Civil Law - chanroblesbar

8/20/2019 Civil Law - chanroblesbar

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Survey of SC Decisions in

Civil Law

Dean ED VINCENT S. ALBANO

BIRTH

ARTICLES 40, 41, 42, NCCBIRTH AND PERSONALITY; EFFECT OF DEATH

Acquisition of personality.

One question has been asked in a case where a fetus died. Are the parents entitled tobereavement benefits under the CBA with the employer? But before the question can be answered,we must determine whether the fetus can be considered a dependent within the meaning of the

term under the CBA. The answer is, Yes because a child does not need to be born to be considered adependent because even during the period of conception where the fetus is still inside the womb ofthe mother, it is already dependent upon her for sustenance to survive. In fact, it is not necessarythat the fetus be born inorder that he may die. It cannot be said that only one with juridicalpersonality can die and a dead fetus never acquired juridical personality. That is not quite correct,for even the fetus already attains life during conception and can die in the womb of the mother.

This unique situation occurred in a case where the parents of an unborn fetus weredemanding bereavement leave with pay and other benefits because of the death of the fetus. It wascontended however that no such benefits are due as no death of an employee’s dependent hadoccurred. The death of a fetus, at whatever stage of pregnancy, was excluded from the coverage ofthe CBA since what was contemplated by the CBA was the death of a fetus which did not acquire any

juridical personality, it was further contended. But as said earlier, even a fetus has a personality,

especially so that the CBA can be considered as a contract between the parent and the employer andthe bereavement benefits can be considered as a stipulation where the fetus is the subject.

Article 40 provides that a conceived child acquires personality only when it is born, andArticle 41 defines when a child is considered born. Article 42 plainly states that civil personality isextinguished by death.

Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied in relation toArticle 37 of the same Code, the very first of the general provisions on civil personality, which reads:

Art. 37. Juridical capacity, which is the fitness to be the subjectof legal relations, is inherent in every natural person and is lost onlythrough death. Capacity to act, which is the power to do acts with legaleffect, is acquired and may be lost.

Articles 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover,while the Civil Code expressly provides that civil personality may be extinguished by death, it doesnot explicitly state that only those who have acquired juridical personality could die.

Death has been defined as the cessation of life. (Black’s Law Dictionary). Life is notsynonymous with civil personality. One need not acquire civil personality first before he/she coulddie. Even a child inside the womb already has life. No less than the Constitution recognizes the lifeof the unborn from conception, (Art. II, Sec. 12, Constitution) that the State must protect

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equally with the life of the mother. If the unborn already has life, then the cessation thereof evenprior to the child being delivered, qualifies as death.

The unborn child can be considered a dependent under the CBA. A dependent is “one whorelies on another for support; one not able to exist or sustain oneself without the power or aid ofsomeone else.” Under said general definition, even an unborn child is a dependent of its parents.

The child could not have reached 38-39 weeks of its gestational life without depending upon itsmother, for sustenance. Additionally, it is explicit in the CBA provisions in question that thedependent may be the parent, spouse, or child of a married employee; or the parent, brother, orsister of a single employee. The CBA did not provide a qualification for the child dependent , suchthat the child must have been born or must have acquired civil personality, as employer averred.Without such qualification, then child shall be understood in its more general sense, which includesthe unborn fetus in the mother’s womb.

The term legitimate merely addresses the dependent child’s status in relation to his/herparents. In Angeles v. Maglaya, G.R. No. 153798, September 2, 2005, 469 SCRA 363, it was saidthat a legitimate child is a product of, and, therefore, implies a valid and lawful marriage. Removethe element of lawful union and there is strictly no legitimate filiation between parents and child.Article 164 of the Family Code cannot be more emphatic on the matter: “Children conceived or

born during the marriage of the parents are legitimate.”

Conversely, in Briones v. Miguel , 483 Phil. 483 (2004) an illegitimate child was defined to beas follows:

The fine distinctions among the various types of illegitimate children have beeneliminated in the Family Code. Now, there are only two classes of children --legitimate (and those who, like the legally adopted, have the rights of legitimatechildren) and illegitimate. All children conceived and born outside a valid marriageare illegitimate, unless the law itself gives them legitimate status.

It is apparent that according to the Family Code and the afore-cited jurisprudence, thelegitimacy or illegitimacy of a child attaches upon his/her conception. In the present case, theparents of the unborn fetus were validly married and that their child was conceived during said

marriage, hence, making said child legitimate upon her conception. (Continental Steel ManufacturingCorp. v. Hon. Accredited Voluntary Arbitrator, et al., G.R. No. 182836, October 13, 2009).

MARRIAGE

False affidavit on 5-year period of

cohabitation; as if marriagecelebrated without a license; void.

In Rep. v. Jose Dayot , G.R. No. 175581, March 28, 2008, Nazario, J, the SC once again hadthe occasion to rule that the requirement of a marriage license for the validity of marriage ismandatory. One exception is, if the parties have live together as husband and wife without any legalimpediment to marry one another. In lieu of the license, an affidavit of cohabitation would besufficient.

In this case, Jose and Felisa were introduced to each other in March 1986. In June 1986, Joselived in the house of Felisa as a boarder or they lived together barely 5 months before they gotmarried. In 1986, Felisa asked him to accompany her to the Pasay City Hall to claim a packagewhere he was asked to sign documents. He initially refused but he was cajoled by Felisa, hence, hesigned the same, only to find out that he contracted marriage with her. He filed a complaint forannulment and/or declaration of nullity of the marriage alleging that it was a sham marriage, as nomarriage ceremony was held; that he did not execute an affidavit stating that they lived as husbandand wife for at least 5 years. Felisa contended otherwise and defended the validity of their marriage.




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After trial, the RTC dismissed the complaint, ruling that a person in his right mind would easilysuspect any attempt to make him or her sign a blank sheet of paper.

The Court of Appeals however, declared their marriage void.

The Court of Appeals relied on the ruling in Niñal v. Bayadog, 384 Phil 661 (2000) and

reasoned that:

In Niñal v. Badayog, where the contracting parties to a marriage solemnized without amarriage license on the basis of their affidavit that they had attained the age majority, that beingunmarried, they had lived together for at least five (5) years and that they desired to marry eachother, the Supreme Court ruled as follows:

“x x x In other words, the five – year common --- law cohabitation period, which is countedback from the date of celebration of marriage, should be a period of legal union had it not been forthe absence of the marriage. This 5-year period should be the years immediately before the day ofthe marriage and it should be a period of cohabitation characterized by exclusivity – meaning nothird party was involved at any time within the 5 years and continuity – that is unbroken. Otherwise,if that continuous five year cohabitation period is computed without any distinction as to whether the

parties were capacitated to marry each other during the entire five years, then the law would besanctioning immorality and encouraging parties to have common law relationships and placing themon the same footing with those who lived faithfully with their spouse. Marriage being a specialrelationship must be respected as such and its requirements must be strictly observed. The

presumption that a man and a woman deporting themselves as husband and wife is based on theapproximation of the requirement of the law. The parties should be afforded any excuse to notcomply with every single requirement and later use the same missing element as a pre-conceivedescape ground to nullify their marriage. There should be no exemption from securing a marriagelicense unless the circumstances clearly fall within the ambit of the exception. It should be notedthat a license is required in order to notify the public that the two persons are about to be united inmatrimony and that anyone who is aware or who has any knowledge of any impediment to the unionof the two shall make it known to the local civil registrar.

Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage

license, save marriages of exceptional character, shall be void from the beginning. Inasmuch as themarriage between Jose and Felisa is not covered by the exception to the requirement of a marriagelicense, it is, therefore void ab initio because of the absence of marriage license.

The reason for the law, (Niñal v. Bayadog) as espoused by the Code Commission, is that thepublicity attending a marriage license may discourage such persons who have lived in a state ofcohabitation from legalizing their status.

