INTRO (CLM1) – MODULE 6: Family Relations, Emancipation, Funerals, & Use of

Surnames 1

MODULE 6
FAMILY RELATIONS, EMANCIPATION,
and USE OF SURNAMES
WEEK 5 – 27 August 2018

THE FAMILY

❶ Family defined. – The term “family” may be defined as “the natural

and social institution which, founded on the conjugal union, binds together the
individuals who compose 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 a basic social institution which public policy
cherishes and protects. No custom, practice, or agreement which is
destructive of the family shall be recognized or given effect.

❷ Extent of “Family Relations”. – The scope and coverage of the term

“family relations” is defined in Article 150 of the Family Code as follows:

“ARTICLE 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)
❸ Family solidarity. – Because of the very important role that the family
plays in nation building, it is the policy of the state to strengthen family
solidarity.

⮲ “Earnest efforts toward compromise.” – This policy of the state is

exemplified and given flesh in the provisions of Article 151 of the Family
Code, which requires that earnest efforts toward a compromise be first
exerted before action or suit between or among members of the same family
may be given due course.

⮲ “Members of the same family.” – The phrase “members of the

same family” in Article 151 refer to the persons named in Article 150 of the
Family Code above.
(a) A suit filed by the children against their father for illegally withdrawing
bank deposits in their name is covered by the rule on prior earnest efforts
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toward a compromise. (Jimenez vs. Jimenez, G.R. No. L-26797, 27 May

1968,
(b) A sister-in-law is a stranger with respect to the family of their spouses
and, as such, the mandatory requirement of “earnest effort toward a
compromise” does not apply to them. (Martinez vs. Martinez, G.R. No.
162084, 28 June 2005, 461 SCRA 562.)

⮲ Effect of failure to comply with Article 151. – Considering that

Article 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 toward a compromise have been made but that the same
failed. If it is shown that no such efforts were in fact made, the case must be
dismissed. The attempt to compromise as well as its failure or inability to
succeed is, therefore, a condition precedent to the filling of a suit between
members of the same family in court.

THE FAMILY HOME

❶ Family home defined. – The family home is a sacred symbol of

family love and is the repository of cherished memories that last during one’s
lifetime. It is the dwelling house where the husband and wife, or an
unmarried head of a family, reside, including the land on which it is situated.
(Article 152, FC.)

⮲ Ownership of land – It is required that the family home be built on

land forming part of the the absolute community or the conjugal partnership,
or the exclusive properties of any one of the spouses, or an unmarried head
of the family. (Article 156, FC.)

❷ How constituted. – The family home is deemed constituted on a

house and lot from the time it is occupied as a family residence. (Article 152,
FC.)
⮲ From the time of its constitution, and so long as any of its
beneficiaries actually resides therein, the family home continues to be such.
(Article 153, FC.)

❸ Beneficiaries of the family home. – The beneficiaries of the family

home are:
(a) The husband and wife, or an unmarried person who is the head of a
family; and
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(b) 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. (Article 154,
FC.)

❹ Advantages of a family home. – The family home is exempt from

execution, forced sale, or attachment. It is liable only for:

(a) Non-payment of taxes;

(b) Debts incurred prior to the constitution of the family home;
(c) Debts secured by mortgage on the premises before or after such
constitution; and
(d) Debts due to laborers, mechanics, architects, builders, materialmen
and others who have rendered service or furnished material for the
construction of the building. (Article 155, FC.)

PATERNITY AND FILIATION

❶ Paternity and filiation distinguished. – Paternity is the civil status of

a father in relation to his child. Filiation, on the other hand, is the civil status
of a child in relation to his or her parents. In other words, paternity speaks of
the father’s relation to his child, while filiation refers to the child’s relation to
his or her parents.

❷ Types of filiation. – The filiation of children may be by nature, or by

adoption. (Art. 163, FC.)

⮲ Natural filiation, which is established by blood relationship, can

either be legitimate or illegitimate. (Art. 163, FC.)
⮲ Filiation may likewise be created by a judgment of adoption.
Through a judgment of adoption, a legitimate filiation is created, by legal
fiction between parent or parents, and a child.

