Article 168. If
the marriage is terminated and the mother contracted another marriage
within three hundred days after such termination of the former marriage,
these rules shall 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 three hundred days after the termination of the former marriage. (259a)
by: Aneleth Anjolyn
Valencia
According to the provisions of the above article, one of the requisites for the child to be considered child of the first marriage is that the child must have been born within 300 days after the termination of the first marriage and the said child must have been born within 180 days after the solemnization of the second marriage.
Article 170. The action to impugn the legitimacy of the child shall 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.
If the husband or, in his default all of his heirs do not reside at the place of birth as defined in the first paragraph 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 shall 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.
by: Kristia Capio
PERIOD TO IMPUGN LEGITIMACY OF A CHILD
The law prescribes the prescriptive period within which the child’s legitimacy must be questioned like:
- within one (1) year from the knowledge of the birth or its recording in the civil register, if the husband or any of his heirs, are residing in the municipality where the birth took place or where it was recorded;
- within two (2) years if the husband or any of his heirs are not residing in the place of birth or where it was recorded, if they are residing in the Philippines;
- within (3) years, if the husband or any of his heirs are living abroad;
- if the birth was concealed or unknown to the husband or any of his heirs, the period shall be counted from the discovery or knowledge of the birth or of the fact of registration whichever is earlier.
The law prescribes the prescriptive period within which the child’s legitimacy must be questioned like:
- within one (1) year from the knowledge of the birth or its recording in the civil register, if the husband or any of his heirs, are residing in the municipality where the birth took place or where it was recorded;
- within two (2) years if the husband or any of his heirs are not residing in the place of birth or where it was recorded, if they are residing in the Philippines;
- within (3) years, if the husband or any of his heirs are living abroad;
- if the birth was concealed or unknown to the husband or any of his heirs, the period shall be counted from the discovery or knowledge of the birth or of the fact of registration whichever is earlier.
EXAMPLE
H and W are validly married. W gives birth to a child C. Who can question C’s legitimacy?
Answer: Generally, only H, the husband. In three cases however, H’s heirs may question C’s legitimacy:
1. If the husband should die before the expiration of the period fixed for bringing the action.
2. If he should die after the filing of the complaint, without having desisted from the same.
Article 171. 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 died 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.
by: Janine May T Gumangol
*Generally, it is only the husband who may question or doubt the legitimacy of the child. However, in the three cases expressed in this Articles, the heirs are given the right.
*Heirs- includes testamentary, voluntary, compulsory, or legal. Heirs are the ones whose right to the succession might be jeopardized by the existence of a legitimate child. But the heirs are merely supposed to substitute or represent the deceased husband, to whom the right is principally given. Thus, if the husband has renounced the right, as when he fails to bring the action before the prescriptive period, or when he voluntarily withdraws an action, to grant the right of the heirs would be subordinating the implied wish of the husband to their own selfish interests.
Questions and Answers
Question 1: A child was born to a married couple, Ana and Brent, 170 days after the celebration of the marriage. Brent refused to contest the legitimacy of the child, but the heirs wanted to do so. This state of heirs continued for some time until finally the period for bringing the action lapsed. May the Brent still bring the action? May the heirs of Brent still bring the action?
Answer 1: Brent may not bring the action because the time limit has already expired. The heirs of the husband cannot bring the action either because not one of the three cases mentioned under Article 171 exists and, besides, the time limit has already expired.
Question 2: A child was born to a married couple 170 days after the celebration of the marriage, making the child legitimate. However, when the child was born, the husband was already dead. The child is, therefore, a posthumous child. Are the heirs of the husband allowed to contest the legitimacy of the child?
Answer 2: Yes, the heirs of the husband are allowed to contest the legitimacy of the child because the child was born after the death of the husband.
CHAPTER 2
Article 172. The filiation of legitimate children is established by any of the following:
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
Proof of filiation:
Other means to prove filiation:
Rosalina P. Eceta vs. Ma. Theresa Vell Lagura Eceta
Facts:
A petition for review on certiorari was filed by the Rosalina Eceta, assailing the decision of the Court of Appeals.
Issue:
Ruling:
H and W are validly married. W gives birth to a child C. Who can question C’s legitimacy?
Answer: Generally, only H, the husband. In three cases however, H’s heirs may question C’s legitimacy:
1. If the husband should die before the expiration of the period fixed for bringing the action.
2. If he should die after the filing of the complaint, without having desisted from the same.
Article 171. 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 died 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.
by: Janine May T Gumangol
*Generally, it is only the husband who may question or doubt the legitimacy of the child. However, in the three cases expressed in this Articles, the heirs are given the right.
