TITLE VTHE FAMILY

Chapter 1. The Family as an Institution

Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. (216a, 218a)

The family is the natural and social institution, founded on the conjugal union, which binds together the individuals composing it, for the common accomplishment of the material and spiritual ends of life, under the authority of the original ascendant who heads it. The family is an essential factor in general, social and even political life. Constant living together of the husband and wife, and of parents and children, contributes to the development of a strong sense of duty, of an aptitude for heroic sacrifices, and of the love by future generations of the traditions and moral conquest of those who preceded them. The family is thus an indispensable element of social cohesion and equilibrium. The vitality and strength of the State depends upon the solidarity of the nucleus, the family. This explains the interest of the state in the family. Family rights are governed by law. They are acquired, exercised, and extinguished in accordance with the provisions of the law. There are two aspects in family relations, one internal and another external. The law governs only the external relations between spouses, and between parents and their children. It is only in the external aspect that the law fixes rules regulating family relations because it is only here that third persons and the public interest are concerned. The internal aspect of family relations is essentially natural and moral; it is commonly known to be sacred to the family and inaccessible to the law. The spiritual relations, and all those affecting the moral life of the family, are within the realm of conscience and not embraced by the law.

The law governing the family has two essential characteristics:1) The increasing invention of the State in the consideration and solution of the problems affecting the family. This intervention is justified by the influence which has the family has on the social organization.2) The obligatory character of laws relating to the family, because they affect public order or public policy. They cannot be set aside or modified by agreement of the parties, except in very exceptional cases. The rights and duties arising therefrom are, therefore, generally inalienable, intransferable, imprescriptible, and not subject to waiver or renunciation. They cannot be performed through agents or representatives.

Art. 150. Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among other ascendants and descendants; and(4) Among brothers and sisters, whether of the full or half-blood. (217a) Family relations are exclusive among the relatives aforementioned even if they are not living together. The enumeration among brothers and sisters as members of the family does not comprehend sisters-in-law and brothers-in-law. (Gayon vs. Gayon). Other relatives like cousins, nephews and nieces, and domestic helpers, who grew up or are living with the family, are members of the household but not of the family. The relationship between the husband and the wife must be a legitimate one. Art. 150 (2) does not distinguish between legitimate and illegitimate children.Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. This rules shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a)Reason for the article: This rule has been laid down because it is difficult to imagine a sadder and more tragic spectacle than a litigation between the members of the same family. It is necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion in the family. It is known that a lawsuit between close relatives generates deeper bitterness than between strangers. The impediment arising from this provision is limited to suits between members of the family as enumerated in Article 150 of this Family Code. For the impediment to arise, however, the suit must be for a ground which can be the subject of a valid compromise. The following matters may not be the subject of compromise under the CC:a. Civil status of persons;b. Validity of a marriage or a legal separation;c. Any ground for legal separation;d. Future support;e. The jurisdiction of courts; or,f. Future legitime. Provision that a suit between members of the same family may be dismissed when no earnest efforts under the Civil Code toward a compromise have been made, does not apply where defendants are strangers to the principal parties in the case. It must appear from the verified complaint or petition that earnest efforts toward a compromise have been made but that the same have failed. The above allegation is jurisdictional, and if there is no such allegation in the verified complaint or petition, the court can dismiss the case outright for lack of jurisdiction over the same.OLACO VS. CO CHO CHIT AND COURT OF APPEALS220 SCRA 656FACTS:Spouses Valentin Co Cho Chit and O Lay Kia bought a parcel of land in Oroquieta St., Sta. Cruz, Manila. Legal title was placed in the name of Emilia OLaco, O Lay Kias half-sister, because the spouses, being Chinese nationals did not want to execute the required affidavit to the effect that they were allies of the Japanese. Subsequently, they learned through a newspaper that OLaco sold the property to the Roman Catholic Archbishop of Manila.

They sued OLaco to recover the purchase price of the land asserting that OLaco knew they were the real vendees of the land and that title was only placed in her name. They contend that OLaco breached the trust when she sold the land.

OLaco contended that she bought the property with her own money; that she merely left the TCT with O Lay Kia for safekeeping. When she asked for the document, she was told it was lost or misplaced. So, she filed a petition for the issuance of new title, which was granted.

The trial court dismissed complaint. On appeal, the CA set aside decision of trial court. In this appeal to the SC, OLaco argued that the complaint failed to allege that earnest efforts toward a compromise were exerted considering that the suit is between family members.

ISSUE:Whether or not there is a trust relation between the parties in contemplation of law

HELD:It is well-settled that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family. Hence, the defect in the complaint is assailable at any stage of the proceedings, even on appeal, for lack of cause of action.

While respondents did not formally amend their complaint, they were nonetheless allowed to introduce evidence purporting to show that earnest efforts toward a compromise had been made, that is, O Lay Kia importuned [pleaded with] OLaco and pressed her for the transfer of the title of Oroquieta property in name of O Lay Kia, just before Emilias marriage. Instead, Emilia sold the property. This testimony was not objected to by OLaco spouses. Hence, the complaint was deemed accordingly amended to conform to the evidence, pursuant to Sec. 5, Rule 10 of the Rules of Court.

Indeed, if the defendant permits evidence to be introduced without objection and which supplies the necessary allegations of a defective complaint, then the evidence is deemed to have the effect of curing the defects of the complaint. The insufficiency of the allegations in the complaint is deemed ipso facto rectified.

GUERRERO VS. RTC BRANCH XVIJanuary 10, 1994FACTS:Gaudencio Guerrero filed a complaint against Pedro Hernando, without alleging in the complaint that earnest efforts toward a compromise was made and that the same failed. They are married to half-sisters hence they are brothers-in-law.

On the basis thereof, the judge gave Guerrero 5 days to file his motion and amend his complaint. Guerrero moved to reconsider claiming that since brothers by affinity are not members of the same family, he was not required to exert efforts towards a compromise.

Judge denied the motion holding that failure to allege that earnest efforts towards a compromise is jurisdictional such that for failure to allege the same, the court would be deprived of its jurisdiction to take cognizance of the case. The 5-day period having expired without Guerrero amending his complaint, Judge dismissed the case.

ISSUE:Whether or not brothers by affinity are considered members of the same family

HELD:Considering that Art. 151 starts with the negative word No, the requirement is mandatory that the complaint or petition, which must be verified, should allege that earnest efforts towards a compromise have been made but that the same failed, so that if it is shown that no such efforts were in fact made, the case must be dismissed.