❸ Status of children; how determined. – Under the Family Code, the

legitimacy or illegitimacy of a child attaches upon its conception. In other
words, the law and only the law determines who the legitimate or illegitimate
children are. It cannot be made dependent on the declaration of the attending
physician or midwife, or that of the mother of the newborn child.
⮲ Status must be judicially determined. – Paternity and filiation or
the lack of the same is a relationship that must be judicially established. Only
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the court can determine its existence or absence. It cannot be left to the will
or agreement of the parties.

❹ Legitimate children. – Legitimate children have been defined as

those conceived or born during the marriage of the parents. (Art. 164, par. 1,
FC.)

⮲ The child may be conceived before the marriage of the parents

but born after they marry each other. It may be conceived after the
celebration of the marriage and born during its subsistence, which is the usual
case. Lastly, it may be conceived during the marriage, but born after the
termination of the marriage. In all these instances the child is considered
legitimate.

⮲ Illustrative examples:
(a) Juan, a married man, has an affair with his unmarried secretary. The
secretary gets pregnant. The wife of the married man dies of a heart attack
when she learns of the pregnancy. After the death of the wife, Juan maries
the secretary. After the subsequent marriage, the child is born. Note here
that the child was conceived at the time the father is still married to another
person. However, this notwithstanding, the child will be presumed the
legitimate child of Juan and the secretary having been born during the
subsequent marriage.
(b) Honey and Sweetie are married. Honey gets pregnant after which
Sweetie dies. To alleviate her loneliness, Honey lives with Pong, who is
separated from his wife. During the cohabitation of Pong and Honey, a child
is born. The child will be considered the legitimate child of Honey and
Sweetie.

⮲ Children conceived of artificial insemination – Likewise

considered legitimate are children conceived of artificial insemination of the
wife with the sperm, either of the husband or donor, or both, provided that
both the husband and the wife authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of the child.
This instrument is required to be recorded in the local civil registry together
with the birth certificate of the child. (Art. 164, par. 2, FC.)

⮲ The law favors legitimacy over illegitimacy. – There is perhaps no

presumption of the law more firmly established and founded on sounder
morality and more convincing reason than the presumption that children born
in wedlock are legitimate. This presumption, however, may be availed of only
upon convincing proof of the factual basis therefor, i.e., that the child’s
parents are legally married, and that his or her conception or birth occurs
during the subsistence of that marriage; otherwise, the presumption of law
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that a child is legitimate does not arise. ( Read the case of Concepcion vs.
CA and Almonte, G.R. No. 123450, 31 August 2005, 468 SCRA 438.)

⮲ How to rebut presumption; grounds to impugn legitimacy – The

presumption of legitimacy of the child, however, is not conclusive and,
consequently, may be overthrown by evidence to the contrary. The grounds
for impugning the legitimacy of a child conceived or born during a valid
marriage are enumerated in Article 166 of the Family Code, to wit:

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.

⮲ Proper party to impugn legitimacy – As a rule, impugning the

legitimacy of the child is a strictly persona right of the husband for the simple
reason that he is the one directly confronted with the scandal and ridicule
which the infidelity of the wife produces, 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. It is only in exceptional cases that his heirs are
allowed to contest such legitimacy. (Arts. 170 & 171, FC.)

⮲ Mother not allowed to declare own child illegitimate – The law

provides the presumption that the child shall be considered legitimate
although the mother may have declared against its legitimacy, or may have
been sentenced as an adulteress. (Art. 167, FC.)

❺ Illegitimate children – Generally, illegitimate children are those

conceived and born outside a valid marriage. (Art. 165, FC.) The connective
“and” between the terms “conceived” and “born” gives rise to the basic
distinction between an illegitimate child, on the one hand, and a legitimate
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child who is “conceived or born” during the marriage of the parents, on the
other hand.

❻ Accepted proof of filiation. – The filiation of legitimate and

illegitimate children is established by any of the following:
(a) The record of birth appearing in the civil register or a final judgment; or
(b) 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, legitimate or illegitimate
filiation shall be proved by:
(a) The open and continuous possession of the status of a legitimate child;
or
(b) Any other means allowed by the Rules of Court and special laws.
(Arts. 172 &173, FC.)