*Heirs- includes testamentary, voluntary, compulsory, or legal. Heirs are the ones whose right to the succession might be jeopardized by the existence of a legitimate child. But the heirs are merely supposed to substitute or represent the deceased husband, to whom the right is principally given. Thus, if the husband has renounced the right, as when he fails to bring the action before the prescriptive period, or when he voluntarily withdraws an action, to grant the right of the heirs would be subordinating the implied wish of the husband to their own selfish interests.
Questions and Answers
Question 1: A child was born to a married couple, Ana and Brent, 170 days after the celebration of the marriage. Brent refused to contest the legitimacy of the child, but the heirs wanted to do so. This state of heirs continued for some time until finally the period for bringing the action lapsed. May the Brent still bring the action? May the heirs of Brent still bring the action?
Answer 1: Brent may not bring the action because the time limit has already expired. The heirs of the husband cannot bring the action either because not one of the three cases mentioned under Article 171 exists and, besides, the time limit has already expired.
Question 2: A child was born to a married couple 170 days after the celebration of the marriage, making the child legitimate. However, when the child was born, the husband was already dead. The child is, therefore, a posthumous child. Are the heirs of the husband allowed to contest the legitimacy of the child?
Answer 2: Yes, the heirs of the husband are allowed to contest the legitimacy of the child because the child was born after the death of the husband.
CHAPTER 2
PROOF OF FILIATION
Article 172. The filiation of legitimate children is established by any of the following:
1. The record of birth appearing in the civil registrar 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
by: Rose Ann Villanueva
Proof of filiation:
1. A signed birth certificate
2. Order of a court
3. Authentic writing
4. Private writing
5. Open and continuous possession of the status of an illegitimate child
Other means to prove filiation:
1. Baptismal certificate
2. Judicial admission
4. A family Bible in which his name has been entered
5. Common reputation respecting his pedigree
6. Admission by silence
7. Testimonies of witnesses
Rosalina P. Eceta vs. Ma. Theresa Vell Lagura Eceta
G.R. No. 157037. May 20, 2004
Ynares-Santiago, J.
Facts:
A petition for review on certiorari was filed by the Rosalina Eceta, assailing the decision of the Court of Appeals.
Rosalina Eceta married to Isaac Eceta begot a son, named Vicente. The couple acquired several properties during their marriage, one of which is the disputed property located at Stanford, Cubao, Quezon City. Isaac died in 1967 leaving Rosalina and Vicente as compulsory heirs.
Vicente had an illegitimate daughter, Ma. Theresa. In 1977, Vicente died, leaving Rosalina and Ma. Theresa as his compulsory heirs.
A case was filed by Ma. Theresa before the Regional Trial Court Quezon City for Partition and Accounting with Damages against Rosalina.
Rosalina alleged that the property was paraphernal in nature and thus belonged to her exclusively.
Rosalina and Ma. Theresa admitted their relationship to one another during the pre-trial conference.
The Regional Trial Court ruled in favor of the respondent. The Court of Appeals affirmed the lower court’s decision with modification.
Issue:
Whether or not respondent provided competent evidence to prove her filiation with Vicente Eceta.
Ruling:
Yes. Article 172 of the Family Code enumerated the proof that a child may show to establish filiation with respect to her father. In the case at bar, Ma. Theresa provided a duly authenticated birth certificate signed by Vicente, thereby acknowledging that she is his daughter.
Article 173. The
action to claim legitimacy may be brought by the child during his or
her lifetime and shall be transmitted to the heirs should the child die
during 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.
The action already
commenced by the child shall survive
notwithstanding the death of either or
both of the parties. (268a)
by: Aneleth Anjolyn Valencia
The above article is the action to claim
legitimacy of the child. Generally, only the child himself may file the action,
however, his heirs can do so if the child dies during minority and during
incapacity. The heirs are given five years from the death, within which to
bring the action.
Art. 174. Legitimate 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;(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 legitimate and other successional rights granted to them by the Civil Code. (264a)
by: Evita D Teope
In the law of surnames, it is provided that "legitimate and legitimated children shall principally use the surname of the father" (Art. 364) but the mother's surname may also be used (Art. 174, FC), and it would not be improper to include the surnames of grandparents and other ascendants. This is so because the law uses the phrase "shall have the right" to bear the surname of the father. It is more of a right, but is not a duty on his part to bear the surname of the father.
Before the Civil Code, if a father has illegitimate children, the legitimate children cannot prevent said illegitimate children from using the father's surname.
The Supreme Court speaking through Chief Justice Paras held: We concede that the plaintiffs may use the surname of their father "Valencia" as a matter of right by reason of the mere fact that they are legitimate children, but we cannot agree to the view that this article grants monopolistic propriety control to the legitimate children over the surname of their father. In other words, said article has marked a right to which legitimate children may not be deprived (even by non-user for a time) but it cannot be interpreted as a prohibition against the use by others of what may happen to the surname of their father. If the plaintiff's theory were correct, they can stop countless inhabitants from bearing the surname of their father. Furthermore, the father acquiesced in the use of the surname by the illegitimate children can still use the disputed surname in the absence of any law granting exclusive ownership over a surname. (Catalina Osmeña de Valencia v. Rodriguez).