This rule is introduced because it is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family.

In Gayon vs. Gayon, it was ruled that the enumeration of brothers and sisters as members of the same family does not comprehend sisters-in-law (hence, also brothers-in-law).

HIYAS SAVINGS VS. ACUA500 SCRA 514FACTS: On November 24, 2000, Alberto Moreno, private respondent, filed a complaint against Hiyas Savings and Loan Bank, Inc., his wife Remedios, the spouses Felipe and Maria Owe and the Register of Deeds of Caloocan City for cancellation of mortgage contending that he did not secure any loan from petitioner, nor did he sign or execute any contract of mortgage in its favor; that his wife, acting in conspiracy with Hiyas and the spouses Owe, who were the ones that benefited from the loan, made it appear that he signed the contract of mortgage; that he could not have executed the said contract because he was then working abroad.

On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that private respondent failed to comply with Article 151 of the FC wherein it is provided that no suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. Petitioner contends that since the complaint does not contain any fact or averment that earnest efforts toward a compromise had been made prior to its institution, then the complaint should be dismissed for lack of cause of action.

Private respondent argues that in cases where one of the parties is not a member of the same family as contemplated under Article 150 of the FC, failure to allege in the complaint that earnest efforts toward a compromise had been made by the plaintiff before filing the complaint is not a ground for a motion to dismiss. Alberto asserts that since three of the party-defendants are not members of his family the ground relied upon by Hiyas in its Motion to Dismiss is inapplicable and unavailable. Alberto also prayed that defendants be declared in default for their failure to file their answer on time.

The lower court agrees with private respondent that earnest efforts towards a compromise is not required before the filing of the instant case considering that the above-entitled case involves parties who are strangers to the family.

ISSUE: Whether or not lack of earnest efforts toward a compromise is a ground for a motion to dismiss in suits between husband and wife when other parties who are strangers to the family are involved in the suit

HELD: Article 151 of the FC provides as follows:

No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the CC. Article 222 of the CC from which Article 151 of the FC was taken, essentially contains the same provisions, to wit: No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subject to the limitations in Article 2035.

Public respondent applied the decision in the case of Magbaleta v. Gonong instead of the ruling in the case of De Guzman v. Genato. In Magbaleta, the case involved brothers and a stranger to the family, the alleged owner of the subject property. Once a stranger becomes a party to a suit involving members of the same family, the law no longer makes it a condition precedent that earnest efforts be made towards a compromise before the action can prosper. In the subsequent case of De Guzman, the case involved spouses and the alleged paramour of the wife. The Court ruled that due to the efforts exerted by the husband to confront the wife, there was substantial compliance with the law, thereby implying that even in the presence of a party who is not a family member, the requirements that earnest efforts towards a compromise have been exerted must be complied with, pursuant to Article 222 of the CC, now Article 151 of the FC.

The SC finds no cogent reason why the ruling in Magbaleta as well as in all of the aforementioned cases should not equally apply to suits involving husband and wife. Petitioner makes much of the fact that the present case involves a husband and his wife while Magbaleta is a case between brothers. However, the Court finds no specific, unique, or special circumstance that would make the ruling in Magbaleta inapplicable to suits involving a husband and his wife, as in the present case. In the first place, Article 151 of the FC and Article 222 of the CC are clear that the provisions therein apply to suits involving "members of the same family" as contemplated under Article 150 of the FC.

Petitioner also contends that the trial court committed grave abuse of discretion when it ruled that petitioner, not being a member of the same family as respondent, may not invoke the provisions of Article 151 of the FC. Suffice it to say that since the Court has ruled that the requirement under Article 151 of the FC is applicable only in cases which are exclusively between or among members of the same family, it necessarily follows that the same may be invoked only by a party who is a member of that same family.

Chapter 2The Family Home

Art. 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) This article defines the family home as the dwelling place of a person and his family. It is said, however, that 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 a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs. This view seems to be technically correct because the family home, as an object, may actually exist even if not constituted in the manner provided by the following articles. Its constitution as provided in the Civil Code creates a real right; hence the need for registration. And when it is dissolved, it is not the property itself that is divided; it is the real right that is extinguished.In the creation of family homes, there are certain limitations.1) Each family can have only one family home. After one family home has been constituted, no other family home can be established without first dissolving the existing one.2) The family home can be constituted only on the dwelling place, and therefore in the locality where family has its domicile.3) The value of the family home must not exceed the limit fixed by law. Who may constitute a family home?1. Husband and wife jointly; or,2. An unmarried head of a family (which includes a widow or widower). The family home cannot be constituted on a house constructed on land belonging to another (note the phrase in the codal provision which states, and on the land on which it is situated). No valid family home can be constituted on premises used primarily for business purposes (like a store), although the family resides thereat.

Art. 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) It is the actual occupation of the house as a family residence which creates the family home, without judicial proceedings or public instrument. If a public instrument declaring the house and lot as the family home is recorded in the registry of property, this is to give notice to thirds persons of the constitution of the family home. But the actual occupancy for the family residence is legally sufficient to constitute the family home. And even if there is such recording in the registry of property but there is no actual occupancy of the property as family residence, the family home is not legally constituted. Under this article, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially, as required in the Civil Code. The family home continues so long as the beneficiaries actually reside therein. The death of those who constituted the family home does not necessarily terminate the family home, under Article 159. What is the family home exempt from?1. Execution;2. Forced sale; or,3. Attachment.

Art. 154. The beneficiaries of a family home are:(1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a)

Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a) This article provides the exceptions to the exemption of the family home from execution, forced sale, or attachment.Modequillo vS. Breva185 SCRA 766FACTS:On January 29, 1988, a judgment was rendered by the CA finding defendants-appellees Modequillo and Malubay liable to plaintiffs in CA-G.R. CV No. 09218. Said judgment being final and executory, a writ of execution was issued by the RTC to satisfy the judgment on the goods and chattels of the defendants at Malalag, Davao del Sur. The sheriff levied on a parcel of residential land at Poblacion Malalag, Davao del Sur and an agricultural land at Bulacan, Malalag, Davao del Sur.Modequillo filed a motion to quash and/or to set aside levy of execution alleging that the residential land is where the family home is built in 1969 and as such is exempt from execution, forced sale or attachment under articles 152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof; and that the judgment debt sought to be enforced against the family home of the defendant pertaining to damages arising from a vehicular accident is not one of those enumerated under Article 155 of the Family Code where the family home may be levied upon and sold on execution.

