ARTICLES 390-392 of the FAMILY CODE OF THE PHILIPPINES

The FAMILY CODE OF THE PHILIPPINES

Title XIV – ABSENCE

Chapter 4 – Presumption of Death

ARTICLES 390, 391, 392

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Article 390

After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n)

The law lays down the presumption of death of a person after an absence of seven (7) years, provided that it is unknown whether he still alive or not. In that case, he is presumed dead for all purposes, except the opening of succession.

However, if he has been absent for ten (10) years or more, he shall be presumed dead for all purposes, including the opening of his succession.

But if the person disappears after the age of seventy five (75) years, he shall presumed dead after an absence of five years, including of his succession. Because due to his old age, he is presumed dead after 5 years and less likely that he will survive longer.

May a person be declared presumptively dead? No, as a general rule, because:

1. it would be useless to make such declaration, since it is already declared by law;
2. the judgment would never really become final, since the person involved may actually turn out to be still alive.

 

Article 391

The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
2. A person in the armed forces who has taken part in war, and has been missing for four years;
3. A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

The reason why a person is presumed dead under these circumstances provided in Article 391 is the great possibility that the person is dead after years from the time of the loss of the vessel or other catastrophe.

Rules:

1. The period of four (4) years in Article 391, NCC has been reduced to two years under Article 41 of the Family Code, for purposes of remarriage, but the present spouse has to go to court in a summary proceeding for purposes of having the absent spouse declared presumptively dead so that he/she can contract a subsequent marriage. If the present spouse does not go to court for that purpose and contracts a subsequent marriage, the same is void and bigamous.
2. Article 391, NCC governs extraordinary absence. From the language of the law, the period of four (4) years shall be reckoned at the beginning of the period pursuant to that decision of the Court of Appeals in Judge Adbocate General v. Gonzales, et al., 48 O.G. 12, p. 5329.
3. The presumption of death of persons aboard a vessel lost during a sea voyage, applies to cases wherein the vessel cannot be located nor accounted for, or when its fate is unknown or there is no trace of its whereabouts, inasmuch as the word “lost” used in referring to a vessel must be given the same meaning as “missing” employed in connection with an aeroplane, the persons taking both means of conveyance being the object of the rule expressed in the same sentence.
4. If the absentee appears or his presence is proved, he can recover his properties and the price of any properties that may have been alienated or the properties acquired therewith. He cannot, however, claim any fruits or rents.

The reason is because the possessor is presumed to be in good faith, and if that is so, he is entitled to the fruits of the properties in his possession.

The term “vessels” or “aeroplanes” include watercraft, and all aircrafts respectively. But the lost of the vessel must be during a sea voyage. This will include not only voyages in the open sea, but also passage along the mouths of rivers, canals in the course of such voyage. However, trips which are only in inland waters are not included.

War includes military operations or undertakings in armed fight. The presumption of death applies to soldiers as well as employees rendering services to the armed forces like doctors, nurses, as well as those who render voluntary services like guerillas, as well as reporters, cameramen and photographers. However, it is not enough that the disappearance of such persons be during wartime, it is necessary that it be during military operation. The disappearance of a person in the armed forces during wartime or military operations for four (4) years, may be declared presumptively dead.

Other circumstances where there is danger would include such events as earthquakes, fires, explosions, inundations, dangerous expeditions, cave-ins of mines, volcanic eruptions, landslides, etc.  In such cases, the death should be considered to have taken place on the day of the danger; and it is also from this day that the four-day period is to be computed. If the danger continues for several days, there are some who believe that the period should be counted from the day the danger commenced. It has, however, been said that the more logical view seems to be that the period should be computed from the last day of danger; in case of expeditions and similar adventures of which nothing is heard of after it has started, the date when it should have been computed, if favorably concluded, is to be taken into account.

Article 392

If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194)

The law provides for the effect of reappearance or proof of existence of the person presumed dead. When a person was presumed dead and his estate was distributed in accordance with law or his will, but he reappears, the, he can recover the properties in the condition they may be found, or the price thereof, if they have been sold or alienated, but he cannot claim the fruits or rents. The reason is that the distributees and heirs are in good faith. Under Article 544 of the Civil Code, a possessor in good faith is entitled to receive the fruits of the thing in his possession. But the moment he reappears, the possessor would no longer be entitled to receive the fruits, as they would then redound to the benefit of the owner. There would also be interruption of the possession in good faith.