In the case, however, of Manuel, et al v. Republic, L-15811, Mar. 27, 1961, the Court had occasion to rule that where there is no evidence that the natural child was duly recognized by his alleged putative father, his petition for change of surname should be denied for he should not be allowed to use a surname which otherwise he is not permitted to employ under the law. The supreme court further said that whereas before the effectivity of the New Civil Code, there was no specific legal provision regulating the use of surname, under the present law, there are such provisions and thus, a natural child may use the father's surname only if there has been acknowledgment.
With regard to support, the right to receive support cannot be renounced, nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor. However, the support in arrears may be compensated and renounced, and the right to demand the same maybe transmitted by onerous or gratuitous title.
Support is everything that is indispensable for the sustenance, dwelling, clothing, and medical attendance,according to the social position of the family.
A child has the right to be supported. It is in fact, the duty of the parents to provide every child support. This is so because child support child support is necessary for the sustenance of the child. It cannot be renounced, waived or transferred to a third person. The exception against its waiver, is the support in arrears for the reason that it is no longer needed by the person who is entitled to be supported.
The support also includes the education of the person entitled to be supported until he completes his education r training for some profession, trade or vocation even beyond the age of majority.
On the other hand, the legitime of each legitimate child is half of the parent's estate divided by the number of the children. (Art.888, Civil Code). The legitime must always be given unless the child is validly disinherited for a legal cause. The grounds for disinheritance are exclusive. Any other ground relid upon by the parent/s in disinheriting the child will invalidate or render useless the said inheritance. The free portion of the property may also be given to the children or to any of them.
If a child dies ahead of his father, the heir of the child can get the child's legitime from the father's estate in testamentary succession. In the legal succession, the heir of the child will get all the child himself would have inherited had he not died ahead of his father.
CHAPTER 3
Article 176. 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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)
Art. 174. Legitimate 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;(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 legitimate and other successional rights granted to them by the Civil Code. (264a)
by: Evita D Teope
In the law of surnames, it is provided that "legitimate and legitimated children shall principally use the surname of the father" (Art. 364) but the mother's surname may also be used (Art. 174, FC), and it would not be improper to include the surnames of grandparents and other ascendants. This is so because the law uses the phrase "shall have the right" to bear the surname of the father. It is more of a right, but is not a duty on his part to bear the surname of the father.
Before the Civil Code, if a father has illegitimate children, the legitimate children cannot prevent said illegitimate children from using the father's surname.
The Supreme Court speaking through Chief Justice Paras held: We concede that the plaintiffs may use the surname of their father "Valencia" as a matter of right by reason of the mere fact that they are legitimate children, but we cannot agree to the view that this article grants monopolistic propriety control to the legitimate children over the surname of their father. In other words, said article has marked a right to which legitimate children may not be deprived (even by non-user for a time) but it cannot be interpreted as a prohibition against the use by others of what may happen to the surname of their father. If the plaintiff's theory were correct, they can stop countless inhabitants from bearing the surname of their father. Furthermore, the father acquiesced in the use of the surname by the illegitimate children can still use the disputed surname in the absence of any law granting exclusive ownership over a surname. (Catalina Osmeña de Valencia v. Rodriguez).
In the case, however, of Manuel, et al v. Republic, L-15811, Mar. 27, 1961, the Court had occasion to rule that where there is no evidence that the natural child was duly recognized by his alleged putative father, his petition for change of surname should be denied for he should not be allowed to use a surname which otherwise he is not permitted to employ under the law. The supreme court further said that whereas before the effectivity of the New Civil Code, there was no specific legal provision regulating the use of surname, under the present law, there are such provisions and thus, a natural child may use the father's surname only if there has been acknowledgment.
With regard to support, the right to receive support cannot be renounced, nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor. However, the support in arrears may be compensated and renounced, and the right to demand the same maybe transmitted by onerous or gratuitous title.
Support is everything that is indispensable for the sustenance, dwelling, clothing, and medical attendance,according to the social position of the family.
A child has the right to be supported. It is in fact, the duty of the parents to provide every child support. This is so because child support child support is necessary for the sustenance of the child. It cannot be renounced, waived or transferred to a third person. The exception against its waiver, is the support in arrears for the reason that it is no longer needed by the person who is entitled to be supported.
The support also includes the education of the person entitled to be supported until he completes his education r training for some profession, trade or vocation even beyond the age of majority.
On the other hand, the legitime of each legitimate child is half of the parent's estate divided by the number of the children. (Art.888, Civil Code). The legitime must always be given unless the child is validly disinherited for a legal cause. The grounds for disinheritance are exclusive. Any other ground relid upon by the parent/s in disinheriting the child will invalidate or render useless the said inheritance. The free portion of the property may also be given to the children or to any of them.