The trial court denied the motion contending that the said house and lot became a family home on August 4, 1988 when the Family Code became effective and that Article 162 of the Family Code does not state that the provisions of Chapter 2, Title V have a retroactive effect.

A motion for reconsideration was likewise denied.

ISSUE:Whether or not a final judgment of the CA in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code

HELD:Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. The exemption with regards to attachment, forced sale and execution as provided in Article 155 is effective from the time of the constitution of the family home a such, and lasts so long as any of its beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extra-judicially under the Civil Code. It became a family home, by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectively of the Family Code on August 3, 1988 not August 4, one year after its publication. It cannot be contended that it became a family home from the time it was occupied by petitioner and his family in 1969.

The statements the provisions of this Chapter shall govern existing family residences insofar as said provisions are applicable under Article 169 does not mean that Article 152 and 153 of the said code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time occupation are exempt from execution from the payment of obligations before the effectivity of the Family Code. Art 162 means that all existing family residences at the time of the effectively of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the family code.The family home of the petitioner is not exempt from execution of the money judgment aforecited since the vehicular accident happened on March 16, 1976 and the judgment was rendered on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the exemption from execution under the Family Code. Petition is dismissed.

Manacop vS. COURT OF APPEALS215 SCRA 773FACTS: Owing to pay the sub-contract cost pursuant to a deed of assignment signed between petitioners corporation and private respondent, the latter filed on July 3, 1989, a complaint for sum of money, with prayer of preliminary attachment, against the former. As a consequence of the order on July 28, 2989, the corresponding writ for the provisional remedy was issued on August 11, 1989 which triggered the attachment of a parcel of land in QC owned by Manacop Construction President Florante Manacop, herein petitioner. Petitioner insists that the attached property is a family home, having been occupied by him and his family since 1972, and is therefore exempt from attachment.

ISSUE: Whether or not Manacops family home is exempt from attachmentHELD: While Article 153, FC, provides that the family home is deemed constituted as a house and lot from the time it is occupied as a family residence, it does not mean that said article has a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the FC and henceforth, are exempt from execution for the payment of obligations incurred before the effectivity of FC on August 3, 1988. Article 162 does not state that provisions of Chapter 2, Title V thereof have retroactive effect. It simply means that all existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefit accorded to a family home under the Family Code. Since petitioners debt was incurred as early as November 25, 1987, it preceded the effectivity of the Family Code. His property is therefore not exempt from attachment.

TANEO, Jr. VS. COURT OF APPEALS304 SCRA 308FACTS: As a matter of a judgment in a civil case in favor of private respondent, two of petitioners properties were levied to satisfy the judgment amount of about P50,000, one of it was their family home. The subject properties were sold in a public auction on February 12, 1966 to the private respondent as the highest bidder. Consequently, after petitioners failure to redeem the same, a final deed of conveyance was executed on February 9, 1968.

ISSUE:Whether or not the house constituted as a family home is exempt from execution

HELD:A family home is the dwelling place of a person and his family. It is said, however, that 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 a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain special cases.

Under the CC (Art 224-251), family home may be constituted judicially or extrajudicially. The operative act which treated the family home extrajudicially was the registration in the Registry of Property of the declaration prescribed by Art 240 and 241 of the CC. Under the FC, however, registration was no longer necessary. Art 153 of the FC provides that the family home is deemed constituted on a house and lot from the time it is occupied in the family residence. However, the retroactive effect of the FC, particularly on the provision on the family home had been laid down by the court in the case of Manacop vs. CA (215 SCRA 773).

The applicable law in the instant case is still the CC where registration of the declaration of a family home is a prerequisite. Nonetheless, Art 243 thereof provides certain instances where the family home is not exempted from execution, forced sale r attachment.

In the case, it was found that the house in question was constituted as a family home on March 7, 1964. The instrument constituting the family home was registered only on January 24, 1966. Thus, at the time when the debt was incurred, the family home was not yet constituted or even registered. Petitioners alleged family home is not exempt as it falls under the exception of Art 243(2).

Moreover, the house was erected not on the land which the Taneos owned but on the land of one Plutarco Vacalares. By the very definition of the law that the family home is the dwelling house where a person and his family resides and the land on which it is situated, it is understood that the house should be constructed on a land not belonging to another.

KELLY, JR. VS. PLANTERS PRODUCTS557 SCRA 499FACTS:Petitioner Auther G. Kelley, Jr. (Auther) acquired agricultural chemical products on consignment from respondent Planters Products, Inc. (PPI) in 1989. Due to Authers failure to pay despite demand, PPI filed an action for sum of money against him in the RTC of Makati City.

After trial on the merits, the RTC Makati City decided in favor of PPI and issued a writ of execution. Pursuant thereto, respondent sheriff Jorge A. Ragutana sold on execution real property covered by TCT No. 15079 located in Naga City. A certificate of sale was issued in favor of PPI as the highest bidder.

After being belatedly informed of the said sale, petitioners Auther and his wife Doris A. Kelley (Doris) filed a motion to dissolve or set aside the notice of levy in the RTC Makati City on the ground that the subject property was their family home which was exempt from execution. Petitioners motion was denied for failure to comply with the three-day notice requirement.

Subsequently, petitioners filed a complaint for declaration of nullity of levy and sale of the alleged family home with damages against Ragutana and PPI in the RTC of Naga City.

ISSUE:Whether or not the petitioners contention that the subject real property is exempt from execution

HELD:No doubt, a family home is generally exempt from execution provided it was duly constituted as such. There must be proof that the alleged family home was constituted jointly by the husband and wife or by an unmarried head of a family. It must be the house where they and their family actually reside and the lot on which it is situated. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent, or on the property of the unmarried head of the family. The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000 in urban areas and P200,000 in rural areas.

Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code.

The rule, however, is not absolute. The Family Code, in fact, expressly provides exceptions enumerated in Articles 155 and 160 of the Family Code.

We grant the petition only to the extent of allowing petitioners to adduce evidence in the trial court that TCT No. 15079 is in fact their family home as constituted in accordance with the requirements of law. The case is REINSTATED and this case is hereby REMANDED to the Regional Trial Court of Naga City, Branch 19 for determination whether or not the property covered by TCT No. 15079 is a duly constituted family home and therefore exempt from execution.