It is not contested that the marriage of Jose and Felisa was performed without a marriagelicense. In lieu thereof, they executed an affidavit declaring that “they have attained the agematurity; that being unmarried, they have lived together as husband and wife for at least five years;and that because of this union, they desire to marry each other. One of the central issues in thePetition at bar is thus: whether the falsity of an affidavit of marital cohabitation, where the partieshave in truth fallen short of the minimum five-year requirement, effectively renders the marriage

void ab initio for lack of a marriage license.

The exception of a marriage license under Article 76, NCC applies only to those who have livetogether as husband and wife for at least five years and desire to marry each other. The Civil Code,in no ambiguous terms, places a minimum period he had, since the language of Article 76 is precise.The minimum requisite of five years of cohabitation is an indispensability carved in the language ofthe law. For a marriage celebrated under Article 76 to be valid, this material fact cannot bedispensed with. It is embodied in the law not as a directory requirement, but as one that partakes ofa mandatory character.




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It is indubitably established that Jose and Felisa have not lived together for five years at thetime they executed their sworn affidavit and contracted marriage. The Republic admitted that Joseand Felisa started lived together only in June 1986, or barely five months before the celebration oftheir marriage.

The insistence of the Republic that the falsity of the statements in the parties’ affidavit willnot affect the validity of marriage, since all the essential and formal requisites were complied with isnot quite correct. The argument deserves scan merit. Patently, it cannot be denied that the marriagebetween Jose and Felisa was celebrated without the formal requisite of a marriage license. NeitherJose and Felisa meet the explicit legal requirement in Article 76, that they should have lived togetheras husband and wife for at least five years, so as to be expected from the requirement of a marriagelicense.

Falsity of statement, not mere irregularity.

The ratiocination of the Republic that as a marriage under a license is not invalidated by thefact that the license was wrongfully obtained, so must a marriage not be invalidated by a fabricatedstatement that the parties have cohabited for at least five years as required by law, is not correct.

The contract is flagrant. The former is with reference to an irregularity of the marriage license, andnot to the absence of one. Hence, there is no marriage license at all. Furthermore, the falsity of theallegation in the sworn affidavit relating to the period of the parties’ cohabitation, which would havequalified their marriage as an exception to the requirement for a marriage license, cannot be a mereirregularity, for it refers to a quintessential fact that the law precisely required to be deposed andattested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it isbut a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all.

Meaning of the 5-year cohabitation.

Jurisprudence has laid down the rule that the five-year common-law cohabitation periodunder Article 76 means a five-year period computed back from the date of celebration of marriage,and refers to a period of legal union had it not been for the absence of a marriage. (Niñal v.Bayadog). It covers the years immediately preceding the day of the marriage, characterized by

exclusivity – meaning no third party was involved at any time within the five years – and continuitythat is unbroken.

Spouse convicted of adultery;

right to share conjugal properties;compromise agreement

equivalent to voluntary separationof properties.

In Maquilan v. Maquilan, G.R. No. 155409, June 8, 2007, there was a blissful married life ofthe spouses, but their once sugar coated romance turned bitter when the man discovered that thewife was committing adultery. He sued her and the paramour for adultery where they wereconvicted. Thereafter, he filed a complaint for Declaration of Nullity of Marriage on the ground ofpsychological incapacity with Dissolution and Liquidation of the conjugal partnership of gains and

damages. They, however, entered into a Compromise Agreement where they separated and dividedtheir properties. Judgment was rendered approving the compromise agreement but later on he fileda motion to repudiate the Compromise Agreement as he was not properly advised by his lawyer. Itwas denied. In a petition for Certiorari before the CA, he contended that: (1) it was made within thecooling-off period; (2) the proceedings were conducted without the participation of the OSG. The CAdismissed the Petition ruling that conviction for adultery did not ipso facto disqualify her fromsharing in the conjugal property; that the cooling-off period under Article 58, Family Code has nobearing and that the presence of the OSG is not indispensable to the execution and validity of the




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Compromise Agreement since the propose of his presence is to curtail any collusion between theparties and to see to it that evidence is not fabricated.

The issue in this case involves the right to share despite conviction for adultery.

The contention that the Compromise Agreement is tantamount to a circumvention of the law

prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law and jurisprudence do not impose such disqualification.

Under Article 134 of the Family Code, separation of property may be effected voluntarily orfor sufficient cause, subject to judicial approval. The questioned Compromise Agreement which was

judicially approved is exactly such a separation of property allowed under the law. This conclusionholds true even if the proceeding for the declaration of nullity of marriage was still pending. Thisvoluntary separation of property is subject to the right of all creditors of the conjugal partnership ofgain and other person with pecuniary interest pursuant to Article 136 of the Family Code.

Effect of absence of the OSG.

Petitioner’s claim that since proceedings before the RTC were void in the absence of the

participation of the provincial prosecutor or solicitor, the voluntary separation made during thependency of the case is also void. The proceedings pertaining to the Compromise Agreementinvolved the conjugal properties of the spouses. The settlement had no relation to the questionssurrounding the validity of their marriage. Nor did the settlement amount to collusion between theparties.

In short, the Compromise Agreement can be treated as a contract contemplated by theparties separating their properties which was submitted to the court for approval as contemplated byArticle 136 of the Family Code.

DIVORCE

Validity of foreign divorce in the Philippines.

In Bayot v. CA, et al., G.R. No. 155635; Bayot v. Bayot , G.R. No. 163979, November 7,2008, Vicente and Rebecca were married on April 20, 1979. Rebecca was identified as an Americancitizen, born in Guam and of American parents. In 1996, she initiated divorce proceedings againstVicente before the Court of First Instance of the Judicial District of Sto. Domingo in DominicanRepublic. Both parties were represented by counsel. The Court granted the petition, ordering thedissolution of their marriage, leaving them to remarry again but giving them joint custody of theirchild. There was also resolution of their property relations by virtue of an Agreement which wasapproved by the same court. On March 14, 1996, Rebecca filed an action for declaration of nullity oftheir marriage (Civil Case No. 96-378), but it was withdrawn. On March 21, 2001, she filed anotheraction for declaration of nullity of their marriage on the ground of psychological incapacity (CivilCase No. 01-094). Vicente filed a Motion to dismiss on the ground of failure to state a cause ofaction and by prior judgment of divorce. Rebecca opposed on the ground that the divorce decreewas void as she was a Filipino and has been recognized as such by the DOJ. The RTC denied themotion as the divorce judgment was a matter of defense, hence, a petition for certiorari was filed

with the CA which ruled that the RTC should have granted the Motion to Dismiss.

Rebecca filed a motion for reconsideration but it was denied. Hence, Rebecca filed a petitionfor certiorari with the SC where the determinative issue, was the propriety of the granting of themotion to dismiss by the appellate court and resolves itself into the questions of: first, whetherpetitioner Rebecca was a Filipino citizen at the time the divorce judgment was rendered in theDominican Republic on February 22, 1996; and second , whether the judgment of divorce is validand, if so, what are its consequent legal effect?




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In dismissing the petition, the SC

Held: The divorce decree in Dominican Republic is valid. First, at the time of the divorce, Rebeccawas still to be recognized, assuming for argument that she was in fact later recognized, as a Filipinocitizen, but represented herself in public documents as an American citizen. At the very least, shechose, before, during, and shortly after her divorce, her American citizenship to govern her marital

relationship. Second, she secured personally said divorce as an American citizen.

Third , being an American citizen, Rebecca was bound by the national laws of the UnitedStates of America, a country which allows divorce. Fourth, the property relations of Vicente andRebecca were properly adjudicated through their Agreement executed on December 14, 1996 afterCivil Decree No. 362/96 was rendered on February 22, 1996, and duly affirmed by Civil Decree No.406/97 issued on March 4, 1997.Veritably, the foreign divorce secured by Rebecca was valid.

