important that this item (Item 18) is not left blank, otherwise, the
legitimacy of the child will be questioned.

If the parents have forgotten the exact date of their marriage, enter the
approximate year. If they cannot approximate the year, enter "forgotten".

Enter "Not Applicable" if the child has unknown father or mother.

Enter "Unknown", "Don't Know" or "D.K." if the informant could not supply the
information.

Enter "Not Married" if the parents of the child are not legally married on or before
the birth of the child and their names appeared in Item 6 and Item 13. (I.M. p. 2425)

What is the implication if Item 22 (Received at the Office of the Civil Registrar) is not
signed by the receiver?

The signature affixed in this item indicates that the certificate was filed and
accepted by the civil registrar. The date indicates whether the birth certificate was
filed within the reglamentary period.

The absence of the necessary signature in Item 22 can be a basis for questioning
the validity of the certificate. (I.M. p.27)

What is meant by an Out-of-town Reporting of Birth?

An out-of-town reporting of birth occurs when the Certificate of Live Birth is

presented to the civil registrar of a city or municipality which is not the place of
birth, not for registration but to be forwarded to the civil registrar of the city or
municipality where the birth occurred and where it should be registered.

The duty of accepting Certificate of Live Birth for out-of-town reporting by the
concerned civil registrar may also be performed by the Civil Registrar-General of by
his authorized representatives who are the Regional Administrators and Provincial
Statistics Officers of the National Statistics Office. (Rule 20, A.O. No. 1 s 1993).

What are the requirements to be complied with by the concerned parties in the outof-town reporting of birth?

The party who is applying for out-of-town reporting of birth shall execute an affidavit
declaring therein, among other things, the facts of birth and the reasons why said
birth was not recorded in the civil registrar of the city or municipality where it
occurred. The affidavit which must be attested by at least two (2) witnesses, shall
serve as an application for registration shall be submitted to the civil registrar
together with four (4) copies of the Certificate of Live Birth;
If the application is for delayed registration of birth, the requirements under the
rules governing delayed registration of birth shall also be complied with;
The civil registrar or the authorized representative of the National Statistics Office to
the application for out-of-town reporting is presented may require from the
applicant such other supporting papers as may be considered necessary in
establishing the facts of birth especially those pertaining to the date and place of
birth and filiation of the child whose birth is being sought for registration;
The Certificate of Live Birth, for the purpose of this Rule, shall have the marginal
annotation in the form of the following remark : "Registered pursuant to Rule 20 of
the Administrative Order No. 1, s. 1993" ; and,
The civil registrar of the city or municipality where the out-of-town reporting is
sought, upon receipt of the Certificate of Live Birth and pertinent papers, shall
proceed with the registration. He shall indicate the date when he received the

document, and shall sign over his printed name in appropriate space in the
Certificate of Live Birth. When the Certificate of Live Birth has been duly recorded
and assigned a registry number, the civil registrar shall send back the original copy
to the civil registrar or the authorized representative of the National Statistics Office
who forwarded the Certificate of Live Birth, who in turn shall give the copy bearing
the registry number to the registrant. (Rule 20, A.O. Order No. 1 S. 1993)
What is the legitimation and who can be legitimated?

Legitimation is a remedy by means of which those who in fact were not born in
wedlock and should, therefore, be considered illegitimate, are, by fiction, considered
legitimate, it being supposed that they were born when their parents were already
validly married. (1 Manresa 550, as cited on p. 251, Handbook on Family Code of the
Philippines, Alicia V. Sempio-Diy).
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 impediments to marry
each other, may be legitimated. (Art. 177, Family Code)
Legitimation of children by subsequent marriage of parents shall be recorded in the
civil registry office of the place where the birth was recorded. The requirements for
registration of legitimation of illegitimate children are:
a) Certificate of Marriage;

b) Certificate of Live Birth of the child;

c) Acknowledgement (not required for illegitimate children born on or after 3 August

1988);

d) Affidavit of legitimation executed by both parents which shall contain the

following facts:

(1) the names of the parents;

(2) that at the time when child was conceived, the aforesaid parents could have
contracted marriage, and that they subsequently contracted marriage,

(3) the date and place when such marriage was solemnized;

(4) the name of the officer who officiated the marriage;

(5) the city or municipality where such marriage was recorded;

(6) the name of the child to be legitimated, and the other facts of birth;

(7) the date and place where the birth of the child was registered; and

(8) the manner by which the child was acknowledged by the parents which may be
in the childs record of birth, in a will, a statement before a court of record, or in
any authentic writing (not required for illegitimate children born on or after 3 August
1988).

For a child to be considered legitimated by subsequent marriage, it is necessary

that:
the parents could have legally contracted marriage at the time the child was
conceived ;
that the child has been acknowledged by the parents before or after the celebration
of their marriage ; and
the acknowledgement has been made with the consent of the child, if age or with
the approval of the court, if a minor, unless it has been made in the certificate
before a court of record, or in any authentic writing.
The original family name of the child as appearing in Registrar of Births shall not be
erased or deleted, but in the remarks space shall be written "Legitimated by
Subsequent Marriage" indicating the family name which the child shall bear by
virtue of the legitimation also giving reference to the entry number in the Registrar
of Legal Instruments.

When the interested party requests a copy of the birth certificate of a legitimated
child a certified copy of the certificate of Live Birth bearing the annotation
"Legitimated by Subsequent Marriage on ________ (date of marriage) at __________
(place of marriage)" or a certified transcription using standard form from the
Register of Births bearing the effects of legitimation and the same annotation
indicated in the certified true copy shall be issued. (Rule 66, A.O. No. 1 S. 1993)

How does legitimation take place?

Legitimation shall take place by a subsequent valid marriage between parents. The
annulment of a voidable marriage shall not affect the legitimation (Art. 178, Family
Code of the Philippines).

Family Code of the Philippines: Primer on legitimation

Article 177 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 childs 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 childs 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.

Illegitimate Children
1.
What is an illegitimate child?
A child who is born of parents not married to each other or born out of wedlock is an illegitimate child.