JOSEF VS. SANTOS572 SCRA 57FACTS:Petitioner Albino Josef was the defendant in Civil Case, which is a case for collection of sum of money filed by herein respondent Otelio Santos, who claimed that petitioner failed to pay the shoe materials which he bought on credit from respondent on various dates in 1994.

After trial, the RTC of Makati City, Branch 272, found petitioner liable to respondent in the amount of P404,836.50 with interest at 12% per annum reckoned from January 9, 1995 until full payment. Upon appeal, the CA affirmed the decision of the Makati RTC in toto. A writ of execution was issued. Certain personal properties subject of the writ of execution were auctioned off. Thereafter, a real property located at Marikina City was sold by way of public auction to fully satisfy the judgment credit. Respondent emerged as the winning bidder.

Petitioner filed an original petition for certiorari with the Court of Appeals, questioning the sheriffs levy and sale of the abovementioned personal and real properties. Petitioner claimed that the personal properties did not belong to him but to his children; and that the real property was his family home thus exempt from execution.

ISSUE:Whether or not the levy and sale of the personal belongings of the petitionters children as well as the attachment and sale on public auction of his family home to satisfy the judgment award in favor of respondent is legal

HELD:The petition is meritorious. The Order of the trial court did not resolve nor take into account petitioners 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 of the truth to petitioners claim that the house and lot in which he and his children resided was their duly constituted family home. Since it did not, its July 16, 2003 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 and slain 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 a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain special cases.

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

The trial court had enough time to conduct the crucial inquiry that would have spared petitioner the trouble of having to seek relief all the way to this Court. Indeed, the trial courts inaction on petitioners plea resulted in serious injustice to the latter, not to mention that its failure to conduct an inquiry based on the latters claim bordered on gross ignorance of the law.

CABANG VS. BASAY582 SCRA 172FACTS:Deceased Felix Odong was the registered owner of a Lot No. 7777 located in Molave, Zamboanga del Sur. Felix Odong and his heirs never occupied nor took possession of the lot.

On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong for P8,000.00. Consequently, OCT was cancelled and in its stead, TCT was issued on August 6, 1987 in the name of plaintiff-appellants. The latter also did not occupy the said property.

Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse possession of the same parcel of land since 1956 up to the present. They were the awardees in the cadastral proceedings of Lot No. 7778 of the Molave Townsite. During the said cadastral proceedings, defendant-appellees claimed Lot No. 7778 on the belief that the area they were actually occupying was Lot No. 7778. As it turned out, however, when the Municipality of Molave relocated the townsite lots in the area in 1992 as a big portion of Lot No. 7778 was used by the government as a public road and as there were many discrepancies in the areas occupied, it was then discovered that defendant-appellees were actually occupying Lot No. 7777.

On June 23, 1992, plaintiff-appellants filed a Complaint for Recovery of Property against defendant-appellees.

On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution alleging therein that defendant-appellees refused to accept payment of the improvements as determined by the court appointed Commissioner, thus, they should now be ordered to remove said improvements at their expense or if they refused, an Order of Demolition be issued.

Petitioners insist that the property subject of the controversy is a duly constituted family home which is not subject to execution, thus, they argue that the appellate tribunal erred in reversing the judgment of the trial court.

ISSUE:Whether or not the petitioners contention has merit

HELD:The petition lacks merit. It was already of judicial notice that the improvements introduced by petitioners on the litigated property are residential houses not family homes. Belatedly interposing such an extraneous issue at such a late stage of the proceeding is tantamount to interfering with and varying the terms of the final and executory judgment and a violation of respondents right to due process.

The refusal, therefore, of the trial court to enforce the execution on the ground that the improvements introduced on the litigated property are family homes goes beyond the pale of what it had been expressly tasked to do, i.e. its ministerial duty of executing the judgment in accordance with its essential particulars. The foregoing factual, legal and jurisprudential scenario reduces the raising of the issue of whether or not the improvements introduced by petitioners are family homes into a mere afterthought.

There can be no question that a family home is generally exempt from execution, provided it was duly constituted as such. It is likewise a given that the family home must be constituted on property owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters Products, Inc. "[T]he family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent, or on the property of the unmarried head of the family."

The family home must be established on the properties of (a) the absolute community, or (b) the conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other. It cannot be established on property held in co-ownership with third persons. However, it can be established partly on community property or conjugal property and partly on the exclusive property of either spouse with the consent of the latter.

Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary, the stark and immutable fact is that the property on which their alleged family home stands is owned by respondents and the question of ownership had been long laid to rest with the finality of the appellate courts judgment. Thus, petitioners continued stay on the subject land is only by mere tolerance of respondents. The petition is DENIED

PATRICIO VS. DARIO III507 SCRA 438FACTS: On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife, petitioner Perla G. Patricio and their two sons, Marcelino Marc Dario and private respondent Marcelino G. Dario III. Among the properties he left was a parcel of land with a residential house and a pre-school building built thereon. On August 10, 1987, petitioner, Marcelino Marc and private respondent, extrajudicially settled the estate of Marcelino V. Dario. Thereafter, petitioner and Marcelino Marc formally advised private respondent of their intention to partition the subject property and terminate the co-ownership. Private respondent refused to partition the property hence petitioner and Marcelino Marc instituted an action for partition.

On October 3, 2002, the trial court ordered the partition of the subject property. The trial court also ordered the sale of the property by public auction wherein all parties concerned may put up their bids. In case of failure, the subject property should be distributed accordingly in the aforestated manner. The CA dismissed the complaint for partition. It held that the family home should continue despite the death of one or both spouses as long as there is a minor beneficiary thereof. The heirs could not partition the property unless the court found compelling reasons to rule otherwise. The appellate court also held that the minor son of private respondent, who is a grandson of spouses Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of the family home.

ISSUE (1): Whether or not the partition of the family home is proper where one of the co-owners refuse to accede to such partition on the ground that a minor beneficiary still resides in the said home

HELD: Private respondent claims that the subject property which is the family home duly constituted by spouses Marcelino and Perla Dario cannot be partitioned while a minor beneficiary is still living therein namely, his 12-year-old son, who is the grandson of the decedent. He argues that as long as the minor is living in the family home, the same continues as such until the beneficiary becomes of age. Private respondent insists that even after the expiration of ten years from the date of death of Marcelino on July 5, 1987, i.e., even after July 1997, the subject property continues to be considered as the family home considering that his minor son, Marcelino Lorenzo R. Dario IV, who is a beneficiary of the said family home, still resides in the premises.