If a child dies ahead of his father, the heir of the child can get the child's legitime from the father's estate in testamentary succession. In the legal succession, the heir of the child will get all the child himself would have inherited had he not died ahead of his father.
CHAPTER 3
ILLEGITIMATE CHILDREN
Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a)
Article 176. 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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)
CHAPTER 4
Article 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. (270a)
by: Rose Ann Villanueva
Children born by subsequent marriage is deemed to be legitimate. The status of the child born by a voidable marriage shall not be affected by the annulment.
CHAPTER 4
LEGITIMATED CHILDREN
Article 177. 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. (269a)
Article 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. (270a)
by: Rose Ann Villanueva
Children born by subsequent marriage is deemed to be legitimate. The status of the child born by a voidable marriage shall not be affected by the annulment.
Article 179. Legitimated
children shall enjoy the same rights as legitimate children. (272a)
by: Aneleth Anjolyn
Valencia
Legitimated children shall have the same status and rights of legitimate children, and with such rights enjoyed as of the time of their birth.
Effects of Legitimation:
a) the right to bear the surname of their father;
b) the right to receive support from their parents, their ascendants, brothers and sisters;
c) the right to the legitime and other successional rights.
Article 180. The effects of legitimation shall retroact to the time of the child’s birth. (273a)
by: Kristia Capio
Article 180. The effects of legitimation shall retroact to the time of the child’s birth. (273a)
by: Kristia Capio
PURPOSE OF RETROACTIVE EFFECT OF LEGITIMATION
The primary purpose of providing retroactive effect to legitimation is to protect the innocent child. Because the act of legitimation produces effects as of the child’s birth, for legal purposes, the child is deemed born a legitimate child. Thus, a legitimated child has now a right to participate in a succession opened before the marriage.
Article 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants.
by: Janine May T Gumangol
*The former natural child who has been legitimated can inherit by right of representation. He can represent his deceased father in matters of succession.
Article 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five (5) years from the time their cause of action accrues. (275a)
by: Evita D Teope
This is done by those prejudiced in their rights within 5 years from the time their cause of action accrues.
The term 'rights' generally refers to successional rights.
The persons who can be prejudiced in their rights by the process of conferring someone all rights of a legitimate child are the legal heirs of the parents.
The cause of action to impugn the legitimation accrues only upon the death of the parents of the legitimated child because it is only at that time when the successional rights to the legitime will be vested.
Even an adopted child can be a prejudiced heir not only of his/her adopter but also of his/her parents in case a child of the said parents is legitimated.
Again, why would the legitimate children be considered as the 'prejudiced' in their rights?
As an illegitimate child is elevated to the status of a legitimate and shall participate in the successional rights of the parents - in equal footing with the original legitimates. The legitimates are prejudiced because of their successional rights, to elevate an illegitimate to the status of a legitimate child would cause a reduction of their successional rights. This is the prejudice referred to by this provision.
TITLE VII
ADOPTION
Article 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family.
Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title.
In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, EO 91 and PD 603)
Article 184. The following persons may not adopt:
(1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation;
(2) Any person who has been convicted of a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoptions as may be provided by law. (28a, EO 91 and PD 603)
Article 185. Husband and wife must jointly adopt, except in the following cases:
Article 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. (29a, E.O. No. 91 and P.D. No. 603)
Note: The word must has been changed to "shall" (RA 8552)
Generally, the husband and the wife must jointly adopt except as provided in the provisions of this Article. This insures the harmony between the spouses, since they will be exercising joint parental authority over the adopted child.
In case of disagreement in the exercise of joint parental authority, the father’s decision shall prevail, except when there is a judicial order to the contrary.
PURPOSE OF RETROACTIVE EFFECT OF LEGITIMATION
The primary purpose of providing retroactive effect to legitimation is to protect the innocent child. Because the act of legitimation produces effects as of the child’s birth, for legal purposes, the child is deemed born a legitimate child. Thus, a legitimated child has now a right to participate in a succession opened before the marriage.
Article 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants.
by: Janine May T Gumangol
*The former natural child who has been legitimated can inherit by right of representation. He can represent his deceased father in matters of succession.
Article 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five (5) years from the time their cause of action accrues. (275a)
by: Evita D Teope
This is done by those prejudiced in their rights within 5 years from the time their cause of action accrues.
The term 'rights' generally refers to successional rights.
The persons who can be prejudiced in their rights by the process of conferring someone all rights of a legitimate child are the legal heirs of the parents.
The cause of action to impugn the legitimation accrues only upon the death of the parents of the legitimated child because it is only at that time when the successional rights to the legitime will be vested.
Even an adopted child can be a prejudiced heir not only of his/her adopter but also of his/her parents in case a child of the said parents is legitimated.