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the
Family Code of the Philippines (Article 165 of the Family Code).
2.
Who are considered illegitimate children?
The following are considered illegitimate children:
1.
Children born to couples who are not legally married or of common-law marriages;
2.
Children born of incestuous marriages;
3.
Children born of bigamous marriages;
4.
Children born of adulterous relations between parents;
5.
Children born of marriages void for reason of public policy under Article 38 of the Family Code;
6.
Children born of couples below 18, where they are married or not;
7.
Children born of other void marriages under Article 15 unless otherwise provided.
(OCRG. Cir. No. 89-13, 17 July 1989)
3.
Are there different kinds of illegitimate children?
Yes. There are two kinds of illegitimate children. They are:
1. An unrecognized illegitimate child the child is not acknowledged by his biological father,
and thus has to use the surname of his mother.
2. A recognized illegitimate child the child is recognized or acknowledged by his father. He is
allowed to use the surname of his father. The filiation can be recognized by the father through:
i)
The recognition of the father of the childs paternity through the record of birth appearing
in the civil register;
ii)
iii)

When admission is made in a public document;

When admission is made in a private handwritten document.

4.
What do you mean by paternity and filiation?
Paternity and filiation refers to the relationship existing between parent and child. Filiation may be by
nature or adoption. Children may be legitimate or illegitimate.
5.
How can filiation be proven?
Filiations of legitimate (or illegitimate) children are established by any of the following:
1.
2.

The record of birth appearing in the civil registry or a final judgment

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

6.
What if the child has no such proofs to prove his filiation to his biological father?
In the absence of any of the above evidence, such legitimate or illegitimate filiation may be proved by:
1.
2.

Open and continuous possession of the status of a legitimate or illegitimate child;

Any other means allowed by the Rules of Court and special laws. (Article 172 of the Family
Code)

7.
Are illegitimate children entitled to support?
If the child has been recognized by his father, the child is entitled to support. But if he is an
unrecognized child, the relationship between the child and the father must first be proved. Once
paternity has been proven, only then the child is entitled and can ask for child support from the father.

8.
Define Support as used in Philippine laws.
Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation in keeping with the financial capacity of the family.
The amount to be granted in granting the amount of support are based on two factors
1.
The resources or financial capacity of the family or the giver
2. The indispensable needs of the recipient.

9.
I have a 5 year old daughter and her father had never contributed a centavo since her
birth. We are not married but he acknowledged her paternity in a handwritten love letter.
Can I ask for support for my child, including the support that she was entitled to since she
was born?
Yes. Your daughter is entitled to support starting from her birth. The fathers acknowledgement of his
paternity, even though it is a private document, proved his filiation to your daughter. Thus, as her
father, he is obliged to support his daughter.

The law provides that the obligation to give support shall be demandable from the time the person
who has a right to receive the same needs it for maintenance, but it shall not be paid except from the
date of judicial or extra-judicial demand. (Baltazar vs. Serfino, 14 SCRA 820)
10. I have a child which I am obliged to support. What are my options in so far as giving
support is concerned?
As the person obliged to give support, you shall have the option to fulfill the obligation either:
1.
2.

by paying the allowance fixed, or

by receiving and maintaining in the family dwelling the person who has a right to receive
support.
The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto.
11. When can an illegitimate child use the surname of his father?
Illegitimate children can use the surname of their father if:
1.
2.

Their filiation has been expressly recognized by the father through the record of birth
appearing in the civil registrar;
When an admission in a public document or a private handwritten instrument is made by the
father.

12. Who may claim the legitimacy of the child?

The persons who can claim the legitimacy of the child are:
1.
2.
i)
ii)
iii)

Child himself it is the exclusive and personal right of the child which may be brought
anytime during his lifetime;
Heirs of the child it is transmitted to the heirs of the child within a period of 5 years in case
The child dies during minority;
The child is in a state of insanity;
The child dies after action has already been instituted.

13. As a father, I question the paternity of my wifes youngest son, who I believe was sired
by her lover. How can I impugn the legitimacy of the child?
The following are the grounds on impugning the legitimacy of a child:

1.
i)
ii)

Physical impossibility of the husband to have sexual intercourse with his wife within the first
120 days of the 300 days immediately preceding the childs birth due to:
Physical incapacity of the husband;
The husband and wife were living separately; or

iii)

The serious illness of the husband which absolutely prevented sexual intercourse.

1.
2.

Biological or scientific proof that the child could not have been that of the husband; and
Written authorization or ratification of either parent for artificial insemination was obtained
through mistake, fraud, violence, intimidation or undue influence (Article 166 of the Family
Code).

14. Who may impugn the legitimacy of the child?

Only the husband may impugn the legitimacy of the child. However, the heirs of the husband may
impugn the legitimacy of the child under the following circumstances:
1.
2.
3.

The husband dies after the end of the prescription of the action;
The husband dies after filing complaint; and
The child was born after the husbands death.

15. Is there a prescriptive period to impugn the legitimacy of the child?

The following are the prescriptive periods to impugn the legitimacy of the child:
1.

One year from the knowledge of birth or recording in the civil register, if the husband or
heirs live in the SAME city/municipality;
2.
Two years if both reside in the Philippines;
3.
Three years if the childs birth took place or was recorded in the Philippines while the
husband has his residence; or vice versa
(Article 170 of the Family Code)
16. Can a mother question the legitimacy of her own child?
No. A mother cannot question the legitimacy of her own child. An assertion by the mother against the
legitimacy of her child cannot affect the legitimacy of the child born or conceived within a valid
marriage. A mother has no right to disavow a child because maternity is never uncertain.
(Concepcion v. CA, G.R. No. 123450, 31 August 2005)
17. When can the child bring the action for recognition of his status?
The action for recognition may be brought during the lifetime of the child when the filiation of the
illegitimate child is established by:
1.
2.
3.
4.

A record of birth in the civil register;

A final judgment
An admission of filiation in a public document
A private handwritten instrument signed by the parent concerned.