In Garcia v. Recio, it was ruled that a foreign divorce can be recognized here, provided thedivorce decree is proven as a fact and as valid under the national law of the alien spouse. Be this asit may, the fact that Rebecca was clearly an American citizen when she secured the divorce and thatdivorce is recognized and allowed in any of the States of the Union, the presentation of a copy offoreign divorce decree duly authenticated by the foreign court issuing said decree is, sufficient.

The existence of the divorce decree has not been denied, but in fact admitted by both parties.And neither did they impeach the jurisdiction of the divorce court nor challenge the validity of itsproceedings on the ground of collusion, fraud, or clear mistake of fact or law, albeit both appearedto have the opportunity to do so. The same holds true with respect to the decree of partition of theirconjugal property. As it was explained in Roehr v. Rodriguez :

“Before our courts can give the effect of res judicata to a foreign judgment [ofdivorce] x x x, it must be shown that the parties who opposed to the judgment hadbeen given ample opportunity to do so on grounds allowed under Rule 39, Section 50of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:

Section 50. Effect of foreign judgments. – The effect of a judgment of atribunal of a foreign country, having jurisdiction to pronounce the judgment is as

follows:

(a) In case of the judgment upon a specific thing, the judgment is conclusiveupon the title to the thing;

(b) In case of a judgment against a person, the judgment is presumptiveevidence of a right as between the parties and their successor-in-interestby a subsequent title; but the judgment may be repelled by evidence of awant of jurisdiction, want of notice to the party, collusion, fraud, or clearmistake of law or fact.

It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy.In this jurisdiction, our Rules of court clearly provide that with respect to action in

personam, as distinguished from actions in rem, a foreign judgment merelyconstitutes prima facie evidence of the justness of the claim of a party and, as such, issubject to proof to the contrary.

Rebecca, assisted by counsel, personally secured the foreign divorce whileVicente was duly represented by his counsel. As things stand, the foreign divorcedecree rendered and issued by the Dominican Republic court is valid and,consequently, bind both Rebecca and Vicente.




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Finally, the fact that Rebecca may have been duly recognized as a Filipino citizen by force ofthe June 8, 2000 affirmation by Secretary of Justice Tuquero of the October 6, 1995 Bureau Order ofRecognition will not, standing alone, work to nullify or invalidate the foreign divorce secured byRebecca as an American citizen on February 22, 1996. For, in determining whether or not a divorcesecured abroad would come within the pale of the country’s policy against absolute divorce, thereckoning point is the citizenship of the parties at the time a valid divorce is obtained.

No cause of action in the petitionfor nullity of marriage.

Upon the foregoing disquisitions, it is abundantly clear that Rebecca lacked a cause of action,since an action for declaration of nullity of marriage presupposes the existence of a marriage.

With the valid foreign divorce secured by Rebecca, there is no more marital tie binding her toVicente. There is in fine no more marriage to be dissolve or nullified. In short, Rebecca did not havethe personality anymore to file an action for nullity of her marriage.

Homosexuality is not a ground toannul marriage.

The case of Manuel Almelor v. RTC of Las Piñas City, et al., G.R. No. 79620, August 26, 2008is a story of a desperate man determined to salvage what remains of his marriage. Persistent in hisquest, he fought back all the heavy accusations of incapacity, cruelty, and doubted masculinitythrown at him.

The trial court denied his wife’s petition for nullity of their marriage as it had “no basis at allbecause the supporting grounds relied upon cannot legally make a case under Article 36 of theFamily Code.”

But instead of dismissing the petition, the trial court nullified the marriage between Manueland Leonida on the ground of vitiated consent by virtue of fraud.

Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a

homosexual and that he concealed this to Leonida at the time of their marriage. The lower courtconsidered the public perception of Manuel’s sexual preference without the corroboration ofwitnesses. Also, it took cognizance of Manuel’s peculiarities and interpreted it against his sexuality.

The Supreme Court reversed the RTC decision and

Held: Even assuming, ex gratia argumenti , that Manuel is a homosexual, the lower court cannotappreciate it as a ground to annul his marriage with Leonida. The law is clear – a marriage may beannulled when the consent of either party was obtained by fraud (Art. 45(3), Family Code), such asconcealment of homosexuality (Art. 46(4), Family Code). Nowhere in the said decision was it provenby preponderance of evidence that Manuel was a homosexual at the onset of his marriage and thathe deliberately hid such fact to his wife. It is the concealment of homosexuality, and nothomosexuality per se, that vitiates the consent of the innocent party. Such concealmentpresupposes bad faith and intent to defraud the other party in giving consent to the marriage.

Consent is an essential requisite of a valid marriage. To be valid, it must be freely given byboth parties. An allegation of vitiated consent must be proven by preponderance of evidence. TheFamily Code has enumerated an exclusive list of circumstances constituting fraud. Homosexuality

per se is not among those cited, but its concealment.




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Judgment declaring a spouse presumptively dead isunappealable; remedy is special civil action forcertiorari.

If a spouse is declared presumptively dead, the judgment cannot be appealed from. Thereason is that, the proceedings are summary in nature. This is exemplified by Article 253 of the

Family Code which provides:

“The foregoing rule in Chapters 2 and 3 hereof shall likewisegovern summary proceedings filed under Articles 41, 51, 69, 73, 96,124, and 217, insofar as they are applicable.”

Article 247 of the Family Code further says that judgment of the court shall be immediatelyfinal and executory.

In Republic v. Ferventino Tango, G.R. No. 161062, July 31, 2009, after one night together ashusband and wife, Maria informed her husband that her family was migrating to the USA. Sheassured him that she would file a petition for him so they can live together in the USA or return tothe Philippines if the petition would be denied. They had correspondences for one (1) year, until

Maria did not answer his letters anymore. He inquired from close relatives of her whereabouts, butnobody knew. He sought the help of a friend in the USA but to no avail. He filed a petition to declareher presumptively dead which was granted. The OSG filed a notice of appeal to the RTC invoking asone of the grounds the Constitutional provisions that advocate the State policy of preserving maritalinstitution. The appeal brought to fore the issue as to whether such a judgment is appealable or not.The Supreme Court ruled that it is not appealable as the judgment is immediately final andexecutory. More specifically, the SC ruled, thus:

“Article 238 of the Family Code, under Title XI: SUMMARY JUDICIALPROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary courtproceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the proceduralrules in this Title shall apply in all cases provided for in this Code

requiring summary court proceedings. Such cases shall be decided in anexpeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rulesin chapters two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shalllikewise govern summary proceedings filed under Articles 41, 51, 69,73, 96, 124 and 217, insofar as they are applicable.

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately finaland executory.”

By express provision of law, the judgment of the court in a summary proceeding shall beimmediately final and executory. As a matter of course, it follows that no appeal can be had of thetrial court’s judgment in a summary proceeding for the declaration of presumptive death of an absentspouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved partymay file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Suchpetition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts.To be sure, even if the Court’s original jurisdiction to issue a writ of certiorari is concurrent with theRTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted




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freedom of choice of court forum. (Flaminiano v. Adriano, G.R. No. 165258, February 4, 2008, 543SCRA 605). From the decision of the Court of Appeals, the losing party may then file a petition forreview on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because theerrors which the court may commit in the exercise of jurisdiction are merely errors of judgment whichare the proper subject of an appeal. (Heirs of Maura So v. Obliosca, G.R. No. 147082, January 28,2008, 542 SCRA 406).

Role of the prosecuting attorneyin actions for nullity or annulment

of marriage.

When the Supreme Court resolved the case of Republic v, CA and Molina, G.R. No. 108763,February 13, 1997, 268 SCRA 198, it imposed restrictive requirements in actions for nullity ofmarriage, like the certification by the OSG before a judgment was rendered. In fact, that was neverintended by the framers of the Family Code. That is why, in Rowena Padilla-Rumbaoa v. EdwardRumbaoa, G.R. No. 166738, August 14, 2009, there was a contention that the judgment waspremature without such certification. The SC promulgated A.M. No. 02-11-10-SC which took effecton March 15, 2003, but it was contended that such administrative matter cannot overturn Molina.More specifically, Molina decreed that:

“The trial court must order the prosecuting attorney or fiscal andthe Solicitor General to appear as counsel for the state. No decisionshall be handed down unless the Solicitor General issues a

certification, which will be quoted in the decision, briefly statingtherein his reasons for his agreement or opposition, as the case

may be, to the petition. The Solicitor General, along with theprosecuting attorney, shall submit to the court such certification withinfifteen (15) days from the date the case is deemed submitted forresolution of the court. The Solicitor General shall discharge theequivalent function of the defensor vinculi contemplated under Canon1095.