Again, why would the legitimate children be considered as the 'prejudiced' in their rights?
As an illegitimate child is elevated to the status of a legitimate and shall participate in the successional rights of the parents - in equal footing with the original legitimates. The legitimates are prejudiced because of their successional rights, to elevate an illegitimate to the status of a legitimate child would cause a reduction of their successional rights. This is the prejudice referred to by this provision.
TITLE VII
ADOPTION
Article 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family.
Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title.
In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, EO 91 and PD 603)
Article 184. The following persons may not adopt:
(1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation;
(2) Any person who has been convicted of a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoptions as may be provided by law. (28a, EO 91 and PD 603)
Article 185. Husband and wife must jointly adopt, except in the following cases:
(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other. (29a, E.O. No. 91 and P.D. No. 603)
Article 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. (29a, E.O. No. 91 and P.D. No. 603)
by: Rose Ann Villanueva
Note: The word must has been changed to "shall" (RA 8552)
Generally, the husband and the wife must jointly adopt except as provided in the provisions of this Article. This insures the harmony between the spouses, since they will be exercising joint parental authority over the adopted child.
In case of disagreement in the exercise of joint parental authority, the father’s decision shall prevail, except when there is a judicial order to the contrary.
Article 187. The
following may not be adopted:
(1)
A person of legal age, unless he or she is a child by nature of the adopter or
his or her spouse, or, prior to the adoption, said person had been consistently
considered and treated by the adopter as his or her own child during minority;
(2)
An alien with whose government the Republic of the Philippines has no
diplomatic relations; and
(3)
A person who has already been adopted unless such adoption has been previously
revoked or rescinded. (30a, EO 91 and PD 603)
by: Aneleth Anjolyn
Valencia
Modification of the law.
RA
8552 has introduced some changes in the law (Art. 187). It now provides:
Sec. 8. Who
may be adopted. — The following may be adopted:
a)
Any person below eighteen (18)
years of age who has been administratively or judicially declared available for
adoption;
b)
The legitimate son/daughter of one
spouse by the other spouse;
c)
An illegitimate son/daughter by a
qualified adopter to improve his/her status to that of legitimacy;
d)
A person of legal age if, prior to
the adoption, said person has been consistently considered and treated by the
adopter(s) as his/her own child since minority;
e)
A child whose adoption had been
previously rescinded; or
f)
A child whose biological or
adoptive parent(s) has died:
Article 188. The written consent of the following to the adoption shall be necessary:(1) The person to be adopted, if ten years of age or over;(2) The parents by nature of the child, the legal guardian, or the proper government instrumentality;(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;(4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter’s spouse, if any; and(5) The spouse, if any, of the person adopting or to be adopted. (31a, E.O. No. 91 and P.D. No. 603)
by: Kristia Capio
by: Kristia Capio
MODIFICATION IN THE LAW
RA 8552 has introduced changes in the law. It now provides:
“Sec. 9. Whose consent is necessary to the adoption.
After being properly counselled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:
a) The adoptee, if ten (10) years of age or over;
b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;
c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter’s spouse, if any; and
e) The spouse, if any, of the person adopting or to be adopted.’’
RA 8552 has introduced changes in the law. It now provides:
“Sec. 9. Whose consent is necessary to the adoption.
After being properly counselled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:
a) The adoptee, if ten (10) years of age or over;
b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;
c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter’s spouse, if any; and
e) The spouse, if any, of the person adopting or to be adopted.’’
“Sec. 9. Whose consent is necessary to the adoption.
After being properly counselled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:
a) The adoptee, if ten (10) years of age or over;
b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;
c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter’s spouse, if any; and
e) The spouse, if any, of the person adopting or to be adopted.’’
CONSENT OF ADOPTED
The law requires the consent of the person to be adopted if he/she is ten years of age or over. At that age, the child should have the capacity to distinguish or choose his/her parents.
If a three-day old child was given by its mother to another — that person may be considered a guardian exercising patria potestas over the abandoned child and, therefore, capable to give consent to the adoption of the latter.
The law requires the consent of the person to be adopted if he/she is ten years of age or over. At that age, the child should have the capacity to distinguish or choose his/her parents.
If a three-day old child was given by its mother to another — that person may be considered a guardian exercising patria potestas over the abandoned child and, therefore, capable to give consent to the adoption of the latter.
If a three-day old child was given by its mother to another — that person may be considered a guardian exercising patria potestas over the abandoned child and, therefore, capable to give consent to the adoption of the latter.
CONSENT OF PARENTS
No matter how lowly the natural parents, still, they should have the opportunity to be heard in the changing of the legal status of their children which would essentially affect their family devotion. Such requirement appears to be in accordance with the fundamental principle of natural justice, human feelings, and virtual family regard.
No matter how lowly the natural parents, still, they should have the opportunity to be heard in the changing of the legal status of their children which would essentially affect their family devotion. Such requirement appears to be in accordance with the fundamental principle of natural justice, human feelings, and virtual family regard.