The action for recognition would be brought during the lifetime of the alleged parent if the action is
based on:
1.
2.

The open and continuous possession of the status of an illegitimate child

Any other means allowed by the rules or special laws.

18. I am an unrecognized illegitimate child. My biological father abandoned my mother

upon learning of her pregnancy. Is there any way I can get him to recognize me so we can
be entitled to child support?
When a man refuses to recognize a child as his, there is no other recourse but to file a petition
compulsory recognition of an illegitimate child in the courts and only when filiation is proved, only then
the courts can force a man to recognize his child. The Petition must be filed during the lifetime of the
alleged parent.

If the parent and son relationship is in issue, the relationship should be established first before
support can be demanded. The civil status of sonship being denied and this civil status, from which
the right to support is derived, being in issue, it is apparent that no effect can be given to such a claim
until an authoritative declaration has been made as to the existence of the cause. (Francisco vs.
Zandueta, 61 Phil. 752)
There must be a declaration of the status of the child from which the right to support is derived and
before support can be ordered. Such a declaration may be provisional, that is, by affidavits.
(Mangulabnan vs. IAC, 185 SCRA 760)
When there is no proof of filiation, the man does not have to recognize the child and furthermore,
support may not be granted since there is no basis that the man is the father.

19. What are examples of these moral or legal obstacles?

The following are examples of moral or legal obstacles:
1.
2.
3.
4.
5.

When the recipient is an illegitimate child and the person obliged to giver support is legally
married to a woman not the mother of the child. (Pascual vs. Martinez, C.A. 37 O.G. 2418)
When the father has been shown to have previously maltreated the child severely. (Pascual
vs. Martinez, C.A. 37 O.G. 2418)
When the wife is maltreated for refusing to perform unchaste acts with the husband. (Goitia
vs. Campos Rueda, 35 Phil. 576)
When the father has been criminally guilty of seduction (U.S. vs. Alvir, 9 Phil. 576)
When the wife cannot live with the husband and her mother-in-law because of constant
quarrels arising from in-law relationship. (del Rosario vs. Del Rosario, C.A. 46 O.G. No. 12,
p. 6122)

20. What is legitimation?

Legitimation is a remedy by means of which those who in fact were not born in wedlock and should,
therefore, be considered illegitimate, are, by fiction, considered legitimate, it being supposed that they
were born when their parents were already validly married. It shall take place only by the subsequent
valid marriage between the biological parents. (P. 251, Handbook on Family Code of the
Philippines, Alicia V, Sempio-Diy).
21. 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 impediments to marry each other, may be legitimated(Article
177 of the Family Code of the Philippines).
22. What is the process of legitimation?
Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a
voidable marriage shall not affect the legitimation (Article 178 of the Family Code of the
Philippines).

23. What are the requisites of legitimation?

The requisites of legitimation are:
1.
2.

3.

The child is illegitimate.

The parents at the time of the childs conception are not disqualified by any impediment from
marrying each other or were so disqualified only because either or both of them were below
eighteen (18) years of age.
There is a valid marriage subsequent to the childs marriage.

24. What is the status of children conceived by artificial insemination?

The status of the child is legitimate, if both the spouses authorized or ratified such procedure in a
written instrument, executed and signed, before the birth of the child and recorded. (Article 164 of
the Family Code)
25. What if one of the parent of a child born of artificial insemination, declare that their
consent was induced by fraud?
The status of the said child would be illegitimate as one of the conditions were not met.

26. What is the status of a child who was born after 300 days of the termination of the first
marriage of his mother and contracted a second marriage?
The child wound belong to the father of the first marriage, if the child was born before the lapse of
180 days after the celebration of the second marriage, provided that it was born within 300 days after
termination of the first marriage.

However, the child would belong to the father of the second marriage, if the child was born after 180
days following celebration of the second marriage, whether born within 300 days after termination of
the first marriage, or afterwards. (Article 168 of the Family Code)
27. I have a 3 year old son with a married man. He wants custody of the child. Would the
courts grant him custody?
No, an illegitimate child shall be under the sole custody of the mother. Thus, regardless of the child
being wanted by the father, it is the mother who has the parental authority of the child and has sole
custody over him. Only when it can be proved that the mother is unfit to have custody of the child, the
custody will then be awarded to the father.

Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. (Article 176 of the Family Code of
the Philippines)
Parental authority is the natural right and duty of parents over the person and property of their minor
children which include the caring and rearing of them for civic consciousness and efficiency and
development of their moral, mental and physical character and well-being (Article 209 of the Family
Code of the Philippines).
28. What if the child was recognized by the father and contains his surname in the birth
certificate?

The child is still considered illegitimate as he was conceived and borne out of wedlock. Thus, being
illegitimate, he is placed under the custody of his mother to the exclusion of even the childs biological
father.

Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. However, illegitimate children may use
the 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. (Article 176 of the Family Code of the
Philippines)
29. I have a 7 year old son. His biological father just died leaving his wife and 2 daughters.
Will my child have a share in the estate?
Yes, your son is entitled to half the legitime of the legitimate child. Your son will get half of what his
sisters would be getting. (Article 176 of the Family Code)

The Philippines is party to the Hague Convention on

Protection of Children and Co-operation in Respect of
Intercountry Adoption (Hague Adoption Convention).
Therefore all adoptions between The Philippines and the
United States must meet the requirements of the Convention
and U.S. law implementing the Convention.

Note: Special transition provisions apply to adoptions

initiated before April 1, 2008. Learn more.
Updated: October 2008
DISCLAIMER
WHO CAN ADOPT

To bring an adopted child to United States from The

Philippines, you must be found eligible to be an adoptive
parent by the U.S. Government. The U.S. Government
agency responsible for making this determination is the
Department of Homeland Security, U.S. Citizenship and
Immigration Services (USCIS). Learn more.
In addition to these U.S. requirements for adoptive parents,
The Philippines also has the following requirements for
adoptive parents:
Residency Requirements: U.S. citizens interested in
adopting a Filipino child while they are living in The
Philippines must be residents of The Philippines for at
least three years prior to the filing of the adoption
petition, maintain such residence until the adoption is
finalized, and posses a certificate of legal capacity to
adopt issued by the appropriate agency from the state of
residence. Prospective adoptive parents who meet these
requirements should file a petition for adoption with the
Philippines Court to begin the adoption process.