In the Family Code, when the present spouse contracts a subsequent marriage after judicial declaration of presumptive death of the absentee spouse, and there is an affidavit of reappearance that is registered by an interested person in the proper civil registry, with notice to the parties of the second marriage, the latter shall be considered as automatically terminated, without prejudice to the right of the present spouse to question such reappearance. It is believed that if the absent spouse physically reappears, the subsequent marriage would still be terminated. This is because of the fact that if constructive reappearance by way of the registration of the affidavit of reappearance is enough, then with more reason physical reappearance should terminate the subsequent marriage. The added reason is that, in case an affidavit of reappearance is registered, the present spouse can question the fact of reappearance.

ABSENCE. The word “absence” in the rule that a presumption of death is raised by the “absence” of a person from his domicile when unheard of for seven years, means that a person is not at the place of his domicile and his actual residence is unknown, and it is for this reason that his existence is doubtful, and that, after seven years of such absence, his death is presumed.

PRESUMPTION OF DEATH. Article 390 creates the presumption of death. Except for purposes of remarriage under Article 41 of the Family Code, there is no need for filing a case to declare that one is presumptively dead.

PERIOD. For purposes of remarriage under Article 41 of the Family Code, four consecutive years is enough for a person to be judicially declared presumptively dead. For other purposes, there is no need of a judicial declaration but the required period for one to be presumed dead is seven years except for the opening succession. In the latter case, an absence of 10 years is mandated by law except when the person disappeared after the age of 75 years in which case an absence of five years is enough. In these cases, the person shall be presumed dead at the end of the seven-year period.

However, if the disappearance occurred under dangerous circumstances as specified in Article 391, the period is shortened to four years for all purposes including the division of the estate among the heirs but excluding the situation under Article 41 of the Family Code with respect to the present spouse wanting to remarry, in which case a judicial declaration of presumptive death is needed and the period is shortened to two years.

MISSING PERSON. Article 391 describes situations where a person has been missing under dangerous circumstances. In this regard, it has been held that Article 391 cannot apply to a person who accidentally fell into the sea while on board a vessel and consequently drowned. This is so because “the vessel was not lost during a sea voyage” in such a particular case (Caltex v Villanueva, 2 SCRA 897). In the same vein, therefore, if a person cannot be found in a wreckage of an airplane which crashed, Article 391 will not apply because the airplane is not missing. In case if Article 391 (2), the person subject of inquiry must have “taken part in the war”. Relevantly, in case Article 391 is applicable in a particular situation, it shall be presumed that the person died at the time when he was last heard of and not at the end of the period.

 

References:

Judge Albano, Ed Vincent S. (2017). Family Code of the Philippines.

Sta. Maria, Melencio S. (2015). Persons and Family Relations Law.

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

 

CASE DIGEST – ARTICLES 390-392, FAMILY CODE – Tamargo v CA

Presumption of death:

CASE DIGEST – Articles 390-392

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VICTORY SHIPPING LINES, INC., petitioner,
vs.
WORKMEN’S COMPENSATION COMMISSION, ET AL., respondents.

G.R. No. L-9268           November 28, 1959

PARAS, C.J.:

Facts:

On February 23, 1954, Pedro Icong, an employee of the petitioner Victory Shipping Lines, Inc, was sleeping on board the latter’s vessel, M/V “Miss Leyte”, when it caught fire. Awakened by the fire, Pedro Icong jumped overboard and has not been heard of.

Pedro Icong was unmarried and his father Juan Icong was his partial dependent. On April 30, 1954, the latter filed with the Workmen’s Compensation Commission and a petitioner a notice of claim for death compensation. The petitioner reported the matter to the Commission only on August 17, 1954. The Commission rendered an award in favor of respondent Juan Icong in the sum of P2,038.40, plus P200.00 for burial expenses and P20.00 as legal fee.

Issue:

Whether or not Article 391 of the New Civil Code applies in the case at bar.

Held:

According to Article 391 of the Civil Code of the Philippines, the person to be presumed dead must be unheard of for at least four years; that inasmuch as Pedro Icong had been missing only for a few months from the alleged accident, there is as yet legal presumption of death on which to base any award for compensation.

