Explanations of Assigned Articles of the Family Code

Article Explanation

Art. 377. Usurpation of a name and surname may be the subject of an action for damages and other relief.

Explanation:

The right to a name is one of the rights of personality. Usurpation of name implies injury to the interests of the owner of the name – possibility of confusion of identity or the appearance of some family relations between the owner and the usurper. The following are elements of usurpation of a name: (a) that there is an actual use of another’s name by the defendant; (b) that the use is unauthorized; and (c) the use of another’s name is to designate personality or identify a person. It is not necessary to prove actual injury to the owner of the name because there is always the potential harm due to the possibility of confusion of identity. The usurper is liable for damages under Art. 377 and Art. 21 of the Civil Code for contempt (Section 3 [e], Rule 71, Rules of Court).

Art. 378. The unauthorized or unlawful use of another person’s surname gives a right of action to the latter.

Explanation:

This article covers the unauthorized or unlawful use of surname. It covers the use of a name for other purposes, such when the name is used to call an animal or a trademark for some merchandise. If the owner suffers an injury, he is entitled for damages as when his surname is used to identify an obnoxious commodity designed to ridicule his person. If the purpose of the user in using another’s surname is to conceal his own true identity, he is guilty of concealing true name punishable by the Revised Penal Code (Art. 178).

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. (n)

Explanation:

Paternal authority patria petestas is the mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even after this under certain circumstances.

The article emphasizes that pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility includes: (a) the caring for and rearing of such children for civic consciousness and efficiency; and (b) the development of their moral, mental and physical character and well-being.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. (313a)

Explanation:

Parental authority can not be renounced or transferred except in the cases authorized by law, such as: (a) guardianship; (b) adoption; and (c) deprivation or suspension of parental authority (Arts. 223-224).

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. (311a)

Explanation:

Both spouses exercise parental authority over their common children and in case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

The children shall always observe respect and reverence toward their parents, whether or not they are not under parental authority. The children are obliged to obey his or her parents as long as they are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (n)

Explanation:

The parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be guardian of the person or property of the children.

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n)

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Explanation:

In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the parent chosen is unfit. The task of choosing the parent to whom custody should be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or over seven years of age, the paramount criterion must always be the child’s interest. Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration. To be sure, the welfare, best interests, the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the custodian. When the parents of the child are separated, Article 213 of the Family Code is the applicable law.

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. (268a)

Explanation:

Only the child by himself or his guardian, if incapacitated, and in proper cases, the heirs of the child can bring the action to claim the child’s legitimacy. The proper cases where the heirs can bring the action are: (a) death of the child during minority; or (b) death of the child in a state of insanity.

The action may be brought by the child during his or her lifetime and even after the death of the parents. If the child is a minor, or is incapacitated or insane, his or her guardian can bring the action in his/her behalf during the child’s lifetime. If the child dies after reaching majority without bringing the action, the heirs are precluded from filing the same. However, the heirs, in case of death of the child during minority or insanity, shall have a period of five years to file the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. If the child dies after commencing the action, the action will survive and the heirs of the child will be substituted for him. This action is among those that survive under the Revised Rules of Court.

Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be suppletory. (212a)

Explanation:

The regime of complete separation of property is that matrimonial property regime agreed upon in the marriage settlements by the future spouses whereby each spouse shall own, dispose of, possess, administer, and enjoy his or her separate estate or earnings acquired before and during the marriage without the consent of the other, with each spouse bearing the family expenses proportionally to their earnings and profits of their separate properties.

The advantage of this regime is its simplicity. It does not require a complicated liquidation upon the dissolution of marriage. The disadvantage of the regime is that it is based on distrust. It can result in disputes between the spouses in the sharing of the family expenses.

The regime of complete separation of property is applicable: (a) when the spouses agree upon it in the marriage settlements; and (b) if ordered by the court in proper cases.

The regime is governed: (a) by the provisions in the marriage settlements; and (b) suppletory, by the provisions of this Chapter.

Definition: suppletory = supplementary

Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. (213a)

Explanation:

Kinds of separation of property

By Existence: (a) present property; (b) future property; or (c) both present and future property

By Extent: (a) total; or (b) partial

In case of partial separation: the property not agreed upon as separate shall pertain to the absolute community

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (214a)

Explanation:

Each spouse shall own, dispose of, possess, administer, and enjoy his or her own separate estate, without the need of the consent of the other.

All earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property shall belong to each spouse.

Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties.

The liabilities of the spouses to creditors for family expenses shall, however, be solidary. (215a)

Explanation:

The family expenses shall be borne by both spouses: (a) in proportion to their income; or (b) in case of insufficiency or default of said income, to the current market value of their separate properties.

If a spouse has no income but has separate properties, the other spouse who earns an income may advance payment of the family expenses for said spouse subject to reimbursement at the appropriate time.