U.S. citizens not meeting these residency requirements will

have to adopt through the Inter-Country Adoption Board
procedures.
The Philippines Government may waive these requirements if
the prospective adoptive parent is a former Filipino citizen who
seeks to adopt a relative within the fourth degree of
consanguinity as defined by Philippines law, or the prospective
adoptive parent is a person who seeks to adopt the legitimate
child of his/her Filipino spouse.
Age Requirements: There is no age limit for married
prospective adoptive parents. Single prospective
adoptive parents must be at least 24 years old at the
time of filing the adoption petition.
Marriage Requirements: If prospective adoptive
parents are married, they must file jointly for adoption.
Income Requirements: There are no minimum income
requirements set by The Philippines. Prospective
Adoptive Parents must prove financial stability.

 Other Requirements: Prospective adoptive parents

must not have ever been convicted of a crime involving
moral turpitude. Parents must be in a position to provide
proper care and support and to give necessary moral
values and example to all his/her children, including the
child to be adopted. Prospective adoptive parents agree
to uphold the basic rights of the child as embodied under
The Philippines laws and the U.N. Convention on the
Rights of the Child.

WHO CAN ADOPT

The Philippines has specific requirements that a child must
meet in order to be eligible for adoption. You cannot adopt a
child in The Philippines unless he or she meets the
requirements.

In addition to these requirements, a child must meet the

definition of an orphan under U.S. law for you to bring him or

her home back to the United States. Learn more about these
U.S. requirements.
Note: The adoption of relatives is common in Philippine
culture.
Eligibility Requirements:
Relinquishment Requirements: A child is
committed by way of the Deed of Voluntary
Commitment, a document used by DSWD asking for
signature from the biological parents prior to matching
the child with a prospective adoptive parent. The
document is essentially the consent of the parent(s),
releasing the child to DSWD for subsequent adoption. In
the event that the child is abandoned or neglected and
no parent is available to sign the Deed of Voluntary
Commitment, the DSWD instead obtains a commitment
order from the court. This endorsement certifies that
intercountry adoption is in the best interests of the child.

HOW TO ADOPT
The Philippines Adoption Authority
The Inter-Country Adoption Board
The Process
Because The Philippines is party to the Hague Adoption
Convention, adopting from The Philippines must follow a
specific process designed to meet the Conventions
requirements. A brief summary of the Convention adoption
process is given below. You must complete these steps in the
following order so that your adoption meets all necessary
legal requirements.
Note: If you filed your I-600a with The Philippines before
April 1, 2008, the Hague Adoption Convention may not apply
to your adoption. Your adoption could continue to be
processed in accordance with the immigration regulations for
non-Convention adoptions. Learn more.
1. Choose an Accredited Adoption Service Provider
2. Apply to be Found Eligible to Adopt
3. Be Matched with a Child

4. Apply for the Child to be Found Eligible for Adoption

5. Adopt the Child (or Gain Legal Custody) in The Philippines
6. Bring your Child Home

1. Choose an Accredited Adoption Service Provider

The first step in adopting a child from The Philippines is to
select an adoption service provider in the United States that
has been accredited. Only these agencies and attorneys can
provide adoption services between the United States and The
Philippines. Learn more .

2. Apply to be Found Eligible to Adopt

After you choose an accredited adoption service provider, you
apply to be found eligible to adopt (Form I-800A) by the U.S.
Government, Department of Homeland Security, U.S.
Citizenship and Immigration Services (USCIS). Learn how.
Once the U.S. Government determines that you are eligible
and suitable to adopt, you or your agency will forward your
information to the adoption authority in The Philippines. The

Philippines adoption authority will review your application to

determine whether you are also eligible to adopt under
Philippino law.
3. Be Matched with a Child
The Philippines adoption authority matches the prospective
adoptive parents with a child. The Central Authority prepares
a report that determines that: the child is adoptable, the
envisaged placement is in the best interest of the child, the
birth parent or legal custodian has freely consented in writing
to the adoption, and no payment has been made to obtain
the consent necessary for the adoption to be completed.
4. Apply for the Child to be Found Eligible for
Adoption
After you accept a referral to a child, you will apply to the U.S
Government, Department of Homeland Security, U.S.
Citizenship and Immigration Services (USCIS) for provisional
approval to adopt that particular child (Form I-800). USCIS
will determine whether the child is eligible under U.S. law to
be adopted and enter the United States. Learn how.

After this, your adoption service provider or you will submit a

visa application to a Consular Officer at the U.S. Embassy.
The Consular Officer will review the childs information and
evaluate the child for possible visa inelegibilities. If the
Consular Office determines that the child appears eligible to
immigrate to the United States, he/she will notify the
Philippines adoption authority (Article 5 letter). For
Convention country adoptions, prospective adoptive parent(s)
may not proceed with the adoption or obtain custody for the
purpose of adoption until this takes place.
Remember: The Consular Officer will make a final decision
about the immigrant visa later in the adoption process.
5. Adopt the Child (or Gain Legal Custody) in The
Philippines
Remember: Before you adopt (or gain legal custody of) a
child in The Philippines, you must have completed the above
four steps. Only after completing these steps, can you
proceed to finalize the adoption or grant of custody for the
purpose of adoption in The Philippines.

