THE FAMILY

THE FAMILY AS AN INSTITUTION

CONSTITUTIONAL POLICIES ON FAMILY (1987 CONSTITUTION)

Sec. 12 Art. II, Declaration of Principles and State Policies:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.xxx

Sec 1. Art. XV, The Family

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

JURIDICAL CONCEPT OF FAMILY

The family is the natural and social institution, founded on the conjugal union, that 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.

IMPORTANCE OF THE FAMILY

The family is an essential factor in the general, social and even political life. Constant living together of 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 conquests 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 its nucleus, the family. This explains the interest of the State in the family.

THE POLICY OF THE LAW ON FAMILY (Art. 149)

The family is the foundation of the nation. Being the foundation of the nation, the family is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law. No custom, practice, or agreement destructive of the family shall be recognized or given effect.

FAMILY RELATIONS (Art. 150)

Between husband and wife; Between parents and children (legitimate and adopted); Among brothers and sisters, whether of the full or half blood.

RULES TO REMEMBER ON FAMILY RELATIONS

Family relations exist among the relatives aforementioned even if they are not living together. 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. Illegitimate children are not included in the family relations under the above Article because they have their own families. Besides, this Chapter refers to the family as an institution and for this reason, it cannot include illegitimate children.

Adopted children, being part of the family, are included. Nephews and nieces, uncles and aunts, are not included because they have their own families. The relatives mentioned in this Article include those of the husband as well as those of the wife.

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 case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.(222a)

REASON FOR THIS ARTICLE:

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. 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.

REQUIREMENTS BEFORE A SUIT BETWEEN THE MEMBERS OF THE SAME FAMILY (Art. 150) MAY PROSPER:

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. The petition or complaint is required to be verified as an assurance of the truth of the allegation therein that earnest efforts toward a compromise have been made but the same have failed.

The reason for the rule is to avoid or diminish litigations among members of the same family. However, even if the required allegation is made but it appears at the pre-trial that the same is not true, the case must be dismissed. If the case can be compromised at the pre-trial, this author sees no reason why the case should be dismissed. After all, the compromise will end the litigation.

RULE NOT APPLICABLE TO MATTERS THAT CANNOT BE COMPROMISED:

The civil status of persons The validity of a marriage or a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; Future legitime.

PATERNITY AND FILIATION

CHAPTER 1 LEGITIMATE CHILDREN

PATERNITY AND FILIATION

PATERNITY - the relationship or status of a person with respect to his or her child (paternity includes maternity). FILIATION - the status of a person with respect to his or her parents.

TYPES OF FILIATION:
1. Natural
a. Legitimate (Art. 164) b. Illegitimate (Arts.165, 175, 176) c. Legitimated (Arts. 167-172)

2. By Adoption
(R.A. No. 8552 (Domestic Adoption Act) and R.A. No. 8043 (Inter-country Adoption Act)

TYPES CHILDREN:
3 TYPES OF LEGITIMATE CHILDREN:
1. Legitimate proper 2. Legitimated 3. Adopted

2 TYPES OF ILLEGITIMATE CHILDREN:

1. Children of parents disqualified to marry each other at conception and marriage. 2. Children of parents qualified to marry each other

A. LEGITIMATE CHILDREN
GENERAL RULE: Those who are conceived or born during a valid marriage. EXCEPTIONS to the general rule are those children who are: Conceived as a result of artificial insemination. 2. Born of a voidable marriage before decree of annulment 3. Conceived or born before judgment of annulment or absolute nullity under Art. 36 (psychological incapacity) becomes final & executory
1.

4. Conceived or born of a subsequent marriage under Art. 53 (failure to record the judgment, partition and distribution of properties, and delivery of childrens presumptive legitime) 5. Of mothers who may have declared against their legitimacy or was sentenced as an adulteress. 6. Legally adopted

7. Legitimated, conceived and born outside of wedlock of parents without impediment at the time of conception and who subsequently married.

For children by artificial insemination to be considered legitimate:

1. 2. 3. The artificial insemination is made on the wife, not on another woman AND The artificial insemination on the wife is done with the sperm of the husband, or of a donor, or both the husband and a donor AND The artificial insemination has been authorized or ratified by both spouses on a written instrument executed and signed by them before the birth of the child, AND The written instrument is recorded in civil registry together with the birth certificate of the child.

4.

IMPUGNING LEGITIMACY:

Liyao v. Liyao 378 SCRA 563 (2002)

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. The child himself cannot choose his own filiation. 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.

Grounds to impugn the legitimacy of the child:

1. Physically impossibility 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. 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 intercourse.

2. Biological or other scientific grounds that the child could not have been that of the husband, except in the case of children conceived through artificial insemination a. Blood grouping tests can determine non-paternity but not paternity (ex. A-B-O test). b. Human Leukocyte Antigen Test (HLA) can prove identity between child and father with a probability exceeding 98%. c. DNA test d. Vasectomy [NOTE: SEMPIO-DIY: A double vasectomy, together with other pieces of evidence, can show the impossibility of the alleged father siring his supposed child; STA. MARIA: The fact that the husband has undergone vasectomy is not enough proof to rebut the presumption of legitimacy (Cocharan v. Cocharan).]

3. Written authorization or ratification of either parent of children conceived through artificial insemination, when the was obtained through mistake, fraud, violence, intimidation, or undue influence.

Who can impugn the legitimacy of a child

General Rule: Only the husband can impugn the legitimacy of a child. Exceptions: The heirs of the husband may impugn the childs filiation in the following cases: a. If the husband dies before the expiration of period for filing the action b. If the husband dies after filing without desisting c. If the child was born after the death of the husband.

When to impugn the legitimacy of a child:

1. Within 1 year from knowledge of the birth or its recording in the civil register, if the impugner resides in the city or municipality where the birth took place or was recorded; 2. Within 2 years from knowledge of the birth or its recording in the civil register, if the impugner resides in the Philippines other than in the city or municipality where the birth took place or was recorded; 3. Within 3 years from knowledge of the birth or its recording in the civil register, if the impugner resides abroad. NOTE: Legitimacy cannot be collaterally attacked. It can only be impugned in a direct action.

If the birth of the child has been concealed or was unknown to the husband or his heirs, the above periods shall be counted: 1. From the discovery or knowledge of the birth of the child 2. From the discovery or knowledge of the fact of registration of the birth, whichever is earlier.

IN CASE OF TWO MARRIAGES OF THE MOTHER:

For the child to be considered the child of the 1st husband, the following requisites must concur:
1. The mother must have married again within 300 days from the termination of her first marriage.
2. The child was born within the same 300 days after the termination of the former marriage of its mother.

3. The child was born before 180 days after the solemnization of its mother's 2nd marriage.

For the child to be considered the child of the 2nd husband, the following requisites must concur: 1. The mother must have married again within 300 days from the termination of the marriage. 2. The child was born within the same 300 days after the termination of its mother's first marriage. 3. The child was born after 180 days following the solemnization of its mother's second marriage.

NOTE: The first marriage must be terminated either by death or annulment.

There is no presumptive rule on the status of a child born after 300 days following the termination of the marriage. (Art. 169) [Reason: 300 days is the longest period of gestation.]