A.M. No. 02-11-10-SC which was promulgated on March 15, 2003 by the Supreme Court and

duly published -- is geared towards the relaxation of the OSG certification that Molina required.Section 18 of this remedial regulation provides:

SEC. 18. Memoranda. – The court may require the parties andthe public prosecutor, in consultation with the Office of the SolicitorGeneral, to file their respective memoranda in support of their claimswithin fifteen days from the date the trial is terminated. It may requirethe Office of the Solicitor General to file its own memorandum if thecase is of significant interest to the State. No other pleadings or papersmay be submitted without leave of court. After the lapse of the periodherein provided, the case will be considered submitted for decision, withor without the memoranda.

The amendment introduced under A.M. No. 02-11-10-SC is procedural or remedial in

character; it does not create or remove any vested right, but only operates as a remedy in aid of orconfirmation of already existing rights. The settled rule is that procedural laws may be givenretroactive effect, as held in De Los Santos v. Vda. de Mangubat:

Procedural Laws do not come within the legal conception of aretroactive law, or the general rule against the retroactive operation ofstatues - they may be given retroactive effect on actions pending andundetermined at the time of their passage and this will not violate anyright of a person who may feel that he is adversely affected, insomuch




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as there are no vested rights in rules of procedure. (G.R. No. 149508,October 10, 2007, 535 SCRA 411).

A.M. No. 02-11-10-SC, as a remedial measure, removed the mandatory nature of an OSGcertification and may be applied retroactively to pending matters. In effect, the measure cures inany pending matter any procedural lapse on the certification prior to its promulgation. The rulings in

Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353 and Navales v. Navales, G.R.No. 167523, June 27, 2008 have since confirmed and clarified that A.M. No. 02-11-10-SC hasdispensed with the Molina guideline on the matter of certification, although Article 48 mandates theappearance of the prosecuting attorney or fiscal to ensure that no collusion between the parties would takeplace. Thus, what is important is the presence of the prosecutor in the case, not the remedial requirement thathe be certified to be present.

Sale of conjugal property by a

spouse without consent of theother; effect.

In Sps. Lita De Leon & Felic Rio Tarrosa v. Anita de Leon, et al., G.R. No. 185063, July 23,2009, it was again over-emphasized that the 1950 Civil Code (now Article 96, Family Code) is very

explicit on the consequence of the husband alienating or encumbering any real property of theconjugal partnership without the wife’s consent. To a specific point, the sale of a conjugal piece ofland by the husband, as administrator, must, as a rule, be with the wife’s consent. Else, the sale isnot valid. So it is that in several cases it has been ruled that the sale by the husband of propertybelonging to the conjugal partnership without the consent of the wife is void ab initio, absent anyshowing that the latter is incapacitated, under civil interdiction, or like causes. The nullity proceedsfrom the fact that sale is in contravention of the mandatory requirements of Art. 166 of the Code.(Now Article 96, Family Code). Since the Code requires the consent of the wife before the husbandmay alienate or encumber any real property of the conjugal partnership, it follows that the acts ortransactions executed against this mandatory provision are void except when the law itselfauthorized their validity. (Article 5, NCC).

The sale of one-half of the conjugal property without liquidation of the partnership is void.Prior to the liquidation of the conjugal partnership, the interest of each spouse in the conjugal assets

is inchoate, a mere expectancy, which constitutes neither a legal nor an equitable estate, and doesnot ripen into a title until it appears that there are assets in the community as a result of theliquidation and settlement. (Abalos v. Macatangay, Jr., G.R. No. 155043, September 30, 2004, 439SCRA 649). The interest of each spouse is limited to the net remainder or “remanente liquido”(haber ganancial ) resulting from the liquidation of the affairs of the partnership after its dissolution.(Manuel v. Losano, 41 Phil. 855 (1918); Nable Jose v. Nable Jose, 41 Phil. 713 (1916). Thus, theright of the husband or wife to one-half of the conjugal assets does not vest until the dissolution andliquidation of the conjugal partnership, or after dissolution of the marriage, when it is finallydetermined that, after settlement of conjugal obligations, there are net assets left which can bedivided between the spouses or their respective heirs. (Abalos v. Macatangay, supra.).

Liability of the wife based oncrime, not chargeable against the

conjugal partnership.

As a rule, if there are obligations contracted by the spouses redounding to the benefit of thefamily, the same are chargeable against the properties comprising the conjugal partnership or theabsolute community of properties. But if one of the spouses committed the crime of slander and heldliable for damages in a damage suit, is it chargeable against the conjugal partnership?

This question arose because after the judgment in an action for damages against the wife,her personal properties were levied upon but since they were not sufficient to answer for the

judgment liability, real properties were levied upon and sold by the sheriff. The husband filed a




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complaint for annulment of the certificate of sale and damages. A motion to dismiss was filedalleging that the court where the case was filed did not have jurisdiction over the subject matter,contending that the same should have been filed before the court that rendered the judgment andwhich issued the writ of execution. The RTC dismissed the complaint for lack of jurisdiction over thecase, but on appeal, it was reversed by the CA. The basic issue devolves on whether the husband ofthe judgment debtor may file an independent action to protect the conjugal property subject of

execution. In short, is the husband considered a stranger?

In Sps. Roberto and Venus Buado v. CA, et al., G.R. No. 145222, April 24, 2009, made adistinction, whether the parties are governed by the conjugal partnership or absolute community ofproperty regime as well as the character of the property.

In determining whether the husband is a stranger to the suit, the character of the propertymust be taken into account. In Mariano v. Court of Appeals, (G.R. No. 51283, June 7, 1989, 174SCRA 59 which was later adopted in Spouses Ching v. Court of Appeals, G.R. No. 124642, February23, 2004, 423 SCRA 365, it was held that the husband of the judgment debtor cannot be deemed a

“stranger” to the case prosecuted and adjudged against his wife for an obligation that has redoundedto the benefit of the conjugal partnership. On the other hand, in Naguit v. Court of Appeals, G.R. No.7675, December 5, 2000, 347 SCRA 60 and Sy v. Discaya, G.R. No. 86301, January 23, 1990, 181

SCRA 378 the Court stated that a spouse is deemed a stranger to the action wherein the writ ofexecution was issued and is therefore justified in bringing an independent action to vindicate herright of ownership over his exclusive or paraphernal property.

Pursuant to Mariano however, it must further be settled whether the obligation of the judgment debtor redounded to the benefit of the conjugal partnership or not.

Petitioners argued that the obligation of the wife arising from her criminal liability ischargeable to the conjugal partnership. The SC said no.

There is no dispute that contested property is conjugal in nature. Article 122 of the FamilyCode explicitly provides that payment of personal debts contracted by the husband or the wifebefore or during the marriage shall not be charged to the conjugal partnership except insofar as theyredounded to the benefit of the family.

Effect if spouses are governed bythe absolute community.

Unlike in the system of absolute community where liabilities incurred by either spouse byreason of a crime or quasi-delict is chargeable to the absolute community of property, in theabsence or insufficiency of the exclusive property of the debtor-spouse, the same advantage is notaccorded in the system of conjugal partnership of gains. The conjugal partnership of gains has noduty to make advance payments for the liability of the debtor-spouse.

Parenthetically, by no stretch of imagination can it be concluded that the civil obligationarising from the crime of slander committed by the wife redounded to the benefit of the conjugalpartnership.