The process for finalizing the adoption (or gaining legal

custody) in The Philippines generally includes the following:
Role of The Court: The Regional Trial Courts are
responsible for domestic adoptions in The Philippines.
This is where prospective adoptive parents file adoption
petitions.
Adoption Application: To start the Philippine adoption
process, prospective adoptive parents or their accredited
FAA must contact the Philippine Inter-country Adoption
Board (ICAB).

o Application: The prospective adoptive

parents file an application with the ICAB
through a United States adoption agency.
o Endorsement of Child for Inter-Country
Adoption: The Department of Social

Welfare and Development (DSWD)

should endorse to the ICAB a child who
has been previously committed to the
Philippine Government. See
Relinquishment of the Child for a
description of committed.
o Matching: The Inter-Country Adoption
Placement Committee matches the child
with a person or couple interested in
adopting and refers its proposal to ICAB
for approval. If the match is approved,
the concerned adoption agency in the
United States shall be sent a notice of
matching proposal.

o The prospective adoptive parents shall

notify the adoption agency in the United
States of his/her decision within 15 days
of receipt of the matching proposal.
Note: The Philippine Inter-Country
Adoption Act prohibits contact between
the prospective adoptive parents and
childs parents /guardians or custodians.
o Placement Authority: The ICAB shall
issue the Placement Authority within five
working days upon receipt of the
prospective adoptive parents
acceptance of the matching proposal.

o Application for Immigrant Visa: The child

appears at the Embassy for his/her
immigrant visa interview.
o Child travels to the United States: The
adoptive parents must escort the child
from The Philippines to the United
States.
o Supervision of Trial Custody: Upon
assuming custody of the child, the
adoptive parents enter a six-month trial
period where the accredited adoption
agency in the United States monitors the
childs welfare.

o Petition for Adoption: After completion of

the trial custody period, the adoptive
parent should file a petition for adoption
before the court in the United States.
o Final Adoption Decree: The final U.S.
adoption decree should be submitted to
ICAB within a month after its issuance.
Time Frame: Adoption processing depends upon many
variables, including the availability of children to be
matched with prospective adoptive parents, the number
of prospective adoptive parents on the waiting list, and
the caseload of social service agencies and the courts.
Adoption Fees: Fees can vary widely depending upon
the adoption agency used.

 Documents Required: The following documents,

which must be written and officially translated into
English, shall accompany the prospective adoptive
parents application for adoption:

o Family and Home Study Reports on the

family and home of the prospective
adoptive parents;
o Birth Certificates of prospective adoptive
parents;
o Marriage certificate or Decree of
Absolute divorce, if applicable;
o Written consent of the prospective
adoptive parents biological or adopted
children who are ten years of age or

over, witnessed by the social worker

after proper counseling;
o Physical and medical evaluation by a
duly licensed physician and
psychological evaluation by a
psychologist
o Latest income tax return or any other
documents showing financial capability;
o Clearance issued by the police of other
proper Government agency of the place
of residence;
o Character reference from the local
church minister/priest, employer, or a

non-relative member of the immediate

community who have known the
prospective adoptive parents for at least
five (5) years;
o Certification from the U.S. Department of
Justice or other appropriate Government
agency that the prospective adoptive
parents are qualified to adopt under their
national law and that the child to be
adopted is allowed to enter the country
for trial custody and reside permanently
once adopted; and

o Recent postcard-size pictures of the

prospective adoptive parents and all
immediate family.

Note: Additional documents may be requested.

6. Bringing Your Child Home
Now that your adoption is complete (or you have obtained
legal custody of the child), there are a few more steps to take
before you can head home. Specifically, you need to apply
for several documents for your child before he or she can
travel to the United States:
Birth Certificate
You will first need to apply for a new birth certificate for your
child, so that you can later apply for a passport. Your name will
be added to the new birth certificate.
Philippines Passport
Your child is not yet a U.S. citizen, so he/she will need a travel
document or Passport from Philippines.

U.S. Immigrant Visa

After you obtain the new birth certificate and passport for your
child, you also need to apply for an U.S. visa from the United
States Embassy for your child. After the adoption (or custody
for purpose of adoption) is granted, visit the U.S Embassy for
final review and approval of the childs I-600 petition and to
obtain a visa for the child. This immigrant visa allows your
child to travel home with you. As part of this process, the
Consular Officer must be provided the Panel Physicians
medical report on the child if it was not provided during the
provisional approval stage. Learn more.
Child Citizenship Act
For adoptions finalized abroad: The Child Citizenship Act of
2000 allows your child to acquire American citizenship when
he or she enters the United States as lawful permanent
residents.
For adoptions to be finalized in the United States: The Child
Citizenship Act of 2000 allows your child to typically acquire
American citizenship when the U.S. state court issues the

final adoption decree. We urge your family to finalize the

adoption in a U.S. State court as quickly as possible.
*Please be aware that if your child did not qualify to become
a citizen upon entry to the United States, it is very important
that you take the steps necessary so that your child does
qualify as soon as possible. Failure to obtain citizenship for
your child can impact many areas of his/her life including
family travel, eligibility for education and education grants,
and voting.
Learn more about the Child Citizenship Act.
Statistics

TRAVELING ABROAD

Applying for Your U.S. Passport

A valid U.S. passport is required to enter and leave The
Philippines. Only the U.S. Department of State has the
authority to grant, issue, or verify U.S. passports.
Getting or renewing a passport is easy. The Passport
Application Wizard will help you determine which passport
form you need, help you to complete the form online,
estimate your payment, and generate the form for you to
printall in one place.
Obtaining Your Visa
In addition to a U.S. passport, you also need to obtain a visa.
A visa is an official document issued by a foreign country that
formally allows you to visit. Where required, visas are
attached to your passport and allow you to enter a foreign
nation.

To find information about obtaining a visa for The Philippines,

see the Department of States Country Specific Information .
Staying Safe on Your Trip
Before you travel, it's always a good practice to investigate
the local conditions, laws, political landscape, and culture of
the country. The State Department is a good place to start.
The Department of State provides Country Specific
Information for every country of the world about various
issues, including the health conditions, crime, unusual
currency or entry requirements, and any areas of instability.
Staying in Touch on Your Trip
When traveling during the adoption process, we encourage
you to register your trip with the Department of State. Travel
registration makes it possible to contact you if necessary.
Whether theres a family emergency in the United States, or
a crisis The Philippines, registration assists the U.S. Embassy
or Consulate in reaching you.
Registration is free and can be done online .