On the other hand, petitioner alleges that the subject property remained as a family home of the surviving heirs of the late Marcelino V. Dario only up to July 5, 1997, which was the 10th year from the date of death of the decedent. Petitioner argues that the brothers Marcelino Marc and private respondent Marcelino III were already of age at the time of the death of their father, hence there is no more minor beneficiary to speak of.

The law explicitly provides that occupancy of the family home either by the owner thereof or by any of its beneficiaries must be actual. That which is actual is something real, or actually existing, as opposed to something merely possible, or to something which is presumptive or constructive. Actual occupancy, however, need not be by the owner of the house specifically. Rather, the property may be occupied by the beneficiaries enumerated in Article 154 of the FC, which may include the in-laws where the family home is constituted jointly by the husband and wife. But the law definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code.

Article 154 of the FC enumerates who are the beneficiaries of a family home: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. To be a beneficiary of the family home, three requisites must concur: (1) they must be among the relationships enumerated in Art. 154 of the FC; (2) they live in the family home; and (3) they are dependent for legal support upon the head of the family.

Moreover, Article 159 of the FC provides that the family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. Article 159 of the FC applies in situations where death occurs to persons who constituted the family home.

If there are beneficiaries who survive and are living in the family home, it will continue for 10 years, unless at the expiration of 10 years, there is still a minor beneficiary, in which case the family home continues until that beneficiary becomes of age. the family home may be preserved for a minimum of 10 years following the death of the spouses or the unmarried family head who constituted the family home, or of the spouse who consented to the constitution of his or her separate property as family home. After 10 years and a minor beneficiary still lives therein, the family home shall be preserved only until that minor beneficiary reaches the age of majority. The intention of the law is to safeguard and protect the interests of the minor beneficiary until he reaches legal age and would now be capable of supporting himself. However, three requisites must concur before a minor beneficiary is entitled to the benefits of Art. 159: (1) the relationship enumerated in Art. 154 of the FC; (2) they live in the family home, and (3) they are dependent for legal support upon the head of the family.

ISSUE (2): Whether Marcelino Lorenzo R. Dario IV, the minor son of private respondent, can be considered as a beneficiary under Article 154 of the FC

HELD: As to the first requisite, the beneficiaries of the family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate. The term descendants contemplates all descendants of the person or persons who constituted the family home without distinction; hence, it must necessarily include the grandchildren and great grandchildren of the spouses who constitute a family home. Ubi lex non distinguit nec nos distinguire debemos. Where the law does not distinguish, we should not distinguish. Thus, private respondents minor son, who is also the grandchild of deceased Marcelino V. Dario satisfies the first requisite.

As to the second requisite, minor beneficiaries must be actually living in the family home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV, also known as Ino, the son of private respondent and grandson of the decedent Marcelino V. Dario, has been living in the family home since 1994, or within 10 years from the death of the decedent, hence, he satisfies the second requisite.

However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand support from his paternal grandmother if he has parents who are capable of supporting him. The liability for legal support falls primarily on Marcelino Lorenzo R. Dario IVs parents, especially his father, herein private respondent who is the head of his immediate family. The law first imposes the obligation of legal support upon the shoulders of the parents, especially the father, and only in their default is the obligation imposed on the grandparents.

Marcelino Lorenzo R. Dario IV is dependent on legal support not from his grandmother, but from his father. Thus, despite residing in the family home and his being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary contemplated under Article 154 because he did not fulfill the third requisite of being dependent on his grandmother for legal support. It is his father whom he is dependent on legal support, and who must now establish his own family home separate and distinct from that of his parents, being of legal age.

There is no showing that private respondent is without means to support his son; neither is there any evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandsons legal support. On the contrary, herein petitioner filed for the partition of the property which shows an intention to dissolve the family home, since there is no more reason for its existence after the 10-year period ended in 1997. With this finding, there is no legal impediment to partition the subject property. The law does not encourage co-ownerships among individuals as oftentimes it results in inequitable situations such as in the instant case. Co-owners should be afforded every available opportunity to divide their co-owned property to prevent these situations from arising.

Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a) The property under an ongoing installment plan may be constituted as family home.

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a) Note the maximum values of P300,000 in urban areas and P200,000 in rural areas. The reason for limiting the value of the family home is that the protection is intended for the family that best needs it, namely, the middle-class families, and those who can afford more expensive homes do not need the protection. This will also prevent people from putting all their income in family homes unnecessarily.

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a) Under this article, the family home shall continue despite the death of one or both spouses or of the head of the family:1. As long as there is a minor beneficiary still living in the home;2. Even if there is no more minor beneficiary, for a period of 10 years.a. In this case, the heirs cannot partition the same unless the court finds compelling reasons therefor.b. This rule shall apply regardless of whoever owns the property or constituted the family home.

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a) Creditors or lienholders mentioned in Art. 155 must be paid out of the proceeds first before the judgment creditor is paid. Therefore, the actual value of the home must not only exceed the maximum amount fixed in Art. 157, but the excess must also be over and above all claims under Art. 155. The increase in the value of the home over and above that fixed in Art. 157 might have been due to improvements introduced thereto after the home has been constituted. This will not preclude the judgment creditor from asking for the sale of the home as long as the original value plus improvements, exceeds the amount fixed in Art. 157.

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n) Article 162 simply provides that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have retroactive effect.

TITLE VIPATERNITY AND FILIATION

Chapter 1Legitimate Children

Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)

DISTINCTION: PATERNITY VS FILIATION While paternity (maternity) is the civil status relationship of the father (mother) to the child, filiation is the civil status or relationship of the child to the father.

CLASSIFICATION OF FILIATIONa) By nature (legitimate or illegitimate)b) By adoption

KINDS OF CHILDREN UNDER THE FAMILY CODEa. Legitimate one conceived or born during a valid marriage of the parents, or within lawful wedlock (Art. 164).b. Illegitimate one conceived and born outside a valid marriage or outside lawful wedlock (Art. 165).c. Legitimated one who is originally illegitimate but later considered legitimate by legal fiction because of the subsequent marriage of the parents who, at the time of the childs conception, had no legal impediment to marry each other (Art. 177 and 178).

