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.
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