To reiterate, conjugal property cannot be held liable for the personal obligation contracted byone spouse, unless some advantage or benefit is shown to have accrued to the conjugal partnership.(Go v. Yamane, G.R. No. 160762, May 3, 2006, 489 SCRA 107.

In Guadalupe v. Tronco, 81 SCRA 605 (1978), it was held that the car which was claimed bythe third party complainant to be conjugal property was being levied upon to enforce "a judgmentfor support" filed by a third person, the third-party claim of the wife is proper since the obligationwhich is personal to the husband is chargeable not on the conjugal property but on his separateproperty.




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FAMILY HOME

To be a family home, the housemust be built on the property of

the spouses, not on the property

of another.

In Simeon Cabang, et al. v. Mr. & Mrs. Guillermo Basay , G.R. No. 180587, March 20, 2009, acontroversy over the possession of a parcel of land started all these controversies. While there was apronouncement that the respondents had a better right of possession and the case was remandedfor the enforcement of the judgment, subject to Article 448, 546, 547, 548, NCC, the issue that itcannot be executed because it was a family home was raised. In fact, the decision decreed that theremand of the records of the case was for the court of origin to determine the rights of thedefendants-appellants under aforesaid articles of the New Civil Code and to render judgment thereonin accordance with the evidence and decision. In the process, the petitioners interposed the issuethat the improvements introduced on the lot which was in their possession by tolerance. In brushingaside the contention that the judgment cannot be executed, the SC even squarely addressing theissue of whether or not the improvements introduced by petitioners on the subject land are family

homes will not extricate them from their predicament.

As defined, “[T]he family home is a sacred symbol of family love and is the repository ofcherished memories that last during one’s lifetime. It is the dwelling house where the husband andwife, or an unmarried head of a family reside, including the land on which it is situated. It isconstituted jointly by the husband and the wife or by an unmarried head of a family.” (Patricio v.Dario III, G.R. No. 170829, November 20, 3006, 507 SCRA 438).

A family home is deemed constituted on a house and a lot from the time it is occupied as afamily residence. There is no need to constitute the same judicially or extra-judicially. (Manacop v.CA, 342 Phil. 735 (1997).

There can be no question that a family home is generally exempt from execution, (Rule 39,Sec. 13(a)) provided it was duly constituted as such. It is likewise a given that the family home

must be constituted on property o w n e d by the persons constituting it. Indeed as pointed out inKelley, Jr. v. Planters Products, Inc ., G.R. No. 172263, July 9, 2008, 557 SCRA 499), “[t]he familyhome must be part of the properties of the absolute community or the conjugal partnership, or ofthe exclusive properties of either spouse with the latter’s consent, or on the property of theunmarried head of the family.” (Art. 156, F.C.) In other words:

T h e f am i l y h om e m u s t b e e st a b l i s h e d o n t h e p r o p e r t i e s o f (a) theabsolute community, or (b) the conjugal partnership, or (c) the exclusive property ofeither spouse with the consent of the other. I t c a n n o t b e e s t a b li sh e d o n p r o p e r t yh e l d i n c o -o w n e r s h ip w i t h t h i r d p e r s o n s . However, it can be established partly oncommunity property, or conjugal property and partly on the exclusive property ofeither spouse with the consent of the latter.

If constituted by an unmarried head of a family, where there is no communal

or conjugal property existing, it can be constituted only on his or her own property.

Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to thecontrary, the stark and immutable fact is that the property on which their alleged family homestands is o w n e d by r e s p o n d e n t s and the question of ownership had been long laid to rest with thefinality of the appellate court’s judgment. Thus, petitioners’ continued stay on the subject land isonly by mere tolerance of respondents.




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All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instantcase where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploymeant to forestall the enforcement of an otherwise final and executory decision. The execution of afinal judgment is a matter of right on the part of the prevailing party whose implementation ismandatory and ministerial on the court or tribunal issuing the judgment.

Duties of the court when there isinvocation of exemption of familyhomes from attachment, etc.

In Albino Josef v. Otelio Santos, G.R. No. 165060, November 27, 2008, after a judgment forcollection of sum of money became final and executory, a motion for execution was filed and a writof execution was issued. The house and lot of the defendant-petitioner was levied upon, hence, hequestioned the levy as void. In fact in his opposition to the motion for execution, he claimed that thehouse where he was residing was a family home but the lower court did not inquire into the natureof the same. In ruling that the order of execution was improper and void, the SC

Held: The above order did not resolve nor take into account petitioner’s allegations in his Opposition,which are material and relevant in the resolution of the motion for issuance of a writ of execution.

This is serious error on the part of the trial court. It should have made an earnest determination ofthe truth to petitioner’s claim that the house and lot in which he and his children resided was theirduly constituted family home. Since it did not, order is thus null and void, where a judgment or

judicial order is void it may be said to be a lawless thing, which can be treated as an outlaw andslain at sight, or ignored wherever and whenever it exhibits its head.

The family home is a real right which is gratuitous, inalienable and free from attachment,constituted over the dwelling place and the land on which it is situated, which confers upon aparticular family the right to enjoy such properties, which must remain with the person constitutingit and his heirs. It cannot be seized by creditors except in certain special cases (Taneo, Jr. v. CA,G.R. No. 108532, March 9, 1999, 304 SCRA 308).

Upon being apprised that the property subject of execution allegedly constitutes petitioner’sfamily home, the trial court should have observed the following procedure:

(1) Determine if petitioner’s obligation to respondent falls under either of the exceptions underArticle 155 of the Family Code.

(2) Make an inquiry into the veracity of petitioner’s claim that the property was his family home;conduct an ocular inspection of the premises; an examination of the title; an interview ofmembers of the community where the alleged family home is located, in order to determineif petitioner actually resided within the premises of the claimed family home; order asubmission of photographs of the premises, depositions, and/or affidavits of properindividuals/parties; or a solemn examination of the petition, his children and other witnesses.At the same time, the respondent is given the opportunity to cross-examine and presentevidence to the contrary.

(3) If the property is accordingly found to constitute petitioner’s family home, the court shoulddetermine:

(a) if the obligation sued upon was contracted or incurred prior to, or after, the effectivityof the Family Code;

(b) if petitioner’s spouse is still alive, as well as if there are other beneficiaries of thefamily home;

(c) if the petitioner has more than one residence for the purpose of determining which ofthem, if any, is his family home; and




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(d) its actual location and value, for the purpose of applying the provisions of Article 157and 160 of the Family Code.

The family home is the dwelling place of a person and his family, a sacred symbol of familylove and repository of cherished memories that last during one’s lifetime. It is the sanctuary of that

union which the law declares and protects as a sacred institution; and likewise a shelter for the fruitsof that union. It is where both can seek refuge and strengthen the tie that binds them together andwhich ultimately forms the moral fabric of our nation. The protection of the family home is just asnecessary in preservation of the family as a basic social institution, and since no custom, practice oragreement destructive of the family shall be recognized or given effect, the trial court’s failure toobserve the proper procedures to determine the veracity of petitioner’s allegations, is unjustified.

The same is true with respect to personal properties levied upon and sold at auction. Despitepetitioner’s allegations in his Opposition, the trial court did not make an effort to determine thenature of the same, whether the items were exempt from execution or not, or whether theybelonged to petitioner or to someone else.

Exemption must be claimed,

otherwise party may be estopped.

A claim for exemption from execution of the family home should be set up and proved beforethe sale of the property at public auction, and failure to do so would estop the party from laterclaiming the exemption since the right of exemption is a personal privilege granted to the judgmentdebtor which must be claimed by the judgment debtor himself at the time of levy or within areasonable period thereafter, the circumstances of the instant case are different. Petitioner claimedexemption from execution of his family home soon after respondent filed the motion for issuance ofwrit of execution, thus giving notice to the trial court and respondent that a property exempt fromexecution may be in danger of being subject to levy and sale. Thereupon, the trial court is called toobserve the procedure as herein laid out; on the other hand, the respondent should observe theprocedure prescribed in Article 160 of the Family Code, that is, to obtain an order for the sale onexecution of the petitioner’s family home, if so, and apply the proceeds –less the maximum amountallowed by law under Article 157 of the Code which should remain with the petitioner for the

rebuilding of his family home – to his judgment credit. Instead, both the trial court and respondentcompletely ignored petitioner’s argument that the properties subject of the writ are exempt fromexecution.