CONSENT OF CHILDREN OF ADOPTED REQUIRED
It is now required that the children, whether legitimate or adopted, ten years of age or over of the adopting parent, as well as the illegitimate children of the adopting parent who are living with him, to give their consent to the adoption. The reason for the law is that these children of the adopter would be prejudiced as their legitimes are concerned, for the reason that the adopted child becomes the child of the adopter and is entitled to inherit.
Article 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;
(2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his parents and other blood relatives.
by: Janine May Gumangol
"Parental authority is provisionally vested in the adopting parents during the period of trial custody, that is, before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period."
"In the instant case, the trial custody period either had not yet begun or had already been completed at the time of the air rifle shooting. In any event, actual custody of Adelberto was then with his natural parents, not the adopting parents." (Tamargo versus Court of Appeals, GR 85044, June 3, 1992)
Article 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession;(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters;
(3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate into equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters.
(4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate into equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the entire estate; and
(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603)
by: Evita D Teope
The Article applies only in legal or intestate succession.
An example of paragraph 1 is:
An adopted child died intestate survived by his wife and five (5) legitimate children. If the estate is P12 million, how should it be distributed?
The wife shall have the same right as each of the 5 legitimate children. Hence, the estate will be divided into 6 equal shares with each child inheriting P2 million. The wife shall also inherit P2 million.
An example of paragraph 2 is:
X and Y are the parents by nature of Z, who is eventually adopted by A. If Z dies with an intestate estate of P18 million, how will the estate be divided?
Half will go to the legitimate parents so X and Y will get a total of P9 million while A will inherit P9 million.
What is the difference between paragraph 3 and 4?
In par. 3, the word OR is used (illegitimate OR surviving spouse); in paragraph 4, AND is the word used.
In par. 3, the estate is divided into 2 parts; in par. 4, 3 parts are involved.
In paragraph 5, if the only survivors are the adopters, they get the entire estate. Clearly, all indications point out that the adoption shall exclude collateral relatives of the adopted.
What if only the collateral relatives survive?
In paragraph 6, the rules are set forth in Articles 1004-1010 of the Civil Code.
References:
Civil Code of the Phils. Annotated 16th Edition by Edgardo Paras
Family Code of the Phils. 2017th Edition by Ed Vincent S. Albano
Article 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumental acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD 603)
Article 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases:
(1) If the adopted has committed any act constituting ground for disinheriting a descendant; or
(2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. (41a, PD 603)
Article 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both.
Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his surname prior to the adoption.
The court shall accordingly order the amendment of the records in the proper registries. (42a, PD 603)
TITLE VIII
SUPPORT
Article 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.
Person of the age of majority are still entitled to support unless there are just reasons for the extinguishment of the right.
Cherryl B. Dolina vs. Glenn D. Vallecera
Facts:
The petitioner was the mother of an unacknowledged child allegedly of the respondent. Cherryl Dolina filed a petition before the Regional Trial Court of Tacloban City, for the issuance of a temporary protection order against Glenn Vallecera and also to withhold from his pay for support.
Respondent averred that the claim of the petitioner was for support rather than from protection against women and child abuses since he was not the child’s father and that the signature in the birth certificate presented was not his. Furthermore, he has never lived nor is he living with the petitioner which invalidates her claim for protection order against him.
The Regional Trial Court dismissed the case and denied the motion for reconsideration filed by the petitioner on April 4, 2008.
Issue:
Whether or not the child is entitled for support from the alleged father.
Ruling:
It is now required that the children, whether legitimate or adopted, ten years of age or over of the adopting parent, as well as the illegitimate children of the adopting parent who are living with him, to give their consent to the adoption. The reason for the law is that these children of the adopter would be prejudiced as their legitimes are concerned, for the reason that the adopted child becomes the child of the adopter and is entitled to inherit.
Article 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;
(2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his parents and other blood relatives.
by: Janine May Gumangol
"Parental authority is provisionally vested in the adopting parents during the period of trial custody, that is, before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period."
"In the instant case, the trial custody period either had not yet begun or had already been completed at the time of the air rifle shooting. In any event, actual custody of Adelberto was then with his natural parents, not the adopting parents." (Tamargo versus Court of Appeals, GR 85044, June 3, 1992)
Article 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession;(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters;
(3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate into equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters.
(4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate into equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the entire estate; and
(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603)
by: Evita D Teope
by: Evita D Teope
The Article applies only in legal or intestate succession.
An example of paragraph 1 is:
An adopted child died intestate survived by his wife and five (5) legitimate children. If the estate is P12 million, how should it be distributed?
The wife shall have the same right as each of the 5 legitimate children. Hence, the estate will be divided into 6 equal shares with each child inheriting P2 million. The wife shall also inherit P2 million.