DISTINCTION: LEGITIMATE VS. ILLEGITIMATELegitimate ChildrenIllegitimate Children

1. Use of SurnameRight to bear surname of the fatherRequired to use mothers surname. But under RA 9255, illegitimate children may now use the surname of their father, subject to some conditions.

2. Parental AuthorityJoint authority of parentsUnder the sole parental authority of mother

3. SupportPreferential right to support over mother if father has no sufficient means to meet both claimsNo such preference

4. Successional RightEntitled to inheritanceEntitled to of legitimate childs inheritance

5. Beneficiary Right Under SSS and GSISPrimary beneficiariesNot primary beneficiaries

6. Paternity LeaveFather is entitled to paternity leave of 7 days with full payNo such benefit

Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)DEFINITION: LEGITIMATE CHILD One conceived or born during the marriage of the parents, unless its status is impugned for causes provided for in the law. Children of marriages falling under the following articles are legitimate:1) Art. 362) Art. 533) Art. 43 in relation to Art. 414) Art. 45ARTIFICIAL INSEMINATION Artificial insemination is the impregnation of a female with semen from a male without sexual intercourse. Test-tube babies are those conceived as a result of artificial insemination. For such a child to be legitimate, the parents must have:a) authorized or ratified such inseminationb) in a written instrumentc) executed and signed by them before the birth of the childd) the instrument is recorded in the civil registry together with the birth certificate of the child The fact that the child was born of artificial insemination should not appear in the birth certificate of the child. In the case of artificial insemination of the wife with the semen of a donor, the donor must be unknown.

Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n) There is now no more distinction between the natural and the spurious children under the Family Code, unlike the Civil Code, where the a) Natural children were those born outside wedlock with parents who were capacitated to marry each other at the time of the conception of the child.b) Spurious children - referred to in the Civil Code as an illegitimate child other than natural.WHO ARE ILLEGITIMATE CHILDREN?1) Children born of couples who are not legally married, or of common-law marriages;2) Children born of incestuous marriages;3) Children born of bigamous marriages;4) Children born of adulterous relations between the parents;5) Children born of marriages void for reasons of public policy under Art. 38;6) Children born of couples below 18, whether they are married (which marriage is void) or not;7) Children of other void marriages under Art. 35, except where the marriage of the parents is void for lack of authority on the part of the solemnizing officer, but the parties or either of them had believed in good faith that the solemnizing officer had authority, in which case the marriage will be considered valid and the children will be considered legitimate (Art. 35, par. 2).

Art. 166. Legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) The physical incapacity of the husband to have sexual intercourse with his wife; (b) The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) Serious illness of the husband, which absolutely prevented sexual intercourse;(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)PARAGRAPH 1a) Reason for the 120 days of the 300 days of which immediately preceded the birth of the child: 300 minus 120 equal to 180 days or 6 months which may be at the earliest, the intrauterine life of the child. Upon the other hand, if the child was conceived on the 1st day of said 120 days, it must have had an intrauterine existence of 300days or 10 months, which may be the maximum duration of its existence in the maternal womb.b) Living separately here, sexual intercourse must not be possible. If the husband and wife live in foreign countries or far provinces and there had been no visit between them during the period in which conception could have taken place, the presumption of legitimacy does not exist. If possible as when they visit each other now and then this would not be a ground for impugning the legitimacy.c) Serious illness of the husband which absolutely prevented sexual intercourse, e.g., if the husband was already comatose or a vegetable. But TB, even in its most crucial stage, does not preclude copulation between the sick husband and his wife.PARAGRAPH 2This deals with biological, ethnic, or other scientific reasons.

PARAGRAPH 3This deals with vitiated consent on the matter of test-tube babies.

Only the husband whom the law considers the father of the child, or his heirs (under Art. 171), can bring an action to impugn the childs status. The child cannot choose his or her own filiation.

Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a)

In the first, the wife may have declared the illegitimacy in a fit of anger or jealousy; in the second, she might have already been pregnant at the time she committed adultery as when having sex with two men, the husband may possibly be the father of the child.

Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a) The rules are only applicable in the absence of proof to the contrary. If born after 300 days following the termination of the marriage, Art. 169 applies.

REQUISITES FOR THE CHILD TO BE THE CHILD OF THE FIRST MARRIAGEa) The mother must have married again within 300 days from the termination of her first marriage;b) The child must have been born within 300 days after the termination of the first marriage; and,c) Said child must have been born within (or before the end of) 180 days after the solemnization of the second marriage.

CHILD IS BORN

Termination of180 days after300 daysfirst marriagecelebration ofsubsequent marriage

REQUISITES FOR THE CHILD TO BE THE CHILD OF THE SECOND MARRIAGEa) The mother must have married again within 300 days from the termination of her first marriage;b) The child must have been born within 300 days after the termination of the first marriage; orc) Said child must have been born after 180 days following the solemnization of the second marriage.CHILD IS BORN

Termination of180 days after300 daysfirst marriagecelebration ofsubsequent marriage

Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a)

The law does not give a status to a child born after 300 days following the termination of the marriage of the mother because the birth of the child is already beyond said period of 300 days which the law considers the longest period of gestation of a foetus in the mothers womb. A child born 10 months and 11 days after a mans sexual intercourse with a woman is probably NOT the resultant of such sexual relation, unless after said sexual intercourse, several others sexual relations were had.

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a) Periods for filing action: Within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. Within two years if the husband or his heirs does not reside in the city or municipality where the childs birth took place or was recorded but his (or their) residence is in the Philippines. Within three years if the childs birth took place or was recorded in the Philippines while the husband (or his heirs) has his residence abroad, or vise versa.If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from: The discovery or knowledge of the birth of the child, or The discovery or knowledge of the fact of registration of said birth, whichever is earlier. Registration of the birth of the child in the civil registry is not considered by this article as constructive notice of such birth. There must be actual knowledge of such registration by the husband or, in proper cases, his heirs. This article is not applicable if the action is not to impugn the legitimacy of a child but to have the child declared not a child of the alleged mother and not her legal heir. The presumption of legitimacy in the Family Code serves a very fundamental purpose. It fixes a civil status for the child born in wedlock. Such civil status cannot be attacked collaterally. The legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties, and within the period limited by law. Upon the expiration of the periods provided in Art. 170, the action to impugn the legitimacy of the child can no longer be brought. The status conferred by the presumption, therefore, becomes fixed, and can no longer be questioned.

Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the husband should died before the expiration of the period fixed for bringing his action; (2) If he should die after the filing of the complaint without having desisted therefrom; or (3) If the child was born after the death of the husband. (262a) Who can impugn the legitimacy of the child?1. Father2. Heirs in exceptional cases (Art.171) heirs include all kinds of heirs, whether testamentary or legal, compulsory or voluntary. The heirs must be merely acting in substitution of the husband in contesting the legitimacy of the child. The heirs cannot bring the action if it clearly appears that the husband: 1) did not make use of this right; or 2) has desisted in his intention to contest the legitimacy of the child. The heirs of the husband may file the action or continue the same if it has already been filed, in the following cases:1) If the husband dies without bringing the action, but the periods prescribed in Art. 170 have not yet expired;2) If the husband has already filed the action but dies during its pendency, without desisting therefrom; and,3) If the child is born after the death of the husband.Benitez-Badua vS. COURT OF APPEALS229 SCRA 468FACTS:Spouses Vicenta Benitez and Isabel Chipongian, owners of various properties in Laguna, died on 1982 and 1989, respectively. Vicente died intestate. On September 1990, private respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar (Vicentes sister and nephew) instituted an action praying for the issuance of letters of administration of Vicentes estate as sole heirs of the decedent. They contended that petitioner Marissa Benitez Badua is not related by blood nor by legal adoption to the spouses, and therefore not their legal heir. They presented testimonial evidences that the spouses failed to beget a child during their marriage; that Isabel, then 36 years old, was even referred to an ob-gyne for treatment; that the spouses were unable to physically procreate. Petitioner opposed the petition alleging that she is the sole heir of the deceased Benitez and is capable of administering his estate. She also testified that the said spouses reared and continuously treated her as their legitimate daughter. The trial court decided in favor of the petitioner relying on Article 166 and 170 of the Family Code. On appeal, the CA reversed the decision of the TC.

ISSUE: Whether or not the TC was correct for applying the aforesaid articles of the FC

HELD:Articles 164, 166, 170 and 171 of the Family Code are not applicable to the case. These articles show that they do not contemplate a situation where a child is alleged not to be the child of nature or biological child of a certain couple. Rather, this case governs a situation where a husband (or his heirs) denies as is own a child of his wife. Thus, under Art. 166, it is the husband who can impugn the legitimacy of said child. Arts. 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy.

The totality of contrary evidence presented by the private respondents rebutted the evidence of petitioner: Evidence is cogent and clear that Isabel never became pregnant and, therefore, never delivered a child. Spouses wanted to adopt a baby; Vicente finally brought home a baby girl and told his sister that he would register the baby as his and his wifes child. How come, that as appearing in the birth certificate, Marissa was born at the Benitez home with no physician or even a midwife attending when that would have been difficult and quite risky to Isabels health and even life? The mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption. Why Vicente and Isabels only brother state in the extrajudicial settlement did executed to Isabels estate that they are the sole heirs of Isabel? Why would Isabel write a note to her husband before her death pleading that Vicente make their daughter as his sole heir, when if Marissa is truly their daughter, she would be their legal heir by operation of law? Vicentes sister even testified that Vicente gave the date December 8 as Marissas birthday in her birth certificate because that date is the birthday of Vicentes mother.

The appellate court did not err when it refused to apply these articles to the case at bench. For it is not one where the heirs of the late Vicente are contending that petitioner is not his child Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel.

Babiera vS. Catotal333 SCRA 487FACTS:Teofista Babiera was delivered by hilot in the house of spouses Eugenio and Hermogena Babiera. Without the knowledge of the spouses, Flora Guinto, the mother and a housemaid of the spouses, caused the registration/recording of the facts of birth of her child, by simulating that she was the child of the spouses Eugenio (65) and Hermogena (54), and made Hermogena appear as the mother by forging with her signature.

Presentacion Catotal filed a petition for the cancellation of the entry of birth of Teofista. Presentacion asserted that she is the only surviving child of the spouses Eugenio and Hermogena Babiera. The RTC declared the birth certificate of Teofista as null and void. On appeal, the CA affirmed the decision of RTC, holding that the evidence proved that petitioner was not the biological child of Hermogena. Moreover, the birth certificate was not signed by the local civil registrar, and the purported signature of Hermogena was different from her other signatures.

ISSUE:Whether or not there is a presumption in favor of the regularity in the issuance of the birth certificate

HELD:A legitimate child has the requisite standing to initiate an action to cancel the birth certificate of one claiming to be a child of the formers mother.

Art. 171 of the FC is not applicable to the present case. Article 171, FC, applies to instances in which the father impugns the legitimacy of the wifes child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner. In other words, the prayer herein is not to declare that petitioner is an illegitimate child of Hermogena, but to establish that the former is not the latters child at all. The present action does not impugn petitioners filiation to spouses Babiera, because there is no blood relation to impugn in the first place.

An action to cancel a persons Birth Certificate for being allegedly void ab initio does not prescribe, and the prescriptive period set forth in Art 170, FC, does not apply.

While it is true that an official document such as a Birth Certificate enjoys the presumption of regularity, the specific facts that there were irregularities regarding the Birth Certificate itself, such as it was not signed by the local civil registrar, and that the alleged mothers signatures, as well as such other circumstance showing that the latter is not the real mother, sufficiently negate such presumption. Relying merely on the assumption of validity of the birth certificate, petitioner has presented no other evidence other than the said document to show that she is really Hermogenas child.

DE JESUS VS. DIZON366 SCRA 499FACTS:Danilo de Jesus and Carolina Aves de Jesus got married in August 1964. They had children, Jacqueline and Jinkie Christie, herein petitioners. In a notarized document, Juan Dizon acknowledged Jacqueline and Jinkie as being his own illegitimate children by Carolina Aves de Jesus. Juan died intestate, leaving behind considerable assets consisting of shares of stock in various corporations and some real property. Based on this, they filed a complaint for partition of the Dizon estate.

Respondents, the surviving spouse and legitimate children of the decedent Juan Dizon, sought the dismissal of the case because it calls the altering of the status of petitioners from being the legitimate children of the spouses Danilo and Carolina de Jesus to instead be the illegitimate children of Carolina de Jesus and deceased Juan Dizon.

The trial court denied, due to lack of merit, the motion to dismiss. The appellate court upheld the decision of the lower court.