The respondent Workmen’s Compensation Commission obviously did not apply the rule on presumption of death because in the employer’s report of the accident submitted by petitioner, laborer Pedro Icong was reported as the only casualty, and in transmitting said report petitioner’s counsel had implicitly admitted the fact of Pedro Icong’s death.

The court ruled that the act of Pedro Icong in jumping overboard upon waking up and finding the vessel on fire is not constitutive of gross negligence. Respondent Commission correctly termed it as “rather impelled by fright or by the instinct of self-preservation.”

The decision appealed from is hereby affirmed, with cost against the petitioner.

 

Source:

Victory Shipping Lines, Inc. v Workmen’s Compensation Commission, et al., G.R. No. L-9268, November 28, 1959. Retrieved from: http://www.lawphil.net/judjuris/juri1959/nov1959/gr_l-9268_1959.html.

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

CASE DIGEST – ARTICLES 220-221, FAMILY CODE – Tamargo v CA

Parental authority:

CASE DIGEST – Articles 220-221

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MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,
vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

G.R. No. 85044 June 3, 1992

FELICIANO, J.:

Facts:

On 20 October 1982, Adelberto Bundoc, a minor, 10 years old, shot Jennifer Tamargo with an air rifle causing injuries which resulted in her death. The natural parents of Tamargo filed a complaint for damages against the natural parents of Adelberto with whom he was living the time of the tragic incident.

In December 1981, spouses Sabas and Felisa Rapisura filed a petition to adopt Adelberto. The petition was granted in November 1982 that is after Adelberto had shot and killed Jennifer.

Adelberto’s parents, in their Answer, claimed that the spouses Rapisura were indispensable parties to the action since parental authority had shifted to them from the moment the petition for adoption was decreed. Spouses Tamargo contended that since Adelberto was then actually living with his natural parents, parental authority had not ceased by mere filing and granting of the petition for adoption. Trial court dismissed the spouses Tamargo’s petition.

Issue:

Whether or not the spouses Rapisura are the indispensable parties to actions committed by Adelberto.

Held:

No. In Article 221 of the Family Code states that: “Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defences provided by law.”

In the case at bar, parental authority over Adelberto was still lodged with the natural parents at the time the shooting incident happened. It follows that the natural parents are the indispensable parties to the suit for damages.

Supreme Court held that parental authority had not been retroactively transferred to and vested in the adopting parents, at the time the shooting happened. It do not consider that retroactive effect may be given to the decree of the adoption so as to impose a liability upon the adopting parents accruing at the time when adopting parents had no actual custody over the adopted child. Retroactive affect may be essential if it permit the accrual of some benefit or advantage in favor of the adopted child.

 

Source:

Tamargo v CA, G.R. No. 85044 June 3, 1992. Retrieved from: http://www.lawphil.net/judjuris/juri1992/jun1992/gr_85044_1992.html.

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

ARTICLES 220-221 of the FAMILY CODE OF THE PHILIPPINES

The FAMILY CODE OF THE PHILIPPINES

Title IX – PARENTAL AUTHORITY

Chapter 3 – Effect of Parental Authority upon the Persons of the Children

ARTICLES 220-221

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Article 220

The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties:

1. To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;
2. To give them love and affection, advice and counsel, companionship and understanding;
3. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;
4. To enhance, protect, preserve and maintain their physical and mental health at all times;
5. To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;
6. To represent them in all matters affecting their interests;
7. To demand from them respect and obedience;
8. To impose discipline on them as may be required under the circumstances; and
9. To perform such other duties as are imposed by law upon parents and guardians. (316a)

This article provided the duties and responsibilities of the parents to their children. The social, mental and physical development of the child are supposed to be promoted by the parents or whoever has custody over the child.

PARENTAL RIGHTS AND DUTIES. The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience and capacity for judgement required for making life’s difficult decisions.