As to creditors for family expenses, the liability of the spouses shall be solidary. Hence, said creditors can go after each spouse for the full amount of the credit. If one spouse pays for the entire debt, he can secure reimbursement thereof from the other spouse.

Article 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains.

Explanation:

The Conjugal Partnership of Gains (CPG), like the Absolute Community of Property (ACP), start at the precise moment the marriage is celebrated. Any contrary stipulation, express or implied shall be void.

The rights, interests, shares and effects of the CPG cannot be waived by either or both parties during the marriage.

However, a waiver may take place under the following instances:

1. When there is a judicial separation of property; and

2. After the marriage has been dissolved or annulled.

Article 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.

Explanation:

The community property shall consist of:

All the properties separately owned by each spouse at the time of the celebration of the marriage; and

All property acquired by each or both spouse during the marriage.

The separate properties of each spouse existing at the time of marriage is automatically converted by operation of law into common property, without the necessity of any juridical act transmitting ownership of said separate properties.

The following properties are excluded from the community property:

1. Those specifically excluded by agreement in the marriage settlements.

2. Those excluded by law under Art. 92 of this Code.

Article 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlement or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.

Explanation:

The future spouses may, in the marriage settlements, agree upon the following property regimes: (a) The regime of absolute community; (b) Conjugal partnership of gains; (c) Complete separation of property; or (d) any other regime. The marriage settlements, however, must not be contrary to law, good morals, good customs, public order or public policy (Art. 1306, Civil Code). In the absence of marriage settlements, or when the regime agreement is void, the system of absolute community of property as established in this Code shall govern.

If the spouse in their marriage settlements expressly reject the regime of absolute community of property but do not state the regime that will govern their property relations, the following shall govern: (a) The local customs as provided under Art. 74 (3) of this Code; (b) If there is no local custom or the local custom is not determinable, the intention of the parties themselves should be sought. Their conduct during the marriage may indicate what they intended; or (c) If the intention cannot be determined, the rules of co-ownership under art. 147 of this Code may be applied by analogy.

Article 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.

Explanation:

It is state policy to save all marriages as embedded in Article 15 of the Philippine Constitution:

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

As such, the courts are obliged to exert all efforts to reconcile the spouses. On 15 March 2003, the Supreme Court issued A. M. No. 02-11-11-SC entitled 'Rule on Legal Separation'.

Under Sections 8 - 12 of the Rule on Legal Separation, provides the procedures for the pre-trial conference. It is hoped that through these procedures, the couple will be able to iron out their differences and reconcile. This shall be done 6 months prior to trial. If reconciliation occurs, a Decree of Reconciliation shall be issued by the court with both spouses issuing a joint manifestation under oath and the proceeding shall end. If reconciliation is not possible, a pre-trial order will be promulgated and presented to the court for decision.

Article 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n)

Explanation:

The children of the subsequent marriage conceived before its termination are legitimate. Their custody and support in case of dispute shall be decided by the court in a proper proceeding.

The absolute community of property or conjugal partnership shall be dissolved and liquidated. If one of the parties to the subsequent marriages was in bad faith, his or her share of the net profits of the community or conjugal partnership property shall be forfeited in the following order: (a) in favor of their common children; (b) if there are none, to the children of the guilty spouse by a previous marriage; and (c) in the absence or default of said children, to the innocent spouse.

Donations by reason of marriage shall remain valid. However, if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law. In case the donation propter nuptias is given to both spouse, only the portion that pertains to the guilty spouse shall be revoked.

The innocent spouse may revoke the designation of the guilty spouse as beneficiary in any insurance policy, even if the such designation be stipulated as irrevocable.

The guilty spouse shall be disqualified to inherit from the innocent spouse by testate or intestate succession.

The article punishes the party to the subsequent marriage who was in bad faith. Bad faith on the part of the present spouse or the new spouse may arise when he or she knew the whereabouts of the absent spouse and that the latter is alive. It may also arise when the periods for ordinary absence (4 years) and for extraordinary absence (2 years) have been deliberately not complied with.

Article 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives.

Explanation:

No marriage license is required for a marriage where either or both of the contracting parties are at the point of death (in articulo mortis). Such marriage without a license shall remain valid even if the ailing party subsequently survives. A mere sickness or being in danger of death is not covered by this article. One or both of the parties must be “at the point of death.”

Article 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: (1) Full name of the contracting party; (2) Place of birth; (3) Age and date of birth; (4) Civil status; (5) If previously married, how, when and where the previous marriage was dissolved or annulled; (6) Present residence and citizenship; (7) Degree of relationship of the contracting parties; (8) Full name, residence and citizenship of the father; (9) Full name, residence and citizenship of the mother; and (10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years.

The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a)

Explanation:

Refers to the application for a marriage license and the matters it must contain. Said application shall be sworn to and filed separately by each of the contracting parties with the proper local civil registrar.