ISSUE:Whether or not two illegitimate children who, having been born in lawful wedlock, claim to be the illegitimate scions of the decedent in order to enforce their respective shares in the latters estate under the rules on succession

HELD: A scrutiny of the records would show that petitioners were born during the marriage of their parents. The certificates of live birth would also identify Danilo de Jesus as being their father. In an attempt to establish their illegitimate filiation to the late Juan Dizon, petitioners, in effect, would impugn their legitimate status as being children of Danilo de Jesus and Carolina Aves de Jesus. This step cannot be aptly done because the law itself establishes the legitimacy of children conceived or born during the marriage of the parents.The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional instances the latters heirs, can contest in an appropriate action the legitimacy of the child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected.Indeed, a child so born in such wedlock shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as having been an adulteress.

LIYAO, JR. VS. TANHOTI-LIYAO 378 SCRA 563FACTS:In November 1976, William Liayo, Jr., represented by his mother Corazon Garcia filed an action for compulsory recognition as the illegitimate child of the late William Liyao. The complaint was later amended to include the allegation that petitioner was in continuous possession and enjoyment of the status of the child of said William Liyao, having been recognized and acknowledged as such child by the decedent during his lifetime.

Corazon is legally married for 10 years but living separately from husband Ramon Yulo. Corazon cohabited with the late William Liyao until his death. They lived with Corazons 2 children with husband Ramon. In 1975, Corazon gave birth to William Liyao, Jr. All the medical and hospital expenses, food and clothing were paid under the account of William Liyao. He also gave weekly allowance to the child. Moreover, he would bring the child to the office, introducing him as his good looking son, and would have their pictures taken together. Since birth, the child has been in continuous possession and enjoyment of the status of the child of said William Liyao by the latters direct and overt acts.

The trial court rendered a decision declaring the child as the illegitimate son of the deceased William Liyao. The CA, however, reversed the ruling of the trial court saying that the law favors the legitimacy rather than the illegitimacy of the child.

ISSUE:Whether petitioner may impugn his own legitimacy to be able to claim from the estate of his supposed father, William Liyao

HELD:It bears emphasis that only the father may impugn the legitimacy of the child or in proper cases, his heirs under the conditions set forth in Article 262 of the Civil Code. Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, the heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produced and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved.

A child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Only the husband (Ramon Yulo, in this case), or in exceptional circumstances, his heirs, could impugn the legitimacy of the child born in a valid and subsisting marriage. If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mothers alleged paramour.

GERARDO CONCEPCION VS. CA and MA. THERESA ALMONTE August 31, 2005FACTS:Gerardo and Theresa were married on December 29, 1989 and after the marriage lived with Theresas parents at Fairview, QC. Almost a year later or on December 8, 1990 Theresa gave birth to Jose Gerardo. The marriage turned to be short-lived because on December 19,1991 Gerardo filed a petition for annulment of his marriage with Theresa on the ground of bigamy. It was found out that Theresa married one Mario Gopiao on December 10, 1980, which marriage was never annulled and that Mario is still alive and is residing in Loyola Heights, QC. The annulment was granted and declared Jose Gerardo as an illegitimate child. Custody was granted to Theresa but Gerardo was granted visitation rights. Feeling betrayed and humiliated when Gerardo had their marriage annulled and held him responsible for the bastardization of the child, she moved for a partial reconsideration of the trial courts ruling contending that there is nothing in the law granting visitation rights in favor of a putative father of an illegitimate child. She further maintained that the surname of the child should be changed from Concepcion to Almonte following the rule that the illegitimate shall use the surname of the mother. The court denied Theresas motion applying the best interest of the child principle. Theresa went to the CA that also denied her appeal. She then moved for reconsideration. The appellate court in resolving the reconsideration ruled that when Jose Gerardo was born on December 8, 1990, Theresa was legitimately married to Mario therefore Jose Gerardo under the law- is the legitimate child of Mario and Theresa. Shocked and stunned Gerardo filed this appeal.

ISSUE:Whether or not Jose Gerardo is the child of Gerardo

HELD:The status and filiation of the child cannot be compromised, Article 164 of the Family Code is clear. A child who is conceived or born during the marriage of his parents is legitimate. As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides: The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Gerardo cannot invoke Article 166 (1) as he has no standing to dispute the status of the child. Only Mario, Theresas husband, or, in a proper case, his heirs who can contest the legitimacy of the child Jose Gerardo born to his wife. Impugning the legitimacy of the child is a strictly personal right of the husband or, in exceptional cases, his heirs. Since the marriage of Gerardo and Theresa was void from the very beginning, he never became her husband and thus never acquired any right to impugn the legitimacy of her child.

To rebut the presumption of legitimacy it must be shown beyond reasonable doubt that there was no access that could have enabled the husband to father the child. Here, during the period that Gerardo and Theresa were living together in Fairview, Mario was living in Loyola Heights which is also in QC. Fairview and Loyola Heights are only a scant 4 kilometers apart.

ONG VS. DIAZ540 SCRA 480FACTS: A Complaint for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz, represented by her mother and guardian, Jinky C. Diaz against Rogelio G. Ong. Jinky prayed that defendant would recognize Joanne as his daughter and give monthly support.

Jinky alleged that she and Rogelio got acquainted in November 1993. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on February 19, 1993. From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together. From this live-in relationship, minor Joanne Rodjin Diaz was conceived and born. Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joannes needs recognizing the child as his.

In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child. Rogelio, despite Jinkys remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the complaint. The trial court rendered a decision in favor of respondents. Upon motion of Ong, the RTC declared Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong. The CA remanded the case to the lower court directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz.

ISSUE: Whether or not the remand of the case to the RTC for DNA analysis was proper

HELD: The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child.

A child born to a husband and wife during a valid marriage is presumed legitimate. As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides: The children shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code provides:

Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

1) By the impotence of the husband;2) By the fact that husband and wife were living separately in such a way that access was not possible;3) By the serious illness of the husband.

The relevant provisions of the Family Code provide as follows:

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

(1) The record of birth appearing in the civil register or a final judgment; or(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:(1) The open and continuous possession of the status of a legitimate child; or(2) Any other means allowed by the Rules of Court and special laws.

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

There had been divergent and incongruent statements and assertions bandied about by the parties to the present petition. But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing.

Coming now to the issue of remand of the case to the trial court, petitioner questions the appropriateness of the order by the CA directing the remand of the case for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. Petitioners argument is without basis especially as the New Rules on DNA Evidence allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation. From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.