DUTIES OF PARENTS UNDER PRESIDENTIAL DECREE NO. 603. Article 46 of the Child and Youth Welfare Code (P.D. No. 603) also provides that parents shall have the following duties following their children: 1) to give them attention, companionship and understanding; 2) to extend to them the benefits of moral guidance, self-discipline and religious instruction; 3) to supervise their activities, including recreation; 4) to inculcate in them the value of industry, thrift and self-reliance; 5) to stimulate their interest in civic affairs, teach them the duties of citizenship, and develop their commitment to their country; 6) to advise them properly in any matter affecting their development and well-being; 7) to always set a good example; 8) to provide them with the adequate support as defined in the law particularly the Family Code; and 9) to administer their property, if any, according to their best interest subject to the provisions of the Family Code particularly Article 225.

REPRESENTATIVE OF THE CHILDREN. Article 220, subparagraph 8 of the Family Code provides that the parents shall also have the duty to represent the unemancipated children in all matters affecting interest.

The cited Article 311 of the Civil Code is now Article 211 of the Family Code which provides that “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”.

DISCIPLINARY ACTIONS. Under the second paragraph of Article 211 of the Family Code, children shall always observe respect and reverence toward their parents and are obliged to obey them as long as the children are under their parental authority. Under Article 220(7) and (8), parents have the right to demand from the children respect and obedience and to impose discipline on them as may be required under the circumstances. They may inflict a reasonable measure of corporal punishment.

RIGHTS OF THE CHILDREN. With respect to the duties of the parents, they must likewise know that there are certain rights of the children which they are duty-bound to accord. Thus, Article 356 of the Civil Code of 1950 still effectively that every child:

1. is entitled to parental care;
2. shall receive at least elementary education;
3. shall be given moral and civic training by the parents or guardian; and
4. has a right to live in an atmosphere conducive to his physical, moral and intellectual development.

Under P.D No. 603, otherwise known as the Child and Youth Welfare Code, the right of the child are likewise enumerated in Article 3 thereof, thus:

Article 3. Rights of the Child. – All children shall be entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors.

1. Every child is endowed with the dignity and worth of a human being from the moment of his conception, as generally accepted in medical parlance, and has, therefore, the right to be born well.

2. Every child has the right to a wholesome family life that will provide him with love, care and understanding, guidance and counseling, and moral and material security.

The dependent or abandoned child shall be provided with the nearest substitute for a home.

3. Every child has the right to a well-rounded development of his personality to the end that he may become a happy, useful and active member of society.

The gifted child shall be given opportunity and encouragement to develop his special talents.

The emotionally disturbed or socially maladjusted child shall be treated with sympathy and understanding, and shall be entitled to treatment and competent care.

The physically or mentally handicapped child shall be given the treatment, education and care required by his particular condition.

4. Every child has the right to a balanced diet, adequate clothing, sufficient shelter, proper medical attention, and all the basic physical requirements of a healthy and vigorous life.

5. Every child has the right to be brought up in an atmosphere of morality and rectitude for the enrichment and the strengthening of his character.

6. Every child has the right to an education commensurate with his abilities and to the development of his skills for the improvement of his capacity for service to himself and to his fellowmen.

7. Every child has the right to full opportunities for safe and wholesome recreation and activities, individual as well as social, for the wholesome use of his leisure hours.

8. Every child has the right to protection against exploitation, improper influences, hazards, and other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral development.

9. Every child has the right to live in a community and a society that can offer him an environment free from pernicious influences and conducive to the promotion of his health and the cultivation of his desirable traits and attributes.

10. Every child has the right to the care, assistance, and protection of the State, particularly when his parents or guardians fail or are unable to provide him with his fundamental needs for growth, development, and improvement.

11. Every child has the right to an efficient and honest government that will deepen his faith in democracy and inspire him with the morality of the constituted authorities both in their public and private lives.

12. Every child has the right to grow up as a free individual, in an atmosphere of peace, understanding, tolerance, and universal brotherhood, and with the determination to contribute his share in the building of a better world.

 

Article 221

Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180[2]a and [4]a).

LIABILITY OF FATHER OR MOTHER. It must be emphasized that the liability of the father or mother of a minor attaches when such minor lives in their company. If a minor child is staying in Manila while his parents are in the province, and the child commits an act or omission causing damage to another, the parents are not liable. Minority alone of the child does not make the parents liable for his acts. Such minority must be couple with the fact that the child is living in the company of the father or mother.

For the tortuous act of a minor, the parents are not liable together. The law speaks of an alternative situation where the mother is liable only in case of death or incapacity of the father. Hence, if a minor child in the company of his parents commits a tortuous act, his father should be sued alone. In the absence of the father or in his incapacity, the mother can be made liable (Romano, et al v Parinas, et al., 101 Phil. 140).