AFTER ADOPTION
What does The Philippines require of the adoptive
parents after the adoption?
According to Philippine law, after the adoptive parents escort
the child to the United States and assume custody of the
child, they enter a six-month trial period where the
accredited adoption agency in the United States monitors the
childs welfare. After adoptive parents complete the trial
custody period, the adoptive parent should file a petition for
adoption before the court in the U.S. The final U.S. adoption
decree should be submitted to the ICAB within a month after
its issuance.
What resources are available to assist families after
the adoption?
Many adoptive parents find it important to find support after
the adoption. Take advantage of all the resources available
to your family -- whether its another adoptive family, a
support group, an advocacy organization, or your religious or
community services.

Here are some good places to start your support group

search:

LEGAL SUPPORT FOR THE CHILD AND R.A. 9262

By: Atty.Fred | July 22, 2006 in Criminal Law, Family Law, Litigation
167 Replies | Related posts at the bottom of article

Through all the family cases that weve handled, weve come to accept, without discounting the
contrary, the sad fact that bad blood exists between the opposing parties (e.g., estranged spouses in
annulment/separation/property cases, siblings and relatives in estate proceedings). In particular, with
respect to custody-support cases over children, its easily understandable that custody is one of the
more contested issues. However, the issue on child support should not be as complicated.
Well, it shouldnt be as complicated, but reality makes it so.
Articles 195 and 196 of the Family Code enumerate the persons who are under obligation to support
each other, thus: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their
legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their
illegitimate children and the legitimate and illegitimate children of the latter; (5) Legitimate brothers
and sisters, whether of full or half-blood; and (6) Brothers and sisters not legitimately related,
whether of the full or half-blood, except only when the need for support of the brother or sister, being
of age, is due to a cause imputable to the claimants fault or negligence.
On the other hand, the amount of support should be in proportion to the resources or means of the
giver and the necessities of the recipient, pursuant to Articles 194, 201 and 202 of the Family Code:
Art. 194. Support comprises 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 referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and from school, or to and from place of
work.
Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in
proportion to the resources or means of the giver and to the necessities of the recipient.
Art. 202. Support in the cases referred to in the preceding article shall 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 youre a parent, it is safe to assume that you would want the best for your child and you wouldnt
hesitate to provide adequate support. However, its unfortunate that when it comes to support for the
common children (whether legitimate or illegitimate), so many fathers still fail (or worse, simply
refuse) to provide adequate support. Whatever the reason is, and regardless of whether or not these
reasons are correct, the problem became pervasive, so much so that Congress saw it fit to
criminalize (only against fathers) the withholding of support in certain instances. Not everyone
knows that this is covered under Republic Act No. 9262, otherwise known as the Anti-Violence
Against Women and their Children Act of 2004.
Not everyone also knows that R.A. 9262 provides for criminal sactions or penalties for failure to
provide support or withholding custody, in certain cases. Well, now you know.

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 picture to download a free PDF

newsletter on this topic.)
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? Heres 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.
(Please read below the 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 myprimer 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 husbands 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 of 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 spouses 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 spouses 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
Article 174 and Article 176 of the Family Code both provide that legitimate and illegitimate
children, respectively, 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.

Custody battles over children between grandparents and a mother or father

I have previously written about custody battles over children

between the father and the mother. In this post, I will discuss the following issues:

Family Code provisions on parental authority

Custody battles over children between a parent (either the father or the mother) on one side
and grandparents on the other side

Supreme Court ruling in Santos vs. CA: In custody battles, the law favors the parents over
the grandparents

Natural love of a parent outweighs that of the grandparents

If the grandparents have, by force or stealth, taken away the grandchild, how can the mother
or father regain custody?

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

The father's visitation right over an illegitimate child is personal to him; it cannot be exercised
by others, like the child's grandparents

Why do grandparents want custody of their grandchildren?

The apos may be so cute and lovable that some grandparents are fighting tooth and nail for their
custody. Sometimes it seems that grandparents are more interested in having custody rather than
the parents themselves. Some women have e-mailed me saying that their childs father do not
really want to have anything to do with the child but that it is the grandparents who want to
have the time and opportunity (if not outright custody) to be with the child.
Why? Someone said that it is because the grandparents already failed with their own children
and they want another chance to make up for their mistakes. This time, hopefully with their
grandchildren, they will be able to do things right.

Family Code provisions on parental authority

Articles 209 to 233 of the Family Code are the governing laws on parental authority. Below are some
articles relevant to our discussion:
Art. 209. Pursuant to the natural right and duty of parents over the person and property of their
unemancipated children, parental authority and responsibility shall include the caring for and rearing
them for civic consciousness and efficiency and the development of their moral, mental and physical
character and well-being.
Art. 210. Parental authority and responsibility may not be renounced or transferred except in the
cases authorized by law.
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their
common children. In case of disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.
Children shall always observe respect and reverence towards their parents and are obliged to obey
them as long as the children are under parental authority.
Art. 212. In case of absence or death of either parent, the parent present shall continue exercising
parental authority. The remarriage of the surviving parent shall not affect the parental authority over
the children, unless the court appoints another person to be the guardian of the person or property
of the children.
Art. 213. 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.

Family Code provisions on substitute parental authority of grandparents

Articles 214 and 216 of the Family Code speak clearly of situations when grandparents can exercise
substitute parental authority over their grandchildren:
Art. 214. 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.
Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise
substitute parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the property of the child becomes necessary,
the same order of preference shall be observed.

In custody battles, the law favors the parents over the grandparents
The Supreme Court in the case of Santos vs. CA (G.R. No. 113054 March 16, 1995) laid down the
rule that the law considers the natural love of a parent to outweigh that of the grandparents, such
that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise
substitute parental authority.
The facts of the Santos case
Petitioner Leouel Santos, Sr., (Santos for brevity) an army lieutenant, and Julia Bedia, a nurse by
profession, were married in Iloilo City in 1986. Their union produced only one child, Leouel Santos,
Jr. who was born July 18, 1987.
From the time the boy was released from the hospital until sometime thereafter, he had been in the
care and custody of his maternal grandparents, private respondents Leopoldo and Ofelia Bedia
(Bedias for brevity).