Family home, when it cannot be partitioned.

In Arriola v. Arriola, G.R. No. 177703, January 28, 2008, the basic question is whether thefamily home may be the subject of partition after the death of the father where heirs became co-owners. Answering the question in the negative, the SC

Held: The family home is shielded from immediate partition under Article 159 of the Family codewhich provides:

“Article 159. The family home shall continue despite the death of

one or both spouses or of the unmarried head of the family for a periodof ten years or for as long as there is a minor beneficiary, and the heirscannot partition the same unless the court finds compelling reasonsthereof. This rule shall apply, regardless of whoever owns the propertyor constituted the family home.”

The purpose of Article 159 is to avert the disintegration of the family unit following the deathof its head. To this end, it preserves the family home as the physical symbol of family love, securityand unity by imposing the following restrictions on its partition; first, that the heirs cannot extra-




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judicially partition it for a period of 10 years from the death of one or both spouses or of theunmarried head of the family, or for a longer period, if there is still a minor beneficiary residingtherein; and second, that the heirs cannot judicially partition it during the aforesaid periods unlessthe court finds compelling reasons therefore.

More importantly, Article 159 imposes the proscription against the immediate partition of the

family home regardless of its ownership. This signifies that even if the family home has passed bysuccession to the co-ownership of the heirs, or has been willed to any one of them, this fact alonedispel the protection cast upon it by the law. The rights of the individual co-owner of the familyhome cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home.

When family home constituted.

Article 152. The family home, constituted jointly by the husband and the wife or by anunmarried head of a family, is the dwelling house where they and their family reside, and the landon which it is situated.

Article 153. The family home is deemed constituted on a house and lot from the time it isoccupied 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 fromexecution, forced sale or attachment except as hereinafter provided and to the extent of the valueallowed by the law.

One significant innovation introduced by the Family Code is the automatic constitution of thefamily home from the time of its occupation as a family residence, without need anymore for the

judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil Codeand Rule 106 of the Rules of Court. Furthermore, Article 152 and 153 specifically extend the scope ofthe family home not just to the dwelling structure in which the family resides but also to the lot onwhich it stands. Thus, applying these concepts, the subject house as well as the specific portion ofthe subject land on which it stands are deemed constituted as a family home by the spouses fromthe moment they began occupying the same as a family residence 20 years back. (Sps. Versola v.CA, G.R. No. 164740, July 31, 2006, 497 SCRA 385).

ARTICLE 172

Unsigned autobiography of thefather is sufficient evidence of

filiation.

In Jenie San Juan dela Cruz and Christian Dela Cruz “Aquino”, etc. v. Garcia, G.R. No.177728, July 31, 2009, (Carpio-Morales, J), Jenie and Christian Dominique lived together ashusband and wife without the benefit of marriage. When Jenie was pregnant, Dominique wrote hisautobiography and stated therein the following statements: “Jenie dela Cruz is my wife as we fell inlove with each other and now she is pregnant and for that we lived together.” Before the child wasborn, Dominique died. Jenie sought to register the child’s birth with Dominique as the father, but thelocal civil registrar denied the same stating that the child cannot use the surname of his fatherbecause he was born out of wedlock and the father unfortunately died prior to his birth and has no

more capacity to acknowledge his paternity to the child (either through the back of Municipal FormNo. 102 – Affidavit of Acknowledgment/Admission of Paternity – or the Authority to Use theSurname of the Father).

Jenie and the child promptly filed a complaint for injunction/registration of name againstrespondent before the Regional Trial Court of Antipolo City, alleging that the denial of registration ofthe child’s name is a violation of his right to use the surname of his deceased father under Article176 of the Family Code, as amended by Republic Act (R.A.) No. 9255, the law that allows theillegitimate child to use the surname of the father, amending Article 176 of the Family Code.




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They maintained that the Autobiography executed by Dominique constituted an admission ofpaternity in a “private handwritten instrument” within the contemplation of the law.

For failure to file a responsive pleading or answer despite service of summons, respondentwas declared in default.

Jenie thereupon presented evidence ex-parte. She testified on the circumstances of hercommon-law relationship with Dominique and affirmed her declarations in her AUSF that during hislifetime, he had acknowledged his yet unborn child. She offered Dominique’s handwrittenAutobiography (Exhibit “A”) as her documentary evidence-in-chief. Dominique’s lone brother, JosephButch S.T. Aquino, also testified, corroborating Jenie’s declarations.

The trial court dismissed the complaint “for lack of cause of action” as the Autobiography wasunsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No. 1,Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) whichdefines “private handwritten document” through which a father may acknowledge an illegitimatechild.

The trial court held that even if Dominique was the author of the handwritten Autobiography,the same does not contain any express recognition of paternity.

Direct resort to the Supreme Court via Petition for Review on Certiorari raising purely legalissue contending that Article 176 of the Family Code, as amended, does not expressly require thatthe private handwritten instrument containing the putative father’s admission of paternity must besigned by him. They added that the deceased’s handwritten Autobiography, though unsigned byhim, is sufficient, for the requirement in the above-quoted paragraph 2.2 of the Administrative Orderthat the admission/recognition must be “duly signed” by the father is void as it “unduly expanded”the earlier-quoted provision of Article 176 of the Family Code.

They further contended that Dominique’s handwritten Autobiography contained a “clear andunmistakable” recognition of the child’s paternity.

The Office of the Solicitor General (OSG) contended that Dominique’s Autobiography “merelyacknowledged Jenie’s pregnancy but not his paternity of the child she was carrying in her womb.” Isthe contention of Jenie correct? Why?

Held: Yes. Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child touse the surname of his/her father if the latter had expressly recognized him/her as his offspringthrough the record of birth appearing in the civil register, or through an admission made in a publicor private handwritten instrument. The recognition made in any of these documents is, in itself, aconsummated act of acknowledgment of the child’s paternity; hence, no separate action for judicialapproval is necessary. (De Jesus v. Estate of Juan Dizon, G.R. No. 142877, October 2, 2001, 366SCRA 499).

Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the privatehandwritten instrument acknowledging the child’s paternity must be signed by the putative father.

This provision must, however, be read in conjunction with related provisions of the Family Codewhich require that recognition by the father must bear his signature, thus:

Art. 175. Illegitimate children may establish their illegitimate filiation in thesame way and on the same evidence as legitimate children.

x x x x




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Art. 172. The filiation of legitimate children is established by any of thefollowing:

(1) The record of birth appearing in the civil register or a final judgment; or

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

That a father who acknowledges paternity of a child through a written instrument must affixhis signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 ofA.O. No. 1, Series of 2004, merely articulated such requirement; it did not “unduly expand” theimport of Article 176 as claimed by petitioners.

In this case, however, special circumstances exist to hold that Dominique’s Autobiography,though unsigned by him, substantially satisfies the requirement of the law.

First , Dominique died about two months prior to the child’s birth. Second, the relevantmatters in the Autobiography, unquestionably handwritten by Dominique, correspond to the facts

culled from the testimonial evidence Jenie proffered. (Reyes v. CA, 135 SCRA 439 (1985); Varla v.Villanueva, 95 Phil. 248 (1954). Third , Jenie’s testimony is corroborated by the Affidavit of Acknowledgment of Dominique’s father Domingo Aquino and testimony of his brother Joseph ButchAquino whose hereditary rights could be affected by the registration of the questioned recognition ofthe child. These circumstances indicating Dominique’s paternity of the child give life to hisstatements in his Autobiography.