 

 

References:

Judge Albano, Ed Vincent S. (2017). Family Code of the Philippines.

Sta. Maria, Melencio S. (2015). Persons and Family Relations Law.

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

 

 

 

 

CASE DIGEST – ARTICLE 183, FAMILY CODE – Santos v Republic

Adoption:

CASE DIGEST – Article 183

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IN THE MATTER OF THE ADOPTION OF THE MINOR, EDWIN VILLA Y MENDOZA. LUIS E. SANTOS, JR. and EDIPOLA V. SANTOS, petitioners-appellants,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.

G.R. No. L-22523             September 29, 1967

ANGELES, J.:

Facts:

Petitioner Luis and Edipola Santos filed the petition before the court praying that the minor Edwin Villa y Mendoza, four (4) years old, be declared their son by adoption.

The petitioners are both 32 years of age, Filipinos, married in 1957 and have maintained a conjugal home of their own. They do not have a child of their own blood, nor has any one of them been convicted of a crime involving moral turpitude.

Edwin Villa y Mendoza is a child of Francisco Villa and Florencia Mendoza who are the common parents of the petitioner-wife Edipola Villa Santos and the minor. Luis E. Santos, Jr., is a lawyer, with business interests in a textile development enterprise and the IBA electric plant, and is the general manager of Medry Inc. and the secretary-treasurer of Bearen Enterprises. His co-petitioner-wife, is a nurse by profession.

The parents of the child testified that they entrusted him to the petitioners who reared and brought him up, resulting to a deep and profound love for each other. The natural parents of the minor testified that they have voluntarily given their consent to the adoption of their son by the petitioners, and submitted their written consent and conformity to the adoption, and that they fully understand the legal consequences of the adoption of their child by the petitioners.

Issue:

Whether or not an elder sister may adopt a younger brother.

Held:

Article 335 of the Civil Code enumerates those persons who may not adopt, and it has been shown that petitioners-appellants herein are not among those prohibited from adopting.

Article 339 of the same code names those who cannot be adopted, and the minor child whose adoption is under consideration, is not one of those excluded by the law.

Article 338, on the other hand, allows the adoption of a natural child by the natural father or mother, of other illegitimate children by their father or mother, and of a step-child by the step-father or stepmother. This last article is, of course, necessary to remove all doubts that adoption is not prohibited even in these cases where there already exist a relationship of parent and child between them by nature. To say that adoption should not be allowed when the adopter and the adopted are related to each other, except in these cases enumerated in Article 338, is to preclude adoption among relatives no matter how far removed or in whatever degree that relationship might be, which in the opinion of this court is not the policy of the law. The interest and welfare of the child to be adopted should be of paramount consideration.

 

 

 

Source:

Santos v Republic, G.R. No. L-22523, September 29, 1967. Retrieved from: http://www.lawphil.net/judjuris/juri1967/sep1967/gr_l-22523_1967.html.

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

ARTICLE 183 of the FAMILY CODE OF THE PHILIPPINES

The FAMILY CODE OF THE PHILIPPINES

Title VII – ADOPTION

ARTICLE 183

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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 hAis 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 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, E.O. No. 91 and P.D. No. 603)

Republic Act No. 8552, an Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children and For Other Purposes which was approved on February 25, 1998 introduced certain amendments to the law on adoption in the Family Code. Among the salient amendments introduced are the following:

“Sec. 7. Who may adopt. — The following may adopt:

Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his her children in keeping with the means of the family. The requirement of sixteen (16) years difference between the age of the adopted and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent;

QUALIFICATIONS OF AN ADOPTER.

1. he must be of age;
2. he must be in possession of full civil capacity and legal rights;
3. he must be at least sixteen years older than the 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;
4. he must be of good moral character;
5. he has not been convicted of any crime involving moral turpitude.

The adopter must be in a position to support, and emotionally, psychologically and financially capable of caring for his children, legitimate or illegitimate. If the court finds that he could not even support his children in keeping with means of the family, the court must deny the petition for adoption.

Only minors may be adopted. However, under Article 187, Family Code, a person of legal age may be adopted if he is a child by nature if the adopter or his or her spouse, or prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority.