Santos and wife Julia agreed to place Leouel Jr. in the temporary custody of the latters parents, the
respondent Bedias. The latter alleged that they paid for all the hospital bills, as well as the
subsequent support of the boy because petitioner could not afford to do so.
The boys mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Santos alleged
that he was not aware of her whereabouts and his efforts to locate her in the United States proved
futile. The Bedias claimed that although abroad, their daughter Julia had been sending financial
support to them for her son.
On September 2, 1990, Santos along with his two brothers, visited the Bedia household, where
three-year old Leouel Jr. was staying. The Bedias claimed that through deceit and false pretensions,
Santos abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros
Oriental.
The Bedias then filed a Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.,
before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent.
After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day
awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia.
Santos appealed this order to the Court of Appeals (CA). In its decision dated April 30, 1992, the CA
affirmed the trial courts order. The Court of Appeals held that although there is no evidence to
show that petitioner (Santos Sr.) was depraved, a habitual drunkard or poor, he may
nevertheless be considered, as he is in fact so considered, to be unsuitable to be allowed to
have custody of minor Leouel Santos Jr. The CA ruled:
From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor
Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal
grandparents the petitioners herein. The petitioners have amply demonstrated their love and
devotion to their grandson while the natural father, respondent herein, has shown little interest in his
welfare as reflected by his conduct in the past. Moreover the fact that petitioners are well-off
financially, should be carefully considered in awarding to them the custody of the minor herein, lest
the breaking of such ties with his maternal grandparents might deprive the boy of an eventual
college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent
had never given any previous financial support to his son, while, upon the other hand, the latter
receives so much bounty from his maternal grandparents and his mother as well, who is now
gainfully employed in the United States. Moreover, the fact that respondent, as a military personnel
who has to shuttle from one assignment to another, and, in these troubled times, may have pressing
and compelling military duties which may prevent him from attending to his son at times when the
latter needs him most, militates strongly against said respondent. Additionally, the child is sickly and
asthmatic and needs the loving and tender care of those who can provide for it.

His motion for reconsideration having been denied, Santos appealed to the Supreme Court.
Issues before the Supreme Court
[1] Between Santos, the father, or the Bedias, the grandparents, who should properly be awarded
custody of the minor Leouel Santos, Jr.?
The mother of the minor Santos, Jr., is working in the United States while the father, Santos, Sr., is
present. Not only are they physically apart but are also emotionally separated. There has been no
decree of legal separation and Santoss attempt to obtain an annulment of the marriage on the
ground of psychological incapacity of his wife has failed.
[2] According to Santos, the CA erred in awarding custody of the boy to his grandparents and not to
himself. He contends that since the Bedias have failed to show that he was an unfit and unsuitable
father, substitute parental authority granted to the boys grandparents under Art. 214 of the Family
Code was inappropriate.
Santos added that the reasons relied upon by the Bedias in having custody over the boy, were flimsy
and insufficient to deprive him of his natural and legal right to have custody.
[3] On the other hand, the Bedias claimed that they could provide an air-conditioned room for the
boy and that Santos would not be in a position to take care of his son since he has to be assigned to
different places. They also allege that Santos did not give a single centavo for the boys support and
maintenance. When the boy was about to be released from the hospital, they were the ones who
paid the fees because their daughter and Santos had no money. Besides, Julia Bedia Santos, their
daughter, had entrusted the boy to them before she left for the United States. Furthermore, Santoss
use of trickery and deceit in abducting the child in 1990, after being hospitably treated by them, did
not speak well of his fitness and suitability as a parent.
The Bedias argued that although the law recognizes the right of a parent to his childs custody,
ultimately the primary consideration was what was best for the happiness and welfare of the latter.
As maternal grandparents who have amply demonstrated their love and affection for the boy since
his infancy, they claimed to be in the best position to promote the childs welfare.

The decision of the Supreme Court: the natural love of a parent

outweighs that of the grandparents
[1] 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 latters
needs.

It is a mass of rights and obligations which the law grants to parents for the purpose of the childrens
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.
[2] 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.
The father and mother, being the natural guardians of unemancipated children, are duty-bound and
entitled to keep them in their custody and company.
[3] The childs welfare is always the paramount consideration in all questions concerning his care
and custody.
[4] The law vests on the father and mother joint parental authority over the persons of their common
children. In case of absence or death of either parent, the parent present shall continue exercising
parental authority.
[5] Only in case of the parents death, absence or unsuitability may substitute parental authority be
exercised by the surviving grandparent.
[6] Santos has not been shown to be an unsuitable and unfit parent. The Bedias
demonstrated love and affection for the boy, notwithstanding, the legitimate father is still
preferred over the grandparents. The latters wealth is not a deciding factor, particularly because
there is no proof that Santos is in no position to support the boy. The fact that he was unable to
provide financial support for his minor son from birth up to over three years when he took the boy
from his in-laws without permission, should not be sufficient reason to strip him of his permanent
right to the childs custody.
[7] While Santoss previous inattention is inexcusable and merits only the severest criticism,
it cannot be construed as abandonment. His appeal of the unfavorable decision against him
and his efforts to keep his only child in his custody may be regarded as serious efforts to
rectify his past misdeeds. To award him custody would help enhance the bond between
parent and son. It would also give the father a chance to prove his love for his son and for the

son to experience the warmth and support which a father can give.
[8] His being a soldier is likewise no bar to allowing him custody over the boy. So many men in
uniform who are assigned to different parts of the country in the service of the nation, are still the
natural guardians of their children. It is not just to deprive our soldiers of authority, care and custody
over their children merely because of the normal consequences of their duties and assignments,
such as temporary separation from their families.
[9] Santoss employment of trickery in spiriting away his boy from his in-laws, though
unjustifiable, is likewise not a ground to wrest custody from him.
[10] The attachment of the Bedias to the young boy whom they have reared for the past three years
is understandable. Still and all, the law considers the natural love of a parent to outweigh that of
the grandparents, such that only when the parent present is shown to be unfit or unsuitable may
the grandparents exercise substitute parental authority, a fact which has not been proven here.
The strong bonds of love and affection possessed by the Bedias as grandparents should not
be seen as incompatible with Santoss right to custody over the child as a father.