In Herrera v. Alba, G.R. No. 148220, June 15, 2005, 460 SCRA 197, the Court summarizedthe laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part:

Laws, Rules, and JurisprudenceEstablishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation inthe same way and on the same evidence as legitimate children.

x x x x

ART. 172. The filiation of legitimate children is established by any of thefollowing:

(1) The record of birth appearing in the civil register or a final judgment; or

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

In the absence of the foregoing evidence, the legitimate filiation shall beproved by:

(1) The open and continuous possession of the status of a legitimate child;or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of




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Rule 130 provide:

SEC. 39. Act or declaration about pedigree. — The act or declaration of aperson deceased, or unable to testify, in respect to the pedigree of another personrelated to him by birth or marriage, may be received in evidence where it occurredbefore the controversy, and the relationship between the two persons is shown by

evidence other than such act or declaration. The word "pedigree" includes relationship,family genealogy, birth, marriage, death, the dates when and the places where thesefacts occurred, and the names of the relatives. It embraces also facts of family historyintimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. — Thereputation or tradition existing in a family previous to the controversy, in respect tothe pedigree of any one of its members, may be received in evidence if the witnesstestifying thereon be also a member of the family, either by consanguinity or affinity.Entries in family bibles or other family books or charts, engraving on rings, familyportraits and the like, may be received as evidence of pedigree.

The Court's rulings further specify what incriminating acts are acceptable as

evidence to establish filiation. In Pe Lim v. CA, it was said that the issue of paternitystill has to be resolved by such conventional evidence as the relevantincriminating verbal and written acts by the putative father. Under Article 278of the New Civil Code, voluntary recognition by a parent shall be made in the record ofbirth, a will, a statement before a court of record, or in any authentic writing. Tobe effective, the claim of filiation must be made by the putative father

himself and the writing must be the writing of the putative father . A notarialagreement to support a child whose filiation is admitted by the putative father wasconsidered acceptable evidence. Letters to the mother vowing to be a good father tothe child and pictures of the putative father cuddling the child on various occasions,together with the certificate of live birth, proved filiation. However, a studentpermanent record, a written consent to a father's operation, or a marriage contractwhere the putative father gave consent, cannot be taken as authentic writing.Standing alone, neither a certificate of baptism nor family pictures are sufficient to

establish filiation.

There is no dispute that the statements in Dominique’s Autobiography have been made andwritten by him. Taken together with the other relevant facts extant herein – that Dominique, duringhis lifetime, and Jenie were living together as common-law spouses for several months in 2005 athis parents’ house in Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominiquedied on September 4, 2005; and about two months after his death, Jenie gave birth to the child –they sufficiently establish that the child of Jenie is Dominique’s.

Along the same vein, the Court adopted rules respecting the requirement of affixing thesignature of the acknowledging parent in any private handwritten instrument wherein an admissionof filiation of a legitimate or illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to

prove filiation, there should be strict compliance with the requirement that the samemust be signed by the acknowledging parent; and

2) Where the private handwritten instrument is accompanied by other relevant andcompetent evidence, it suffices that the claim of filiation therein be shown to havebeen made and handwritten by the acknowledging parent as it is merely corroborativeof such other evidence.




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Our laws instruct that the welfare of the child shall be the “paramount consideration” inresolving questions affecting him. Article 3(1) of the United Nations Convention on the Rights of aChild of which the Philippines is a signatory is similarly emphatic:

1. In all actions concerning children, whether undertaken by public or privatesocial welfare institutions, courts of law, administrative authorities or legislative

bodies, the best interests of the child shall be a primary consideration. (Underscoringsupplied)

It is thus “(t)he policy of the Family Code to liberalize the rule on the investigation of thepaternity and filiation of children, especially of illegitimate children x x x.” (Herrera v. Alba, supra.).Too, “(t)he State as parens patriae affords special protection to children from abuse, exploitationand other conditions prejudicial to their development.”

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is topetitioner minor child’s best interests to allow him to bear the surname of the now deceasedDominique and enter it in his birth certificate.

CHANGE OF NAME

Gender classification of a person with intersex

when he/she reaches age of majority depends uponwhat he thinks of his or her sex.

The case of Republic v. Jennifer B. Cagandahan, G.R. No. 166676, September 12, 2008(Quisumbing, J) is one of first impression. In this case, the SC had the occasion to say that wherethe person is biologically or naturally intersex the determining factor in his gender classificationwould be what the individual, having reached the age of majority with good reason thinks of his/hersex.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction ofEntries in her Birth Certificate before the RTC of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as afemale in the Certificate of Live Birth but while growing up, she developed secondary malecharacteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a conditionwhere persons thus afflicted possess both male and female characteristics. She further alleged thatshe was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent anultrasound where it was discovered that she had small ovaries. At age thirteen, tests revealed thather ovarian structure had minimized, she has stopped growing and has no breast or menstrualdevelopment. She then alleged for all intents and appearances as well as in mind and emotion, shehad become a male person. Thus, she prayed that her birth certificate be corrected such that hergender be changed from female to male and her first name be changed from Jennifer to Jeff.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzonof the Department of Psychiatry, University of the Philippines – Philippine General Hospital. Dr.Siozon issued a medical certificate stating that the respondent’s condition was known as CAH. He

explained that genetically respondent was female but because her body secreted male hormones,her female organs did not develop normally and she has two sex organs – female and male. Hetestified that this condition is very rare, that respondent’s uterus was not fully developed because oflack of female hormones and that she had no monthly period. He further testified that respondent’scondition was permanent and recommended the change of gender because respondent has made upher mind, adjusted to her chosen role as male, and the gender change would be advantageous toher.




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The RTC granted the petition as it presented clear and convincing evidence that her bodyproduced male hormones and that her feeling and actions are that of a male. He has chosen to bemale and wanted to be known and acknowledged as such. The OSG appealed, and argued that Rule108 does not allow change of sex or gender in the birth certificate and respondent’s claimed medicalcondition known as CAH does not make her a male.

On the other hand, respondent countered that he is actually a male person and hence hisbirth certificate has to be corrected to reflect his true sex/gender, change of sex or gender is allowedunder Rule 108, and respondent substantially complied with the requirement of Rules 103 and 108of the Rules of Court.

In upholding the respondent’s contention as correct, the Supreme Court

Held: Respondent undisputedly has CAH. This condition causes the early or “inappropriate”appearance of male characteristics.

Where the person is biologically or naturally intersex the determining factor in his genderclassification would be what the individual, like respondent, having reached the age of majority, withgood reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that

his body produces high levels of male hormones (androgen) there is preponderant biological supportfor considering him as being male. Sexual development in cases of intersex person makes thegender classification at birth inconclusive. It is at maturity that the gender of such person, likerespondent, is fixed.

In the absence of a law on the matter, the court will not dictate on respondent concerning amatter so innately private as one’s sexuality and lifestyle preference, much less on whether or not toundergo medical treatment to reverse the male tendency due to CAH. The Court will not considerrespondent as having erred in not choosing to undergo treatment in order to become or remain as afemale. Neither will the court force respondent to undergo treatment and to take medication in orderto fit the mold of a female, as society commonly currently knows this gender the human species.Respondent is the one who has to live with intersex anatomy. To him belongs the human right to thepursuit of happiness and of health. Thus, to him should belong the primordial choice of what coursesof action to take along the path of his sexual development and maturation. In the absence of

evidence that respondent is an “incompetent” and in the absence of evidence to show thatclassifying respondent as a male will harm other members of society who are equally entitled toprotection under the law, the court affirm as valid and justified the respondent’s position hispersonal judgment of being a male.

As for his change of name under Rule 103, it has always been held that a change of name isnot a matter of right but of judicial discretion, to be exercised in the light of the reasons added andthe consequences that will follow. (Yu v. Republic, 123 Phil 1106 (1996). The trial court’s grant ofrespondent’s change of name from Jennifer to Jeff implied a change of a feminine name to amasculine name. Considering the consequence that respondent’s change of name merely recognizedhis preferred gender, there is merit in respondent’s change of name. Such a change will conformwith the change of the entry in his birth certificate from female to male.