The law, in requiring that the adopter must be at least sixteen years older than the adopted, is merely trying to imitate nature, where it is impossible to have a child older than the father or the mother. One reason for the rule is that, it is necessary that the adopter has ascendancy over the adopted for it may not be possible for a younger person to have ascendancy over an older one. Furthermore, the adopter must be at least 18 years of age, the same being the age of majority, without prejudice to the Inter-country Adoption Law or R.A. No. 8043.

MORAL TURPITUDE. The law now specifically adds that the adopter must of “good moral character, has not been convicted of any crime involving moral turpitude”. The law has to be so because a person who is not of good moral character or has been convicted of a crime involving moral turpitude may not have the moral ascendancy to provide for the moral, psychological development of the adopted, the preparation for a better life, not only economically, but even psychologically and morally are the concerns of the State.

 

References:

Judge Albano, Ed Vincent S. (2017). Family Code of the Philippines.

Sta. Maria, Melencio S. (2015). Persons and Family Relations Law.

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

CASE DIGEST – ARTICLES 152-153, FAMILY CODE – Taneo v. CA

Family home:

CASE DIGEST – Articles 152-153

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PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND, CILIA T. MORING and HUSBAND, petitioners,
vs.
COURT OF APPEALS and ABDON GILIG, respondents.

G.R. No. 108532 March 9, 1999

KAPUNAN, J.:

Facts:

Two (2) of petitioners’ properties were levied to satisfy the judgment amount of about P5,000.00: one was a parcel of land located in Barrio Igpit, Municipality of Opol, Misamis Oriental with an area of about five (5) hectares, and the other was the family home also located at Igpit, Opol, Misamis Oriental.

On February 12, 1966, the subject properties were sold to the private respondent as the highest bidder. However, the petitioner failed to redeem the same, so a final deed of conveyance was executed on February 9, 1968, definitely selling, transferring, and conveying said properties to the private respondent.

The petitioner filed an action to declare the deed of conveyance void and to quiet title over the land with a prayer for a writ of preliminary injunction. They agreed that the property was acquired through free patent, therefore, it is inalienable and not subject to any encumbrance for the payment of debt, pursuant to Commonwealth Act No. 141. They further alleged that the Sheriff’s Deed of Conveyance issued by Deputy Provincial Sheriff Jose Yasay in favour of the private respondent over the subject property including their family home which was extrajudicially constituted.

Private respondent refuted the petitioner’s contentions alleging that he lawfully acquired the subject properties described as Lot No. 5545, Cad. 237 was a private land, by virtue of a Sheriffs Sale on February 12, 1996.

Private respondent averred that the subject land was originally owned by Lazaro Ba-a who sold the land to Pablo Taneo on September 18, 1941, as evidenced by an Escritura de Venta. Despite it being a private land, Pablo Taneo filed an application for free patent which was final only in 1979.

As counterclaim, private respondent alleged that since petitioners are still in possession of the subject property, he has been deprived of acts of ownership and possession and therefore, prayed for payment of rentals from February, 1968 until possession has been restored to them.

In its decision of March 27, 1989, the RTC dismissed the complaint.

Issue:

Whether or not Taneo’s family home is exempt from execution.

Held:

No, the trial court found that on March 7, 1964, Pablo Taneo constituted the house in question, erected on the land of Vacalares, as the family home. The instrument constituting the family home was registered only on January 24, 1966. The money judgment against Pablo Taneo was rendered on January 24, 1964. Thus, at the time when the debt was incurred, the family home was not yet constituted or even registered. The petitioners’ alleged family home, as constituted by their father is not exempt as it falls under the exception of Article 243 (2).

 

Source:

Taneo v Court of Appeals, G.R. No. 108532 March 9, 1999. Retrieved from: http://www.lawphil.net/judjuris/juri1999/mar1999/gr_108532_1999.html.

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

ARTICLES 152-153 of the FAMILY CODE OF THE PHILIPPINES

The FAMILY CODE OF THE PHILIPPINES

Title V – THE FAMILY

Chapter 2 – The Family Home

ARTICLES 152-153

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Article 152

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. (223a)

Article 153

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. (223a)

CONSTITUTION. Under the Family Code, a family home is deemed constituted on a house and land from the time it is actually occupied as a family residence (Arriola v Arriola, G.R. No. 177703, January 28, 2008, 542 SCRA 666).