Related cases and issues

[1] If the grandparents have, by force or stealth, taken away the grandchild, how can the
father or mother regain custody?
The Supreme Court ruled in Tijing vs. Court of Appeals G.R. No. 125901, March 8, 2001 that the
parent who wants to regain custody can file a petition for a writ of habeas corpus.
The writ of habeas corpus extends to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any person is withheld from the
person entitled thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of
a minor child even if the latter be in the custody of a third person of his own free will. It may even be
said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty
is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for
the purpose of determining the right of custody over a child.
Please read Rule On Custody Of Minors And Writ Of Habeas Corpus In Relation To Custody
Of Minors.
[2] 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 mothers 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 childs 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.
[3] The father's visitation right over an illegitimate child is personal to him; it cannot be
exercised by others, like the child's grandparents
I have previously discussed the issue of visitation rights a father over has over his illegitimate
child. You can download my free PDF newsletter Issue no. 008 September 30, 2008 on this topic.
The problem is that a lot of times, the father himself does not want to have anything to do with his
child. The persons who want to spend time with the child are the grandparents. The fathers visitation
right is personal to him. Thus, if the court has granted the terms and conditions of his visitation, once
he leaves the country (to work, for example), his visitation right cannot be exercised other parties,
like the grandparents.
[4] Vancil vs. Belmes G.R. No. 132223, June 19, 2001
Bonifacia Vancil (Bonifacia for brevity), a US citizen, is the mother of Reeder C. Vancil, a Navy

serviceman of the United States of America who died in the said country on December 22, 1986.
During his lifetime, Reeder had two children named Valerie and Vincent by his common-law wife,
Helen G. Belmes (Helen for brevity). Bonifacia obtained a favorable court decision appointing her
as legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr.
She alleged that Helen was morally unfit as guardian of Valerie considering that Helens live-in
partner raped Valerie several times.
Since Valerie had reached the age of majority at the time the case reached the Supreme Court, the
issue revolved around the guardianship of Vincent.
The Supreme Court ruled that Bonifacia, as the surviving grandparent, can exercise substitute
parental authority only in case of death, absence or unsuitability of Helen. Considering that Helen is
very much alive and has exercised continuously parental authority over Vincent, Bonifacia has to
prove, in asserting her right to be the minors guardian, Helens unsuitability. Bonifacia, however, has
not proffered convincing evidence showing that Helen is not suited to be the guardian of Vincent.
Bonifacia merely insists that Helen is morally unfit as guardian of Valerie considering that her live-in
partner raped Valerie several times. But Valerie, being now of major age, is no longer a subject of
this guardianship proceeding.
Even assuming that Helen is unfit as guardian of minor Vincent, still Bonifacia cannot qualify as a
substitute guardian. She is an American citizen and a resident of Colorado. Obviously, she will not
be able to perform the responsibilities and obligations required of a guardian. In fact, in her petition,
Bonifacia admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To
be sure, she will merely delegate those duties to someone else who may not also qualify as a
guardian.
[4] Tonog vs. CA G.R. No. 122906, February 7, 2002
This case revolved around Gardin Faith, an illegitimate child. Article 176 of the Family Code states
that sole parental authority belongs to the mother. In this case, the Supreme Court ruled that while
the guardianship proceedings were ongoing at the trial court level, TEMPORARY custody of the
child should be retained by the father. 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.

Summary:
[1] In custody battles, the law favors the parents over
the grandparents (Santos vs. CA, G.R. No. 113054 March
16, 1995). The natural love of a parent outweighs that of

the grandparents.
[2] The mother or father can regain custody if the
grandparents have, by force or stealth, taken away their
grandchild. The legal remedy is filing a petition for
habeas corpus.
[3] The father's visitation right over an illegitimate child
is personal to him; it cannot be exercised by others, like
the child's grandparents.

BASIC ISSUES IN CHILD CUSTODY

By: Atty.Fred | July 5, 2007 in Family Law
138 Replies | Related posts at the bottom of article

Custody of children is one of the most intense aspects in family litigation. A custody battle could be
an independent case or a mere incident in an annulment/separation case. Here are some basic
matters relating to custody.
In custody disputes, what is the paramount criterion?
The paramount criterion in custody disputes is the welfare and well-being of the child, or the best
interest of the child. The court, in arriving at its decision as to whom custody of the minor should be
given, must take into account the respective resources and social and moral situations of the
contending parents. Nevertheless, this primordial rule can override the rights of one or both parents
over their children.
What is the general rule as to custody over children?
The general rule is that a child under seven years of age shall not be separated from his mother,
which is based on the basic need of a child for his mothers loving care. 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. This is more pronounced in case of
illegitimate children, as the law expressly provides that illegitimate children shall be under the
parental authority of their mother.
Is this rule absolute?
This rule is not absolute. 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. Negligent and careless failure to perform the

duties of parenthood is a significant element of abandonment, regardless of actual intention. A

strong basis for a finding of the parents abandonment of his or her child is found in the case where
the parent has left the child permanently or indefinitely in the care of others, given it to another, or
surrendered it entirely.
I left my child to a relative, even signing a document to such effect. Am I barred from taking
back

my

child?

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
childrens 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.
The rule is that children older than 7 years old are allowed to state his preference. Is the court
bound

by

such

preference?

While such choice is given respect, the court is not bound by that choice. The court may exercise its
discretion by disregarding the childs 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. Decisions on
custody of children are always open to adjustment as the circumstances may warrant.
Related Posts:
1. Infidelity of the mother in child custody cases
2. Presumptive death of a spouse for subsequent marriage
3. Guidelines on Judicial Solemnization of Marriage
4. Conjugal Partnership of Gains: Property Relations in Marriage
5. Premature Marriage No Longer a Crime