An example of paragraph 2 is:
X and Y are the parents by nature of Z, who is eventually adopted by A. If Z dies with an intestate estate of P18 million, how will the estate be divided?
Half will go to the legitimate parents so X and Y will get a total of P9 million while A will inherit P9 million.
What is the difference between paragraph 3 and 4?
In par. 3, the word OR is used (illegitimate OR surviving spouse); in paragraph 4, AND is the word used.
In par. 3, the estate is divided into 2 parts; in par. 4, 3 parts are involved.
In paragraph 5, if the only survivors are the adopters, they get the entire estate. Clearly, all indications point out that the adoption shall exclude collateral relatives of the adopted.
What if only the collateral relatives survive?
In paragraph 6, the rules are set forth in Articles 1004-1010 of the Civil Code.
References:
Civil Code of the Phils. Annotated 16th Edition by Edgardo Paras
Family Code of the Phils. 2017th Edition by Ed Vincent S. Albano
Article 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumental acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD 603)
Article 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases:
(1) If the adopted has committed any act constituting ground for disinheriting a descendant; or
(2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. (41a, PD 603)
Article 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both.
Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his surname prior to the adoption.
The court shall accordingly order the amendment of the records in the proper registries. (42a, PD 603)
TITLE VIII
Article 194. Support compromises 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. (290a)
by: Rose Ann Villanueva
Person of the age of majority are still entitled to support unless there are just reasons for the extinguishment of the right.
If the person supporting dies, the obligation ceases.
Cherryl B. Dolina vs. Glenn D. Vallecera
G.R. No. 182367. December 15, 2010
Abad, J.
Facts:
The petitioner was the mother of an unacknowledged child allegedly of the respondent. Cherryl Dolina filed a petition before the Regional Trial Court of Tacloban City, for the issuance of a temporary protection order against Glenn Vallecera and also to withhold from his pay for support.
Respondent averred that the claim of the petitioner was for support rather than from protection against women and child abuses since he was not the child’s father and that the signature in the birth certificate presented was not his. Furthermore, he has never lived nor is he living with the petitioner which invalidates her claim for protection order against him.
The Regional Trial Court dismissed the case and denied the motion for reconsideration filed by the petitioner on April 4, 2008.
Issue:
Whether or not the child is entitled for support from the alleged father.
Ruling:
No. To be entitled for legal support the petitioner must file the proper action and to first establish the child’s filiation. Since the child was never acknowledged as an illegitimate child of the respondent, he is not entitled for legal support. The mother of the child should have filed for compulsory recognition. If filiation is proven, then support follows as a legal obligation.
Article 195. Subject to
the provisions of the succeeding articles, the following are obliged to support
each other to the whole extent set forth in the preceding article:
(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; and
(5)
Legitimate brothers and sisters, whether of full or halfblood.(291a)
Article 196. Brothers
and sisters not legitimately related, whether of the full or half-blood, are
likewise bound to support each other to the full extent set forth in Article
194, except only when the need for support of the brother or sister, being of
age, is due to a cause imputable to the claimant’s fault or negligence. (291a)
by: Aneleth Anjolyn
Valencia
The
right and obligation to support arises from law, life Article 68 of the Family
Code which obliges the spouses to held and support one another.
a. It has been recognized that the marriage relation
imposes upon the spouses the obligation to support. (Santos vs. Sweeney, 4
Phil. 79; Lerma vs. Mamaril, 9 Phil. 118; Clausen vs. Cabrera, 72 Phil. 252).
b. Thus, if the wife is forced to leave the conjugal
dwelling by causes justifying her establishment of a separate domicile, she is
entitled to separate maintenance from the husband. (Goitia vs. Campos Rueda, 35
Phil. 252; Garcia vs. Santiago, 53 Phil. 952; Dadivas de Villanueva vs.
Villanueva, 54 Phil. 92; Panuncio vs. Sula, 34 O.G. 1291).
c. In this regard, the right of a wife to support depends
upon her status as such (Yangco vs. Rhoda, 1 Phil. 404), so that once the
marriage has been annulled, the right ceases, even during the pendency of the
action filed by her for the liquidation of their conjugal property. (Mendoza
vs. Paruñgao, 49 Phil. 271).
Article 197. For the support of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership.
by: Kristia Capio
Article 197. For the support of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership.
by: Kristia Capio
SUPPORT OF ILLEGITIMATE CHILDREN OF A SPOUSE
If a person who is married has ascendants, or descendants whether legitimate or illegitimate, or brothers and sisters, and he is obliged to support them, such support shall come from the separate properties of such spouse. If needed, absolute community assets or conjugal property will advance the support, but subject to reimbursement at the liquidation of the absolute community or the conjugal partnership.