ADOPTION

Consent of spouse necessary inadoption.

In Re: Petition for Adoption of Michelle P. Lim and Michael Jude P. LimMonina Lim, petitioner, G.R. Nos. 168992-93, May 21, 2009

Facts: Monina and Primo Lim were married. Two children whose parents were unknown and whosewhereabouts were unknown were brought to them. They reared and took care of the two kids. Primo




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died in 1998 but Monina got married to Angel Olario, an American citizen. When the children werebrought to them, they registered them making it appear that they were the natural parents. Moninadecided to adopt the two (2) children by availing of the amnesty under RA 8552 to those individualswho simulated the birth of a child, hence, she filed the petition on April 24, 2002. Michelle was 25years old and already married at the time of the filing of the petition. Michael was 18 years old. Thehusband of Michelle gave his consent to the adoption. The DSWD issued a certification that they

were abandoned children. After trial, the RTC dismissed the petition on the ground that the husbandof Monina did not join her in the petition as required by Section 7(c), Article III, RA 8552 and Article185 of the Family Code. She filed a Motion for reconsideration as she did not fall under any of theexceptions provided for by the law. (Sec. 7(c), Article III, RA 8552). It likewise ruled that thecontention that mere consent of her husband would suffice was untenable because, under the law,there are additional requirements, such as residency and certification of his qualification, which thehusband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merelyfor the joint exercise of parental authority, the trial court ruled that joint adoption is not only for thepurpose of exercising parental authority because an emancipated child acquires certain rights fromhis parents and assumes certain obligations and responsibilities.

Hence, she filed a petition with the Supreme Court raising the sole issue of whether or notpetitioner, who has remarried, can singly adopt.

She contended that the rule on joint adoption must be relaxed because it is the duty of thecourt and the State to protect the paramount interest and welfare of the child to be adopted. Sheargued that the legal maxim “dura lex sed lex ” is not applicable to adoption cases. She argued that

joint parental authority is not necessary in this case since, at the time the petitions were filed,Michelle was 25 years old and already married, while Michael was already 18 years of age. Parentalauthority is not anymore necessary since they have been emancipated having attained the age ofmajority. Is the petition proper? Explain.

Held: No. The husband and wife should have jointly filed the petition for adoption. The principle ofdura lex sed lex is applicable as the law is explicit that the husband and wife shall jointly adopt.

The use of the word “shall” means that joint adoption by the husband and the wife ismandatory. This is in consonance with the concept of joint parental authority over the child which isthe ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is butnatural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.(Rep. v. Toledano, G.R. No. 94147, June 8, 1994, 233 SCRA 9).

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time thepetitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed onlyby petitioner herself, without joining her husband, the trial court was correct in denying the petitionsfor adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First,the children to be adopted are not the legitimate children of petitioner or of her husband. Second,the children are not the illegitimate children of petitioner. And third, petitioner and her husband are

not legally separated from each other.

The fact that her husband gave his consent to the adoption as shown in his Affidavit ofConsent does not suffice. There are certain requirements that her husband must comply being anAmerican citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) hemust prove that his country has diplomatic relations with the Republic of the Philippines; (2) he musthave been living in the Philippines for at least three continuous years prior to the filing of theapplication for adoption; (3) he must maintain such residency until the adoption decree is entered;(4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the




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adopter’s country as the latter’s adopted child. None of these qualifications were shown and provedduring the trial.

These requirements on residency and certification of the alien’s qualification to adopt cannotlikewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourthdegree of consanguinity or affinity of petitioner or of her husband. Neither are the adoptees the

legitimate children of petitioner.

Effects of adoption and parental authority.

Petitioner contended that joint parental authority is not anymore necessary since the childrenhave been emancipated having reached the age of majority. The Supreme Court ruled that thecontention is untenable.

Parental authority includes caring for and rearing the children for civic consciousness andefficiency and the development of their moral, mental and physical character and well-being. Thefather and the mother shall jointly exercise parental authority over the persons of their commonchildren. (Art. 210, Family Code). Even the remarriage of the surviving parent shall not affect theparental authority over the children, unless the court appoints another person to be the guardian of

the person or property of the children. (Art. 212, Family Code).

It is true that when the child reaches the age of emancipation — that is, when he attains theage of majority or 18 years of age — emancipation terminates parental authority over the personand property of the child, who shall then be qualified and responsible for all acts of civil life.However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552enumerates the effects of adoption, thus:

PROPERTY

Builder in good faith.

In Arogante v. Sps. Maglunob, et al., G.R. No. 178906, February 18, 2009, the SC had theoccasion to rule on the rights of a builder in good faith and that of the owner of the land.

In the context that such term is used in particular reference to Article 448 of the Civil Code, abuilder in good faith is one who, not being the owner of the land, builds on that land, believinghimself to be its owner and unaware of any defect in his title or mode of acquisition. (PNB v. DeJesus, 454 SCRA 459 (2003).

Under the law, the builder in good faith can compel the landowner to make a choice betweenappropriating the building by paying the proper indemnity or obliging the builder to pay the price ofthe land. The choice belongs to the owner of the land, a rule that accords with the principle ofaccession, i.e., that the accessory follows the principal and not the other way around. Even as theoption lies with the landowner, the grant to him, nevertheless, is preclusive. He must choose one.He cannot, for instance, compel the owner of the building to instead remove it from the land. Inorder, however, that the builder can invoke that accruing benefit and enjoy his corresponding rightto demand that a choice be made by the landowner, he should be able to prove good faith on his

part.

Good faith, here understood, is an intangible and abstract quality with no technical meaningor statutory definition, and it encompasses, among other things, an honest belief, the absence ofmalice and the absence of design to defraud or to seek an unconscionable advantage. Anindividual’s personal good faith is a concept of his own mind and, therefore, may not conclusively bedetermined by his protestations alone. It implies honesty of intention, and freedom from knowledgeof circumstances which ought to put the holder upon inquiry. The essence of good faith lies in anhonest belief in the validity of one’s right, ignorance of a superior claim, and absence of intention to




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overreach another. Applied to possession, one is considered in good faith if he is not aware thatthere exists in his title or mode of acquisition any flaw which invalidates it.

EASEMENT

Q – When is there impairment of the easement by the dominant estate?

Answer: There is impairment of the easement if the owner of the dominant estate violates thefollowing restrictions on its rights over the servient estate:

(1) it can only exercise rights necessary for the use of the easement;(2) it cannot use the easement except for the benefit of the immovable property originally

contemplated;(3) it cannot exercise the easement in any other manner than that previously established;(4) it cannot construct anything which is not necessary for the use and preservation of the

easement;(5) it cannot alter or make the easement more burdensome;(6) it must notify the servient estate owner of its intention to make the necessary works thereon;(7) it should choose the most convenient time and manner to build said works so as to cause

least inconvenience to the owner of servient estate.

By erecting an office structure on the limited common area of a condominium despite itsexclusive right to use the same, it impaired the easement and illegally altered the condominiumplan. It likewise breached the right when it leased the structure as the lease and the structure arenot necessary for the use and preservation of the easement. (Golden Realty Corp. v. CypressGardens Condominium, Corp., G.R. No. 171072, April 17, 2009).

DONATION

Requisites of donation of real property.

Q – Esperanza executed an Affidavit where she renounced, relinquished, waived and quitclaimed allher rights, shares, interest and participation over a parcel of land unto Spouses Ray and Elvira

Arogante, their heirs, successors, and assigns. What is the nature of such affidavit and is it valid?Explain.

Answer: The affidavit is in the nature of a donation, a simple/pure donation covered by Article 749,NCC which provides:

Art. 749. In order that the donation of an immovable may be valid, it must bemade in a public document, specifying therein the property donated and the value ofthe charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separatepublic document, but it shall not take effect unless it is done during the lifetime of thedonor.

If the acceptance is made in a separate instrument, the donor shall be

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