The requirement of house and land as constitutive of a family home stresses the element of permanence. Hence, a boat on water cannot be constituted a family home.

If the owners, husband and wife, head of the family or the beneficiaries actually reside in the premises, it can be a family home as contemplated by law. Residing in a family home is a real right (Taneo v Court of Appeals, 304 SCRA 308).

The occupancy must be actual and not constructive, something which is merely possible or presumptive (Patricio v Dario III, G.R. No. 170829, November 20, 2006). Hence, one cannot claim that he or she has occupied the premises at the time his or her overseer, maid, houseboy or driver has lived in the said place because occupancy by the one claiming the house as a family must be actual and not constructive.

All residential houses used as a family home, with or without having been judicially or extrajudicially constituted as such prior to the effectivity of the Family Code, are deemed constituted by operation of law as a family home on August 3, 1988.

A family home cannot be constituted by the wife or husband alone. Constitution must be done jointly by both husband and wife. An unmarried head of the family, however, can constitute by himself or herself alone. The occupancy of any of the beneficiaries can likewise constitute a home as a family home. Hence, even if a married person is legally separated or de facto separated, a family home can still be constituted if any of his or her beneficiaries actually occupies the land and the house of such married person with his or her consent and pursuant to the other requirements of the Family Code.

A family home is not affected by the type of property regime of the spouses or by the fact that the marriage has been nullified (Valdez v RTC, 260 SCRA 221).

EXEMPT FROM EXECUTION. The exemption from execution, forced sale or attachment provided by law is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein (Modequillo v Breva, 185 SCRA 766).

WAIVER, LACHES, AND ESTOPPEL. It is a personal right which can be claimed only by the judgment debtor, and not by the sheriff, and therefore generally the fact that it is a family home and that it is under the exemption must be claimed and proved before the sale at the public auction (Versola v Court of Appeals, G.R. No. 164740, July 31, 2006, 497 SCRA 385).

The Supreme Court ruled in Fortaleza v Lapitan, G.R. No. 178288, August 15, 2012, that failure to do so would estop the party from later claiming the exemption.

The exemption can be waived or be barred by laches by the failure to set up and prove the status of the property as a family home or a reasonable time thereafter (Olivia-de Mesa v Acero, Jr., G.R. No. 185064, January 16, 2012).

EXCEPTIONS FROM THE EXEMPTION. The exemption is not, however, absolute as there are obligations and indebtedness excluded from the exemption which are enumerated in Article 155, i.e. the whole amount obtained from the sale of the family home may be taken by the creditor or oblige.

 

References:

Judge Albano, Ed Vincent S. (2017). Family Code of the Philippines.

Sta. Maria, Melencio S. (2015). Persons and Family Relations Law.

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

 

 

CASE DIGEST – ARTICLE 117, FAMILY CODE – Lilius, et al v. The Manila Railroad Company

Conjugal partnership property:

CASE DIGEST – Article 117

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ALEKO E. LILIUS, ET AL., plaintiffs-appellants,
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.

G.R. No. L-39587             March 24, 1934

VILLA-REAL, J.:

 

Facts: 

Plaintiff Aleko Lilius, his wife Sonja Maria Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila for a sight-seeing trip in Pagsanjan, Laguna. It was the first time that he made said trip although he had already been to many places, driving his own car, in and outside the Philippines. He was entirely unacquainted with the conditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap.

Before reaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eight meters from the crossing, Lilius saw an autotruck parked on the left side of the road. Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He slowed down and sounded his horn for the people to get out of the way.

With his attention thus occupied, he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge black mass fling itself upon him, which turned out to be locomotive No. 713 of the Manila Railroad Company’s train. The train struck the plaintiff’s car right in the center causing injury to the three victims.

Issue:

Whether or not Manila Railroad Company is liable for damages.

Held:

Yes, the court is of that the accident was due to negligence on the part of the defendant-appellant company alone for not having any semaphore at the crossing to serve as a warning to passers-by of its existence in order that they might take necessary precautions before crossing the railroad and on the part of its employees for not having remained at his post at the crossing in question to warn passers-by of the approaching train.