If a person who is married has ascendants, or descendants whether legitimate or illegitimate, or brothers and sisters, and he is obliged to support them, such support shall come from the separate properties of such spouse. If needed, absolute community assets or conjugal property will advance the support, but subject to reimbursement at the liquidation of the absolute community or the conjugal partnership.
The reason for the law is that there is no obligation of the lawful spouse to support the children of the other spouse with another person, unless they have been adopted by them. Also, the properties of the husband and wife are not bound to answer for their support.
EXAMPLE
H and W are husband and wife, H is supporting his brother who is in college such support shall come from their separate properties because W has no obligation to H's brother.
Article 198. 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.
by:Janine May T Gumangol
"A party may set up the special defense of adultery to defeat an action for support" (Quintana versus Lerma)
Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
by: Evita D Teope
This speaks of the order of liability in matters of support. Since the obligation to support certain rests primarily upon the requirements of human nature and the ties created by family relations, it is only logical that the obligation should first be imposed upon those who are closely related to the recipient and it is only in default of those nearer based on the degree of relationship that those who are more remote are called upon to discharge the obligation.
Thus, a rich brother/sister will not be obliged to give support if he proves that the father has enough means to give support.
References:
Civil Code of the Phils. Annotated 16th Edition by Edgardo Paras
Family Code of the Phils. 2017th Edition by Ed Vincent S. Albano
Article 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each.
However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them.
When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a)
Article 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. (296a)
by: Rose Ann Villanueva
The law does not encourage separation of spouses, therefore a large amount for separation maintenance should be rarely given.
May the amount of allowance being given be modified by the court?
There is no final judgment in support. Support depends not only on varying conditions affecting the ability of the obligor to pay the amount fixed but also the ever-changing needs of the beneficiary.
H and W are husband and wife, H is supporting his brother who is in college such support shall come from their separate properties because W has no obligation to H's brother.
Article 198. 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.
by:Janine May T Gumangol
"A party may set up the special defense of adultery to defeat an action for support" (Quintana versus Lerma)
Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
by: Evita D Teope
This speaks of the order of liability in matters of support. Since the obligation to support certain rests primarily upon the requirements of human nature and the ties created by family relations, it is only logical that the obligation should first be imposed upon those who are closely related to the recipient and it is only in default of those nearer based on the degree of relationship that those who are more remote are called upon to discharge the obligation.
Thus, a rich brother/sister will not be obliged to give support if he proves that the father has enough means to give support.
References:
Civil Code of the Phils. Annotated 16th Edition by Edgardo Paras
Family Code of the Phils. 2017th Edition by Ed Vincent S. Albano
Article 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each.
However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them.
When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a)
Article 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. (296a)
by: Rose Ann Villanueva
The law does not encourage separation of spouses, therefore a large amount for separation maintenance should be rarely given.
May the amount of allowance being given be modified by the court?
Yes. The allowance may be changed in case sufficient reasons exist.
There is no final judgment in support. Support depends not only on varying conditions affecting the ability of the obligor to pay the amount fixed but also the ever-changing needs of the beneficiary.
Article 203. 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.
Support
pendente lite may be claimed in accordance with the Rules of Court.
Payment
shall be made within the first five days of each corresponding month. When the
recipient dies, his heirs shall not be obliged to return what he has received
in advance. (298a)
Article 204. The person
obliged to give support shall have the option to fulfill the obligation either
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. (299a)
by: Aneleth Anjolyn
Valencia
The right to support begins the moment
one needs it. Nonetheless, it shall be paid only from the date of judicial or
extra-judicial demand. Now, the support for the “pendente lite” can be claimed
in accordance with sections 1-6, rule 61 of the rules of court.
In addition to the support payment that
must be made and with a fixed date, Article 203’s last paragraph speaks of the
effect of death of the recipient upon support paid in advance.
Illustration:
If
a person is obliged to give support by virtue of a decision of the court and
such decision mandates that he should give the recipient P1,000.00 per month
and later on gets demoted in his work and receives a lesser compensation, he
can ask for a reduction because his resources or means of the said person has
diminished. Appropriately, however, the reduction of means as a defense does
not apply to support of spouses for it refers more to a case where the recipient
is a stranger to the family of the obligor. (Corral vs. Gallego, 38 O.G. 3158).
The
person obliged to give support has the option to give it by either paying a
fixed allowance to the person entitled to it or maintaining him in the family
dwelling the person entitled to the support, but maintaining and receiving him
in the family dwelling cannot be done if there is a moral or legal obstacle.
Some of these moral or legal obstacles may be:
(1)
when a daughter is already married as she has to live with the husband;
(2)
where the defendant abducted the plaintiff and married her to avoid prosecution
but never lived with her; (Sentencia [Cuba] of February 15, 1937).
(3)
if the natural father of a child has already married a woman, not the mother of
the child. (US vs. Alvin, 576; Pascual vs. Martinez, 37 O.G. 2418).
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