 

 

Source:

Lilius, et al v. Manila Railroad Company, G.R. No. L-39587, March 24, 1934. Retrieved from: http://www.lawphil.net/judjuris/juri1934/mar1934/gr_l-39587_1934.html.

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna

ARTICLE 117 of the FAMILY CODE OF THE PHILIPPINES

The FAMILY CODE OF THE PHILIPPINES

Title IV – PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Chapter 4 – Conjugal Partnership of Gains

Section 3 – Conjugal Partnership Property

ARTICLE 117

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Article 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, 154, 155, 159)

 

EFFECT IF PROPERTY IS ACQUIRED THROUGH CONJUGAL FUNDS. If properties were acquired through conjugal funds during the marriage, such properties are conjugal. This is true even if the properties were acquired for only one of the spouses.

Illustration: A and B are married. During the marriage, they acquired a parcel of land using conjugal funds but the same was registered in the name of B. Under Article 117 (a) of the Family Code, the property is conjugal.

In Marigsa v Macabuntoc, 17 Phil. 107, the Supreme Court ruled that the registration in the husband’s name alone is immaterial if the property is acquired with conjugal funds.

SALARIES ARE CONJUGAL. Benefits obtained from the salaries of the spouse and their businesses are considered as conjugal properties of the husband and wife. The reason if that, they were obtained thru labor or industry of a spouse during the marriage.

OWNERSHIP OF FRUITS OF SEPARATE PROPERTIES. Fruits of the common and separate properties of the spouses are conjugal properties. Also, it was ruled that a business (single proprietorship) established during the marriage is presumed conjugal and that the fact that it is registered in the name of the spouses does not destroy its conjugal nature.

ACQUISITION BY ONEROUS TITLE FROM COMMON FUND. If that which is acquired by right of redemption or by exchange with other property belonging only to one of the spouses and that which is purchased with exclusive money of the wife or of the husband belong exclusively to such wife or husband, it follows necessarily that that which is acquired with money of the conjugal partnership belongs thereto or forms part threof. (Zulueta v Pan American World Airways, Inc., 49 SCRA 1). This is true even if the acquisition be for the partnership, or for only one of the spouses.

Damages granted by the courts in favour of any of the spouses arising out of a contract solely financed by the conjugal partnership of gains and consequently unduly breached by a third party belongs to the conjugal partnership of gains.

Damages arising out of the illegal detention of the exclusive property of any of the spouses shall pertain to the conjugal partnership if such detention deprived the partnership of the use and earnings of the same. (Bismorte v Aldecoa, 17 Phil. 480).

However, in cases of damages awarded to one of the spouses as a result of physical injuries inflicted by a third party, said damages exclusively belong to the said injured spouse.

PROPERTY ACQUIRED THROUGH INDUSTRY, LABOR, AND PROFESSION AND THROUGH OCCUPATION. The law also provides that anything obtained from the labor, industry, work and profession of either or both of the spouses is conjugal. It likewise provides that those acquired through occupation such as fishing or hunting are conjugal.

FRUITS AND EARNINGS FROM PROPERTIES. Fruits of the common property and net fruits of the exclusive property belong to the conjugal partnership.

Net fruits are referred to because the fruits of the separate property will be applied first to the expenses of administration of the said separate property and the remaining balance of the said fruits which constitute the net fruits shall be considered conjugal (Minutes of the 174^th Joint Meeting of the Civil Code and Family Law Committees held on February 28, 1987, page 13).

HIDDEN TREASURE. 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 is conjugal partnership property.

LIVESTOCK. Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse shall be conjugal.

CHANCE. Those obtained through chance are considered conjugal. Losses from gambling or betting shall be borne exclusively by the loser-spouse. Article 117 (7) implies a situation where the spouse in engaging in such activity has parted with some valuable consideration.

Hence, is a spouse is given by a third person a sweepstakes ticket without consideration and such sweepstakes ticket won P1,000,000.00, such winning shall be considered income and, therefore, shall belong to the conjugal partnership of gains.

 

References:

Judge Albano, Ed Vincent S. (2017). Family Code of the Philippines.

Sta. Maria, Melencio S. (2015). Persons and Family Relations Law.

 

 

By:

JOY G. DE LOYOLA

Laguna State Polytechnic University – Sta.Cruz, Laguna