❼ Legitimated children. –

⮲ Concept of legitimation – Legitimation is a right granted by law to

a child conceived and born outside of wedlock of parents who, at the time of
the conception of said child, were not disqualified by any impediment to marry
each other. The process of legitimation takes place automatically by the
subsequent valid marriage of the parents and, as a result of which, such
illegitimate child becomes a legitimate child of the spouses.
⮚ If the only reason for the disqualification of the parents to
marry each other, at the time their illegitimate child is conceived, is because
either or both of them are below 18 years of age, the child begotten by them
may nevertheless be legitimated. (Arts. 177 & 178, FC.)

⮲ Effects of legitimation; retroactive – Prior to the marriage of the

parents of the child, the child’s status is that of an illegitimate child since he or
she was born outside of a valid marriage. Upon the marriage of the child’s
parents, the child is automatically raised to the status of legitimacy, without
need of any additional act on the part of either the child or of the parents. A
legitimated child is to be considered as a legitimate child of the spouses from
the time of the child’s birth, and not only from the time of the marriage of the
parents, since the effects of legitimation retroacts to the time of the child’s
birth.

ADOPTION

❶ Adoption defined. – Adoption has been defined as “a juridical act

which creates between two (2) persons a relationship similar to that which
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results from legitimate paternity and filiation.” It is the process of making a

child, whether related or not to the adopter, possess in general, the rights
accorded to a legitimate child.

❷ Adoption is a juridical act. – Adoption is essentially a juridical act.

As such, only an adoption made through the court, or in pursuance with the
procedure laid down under the law is valid in this jurisdiction. To establish the
relation, the statutory requirements must be strictly carried out; otherwise, the
adoption is an absolute nullity. Hence, in the following cases, there cannot be
a valid adoption of the child as to grant it the rights accorded to a legitimate
child of the adopters:
(a) A written agreement for the adoption of the child between the biological
parents and the adoptive parents cannot have the effect of adoption.
(b) A child who is simply treated as a child of a certain couple, although
not related to them by blood, does not enjoy the same rights accorded to
legitimate children, in the absence of a judicial decree of adoption.
(c) The mere registration of a child in his or her birth certificate as the child
of the supposed parents is not a valid adoption and does not confer upon the
child the status of an adoptee and the legal rights of such child.
❸ Who may adopt. – Under Section 7 of Republic Act No. 8552
(otherwise known as the Domestic Adoption Act of 1998), the following may
adopt:

(a) Any Filipino of legal age, in possession of full civil capacity and legal
rights, of good moral character, has not been convicted of any crime involving
moral turpitude, emotional and psychologically capable of caring for children,
at least 16 years older than the adoptee, and who is in a position to support
and care for his children in keeping with the means of the family;
(b) Any alien possessing the same qualifications as above stated so long
as his country has diplomatic relations with the Republic of the Philippines,
and he has been living in the country for at least three (3) continuous years
prior to the filing of the application for adoption and shall maintain such
residence until an adoption decree is entered. Moreover, said alien should be
certified by his diplomatic office as having legal capacity to adopt, and that his
government allows such adoptee to enter his country as his adopted child; or
(c) The guardian of the child, upon termination of the guardianship, and
after satisfaction of his financial accountabilities.

❹ Who may be adopted. – Under Section 8 of Republic Act No. 8552

(otherwise known as the Domestic Adoption Act of 1998), the following may
be adopted:
(a) Any person below eighteen (18) years of age who has been
administratively or judicially declared available for adoption;
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(b) The legitimate son or daughter of one spouse, by the other spouse;
(c) An illegitimate son or daughter, by a qualified adopter, to improve
his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter as his own child since
minority;
(e) A child whose adoption has been previously rescinded;
(f) A child whose biological or adoptive parent has died. It should be
noted that no proceedings should be initiated within six (6) months from the
time of death of said parent.

❺ RA 8043. – Republic Act No. 8043, otherwise known as “The

Inter-Country Adoption Act of 1995” provides for the process of adopting a
Filipino child by a foreigner or a Filipino citizen residing abroad. This is in
accord with the policy of the State to provide every neglected and abandoned
child with a family that will provide such child with love and care as well as
opportunities for growth and development.

SUPPORT

❶ Legal support defined. – Support comprises everything

indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the
family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some
profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or to and
from place of work. (Art. 194, FC.)

❷ Persons obliged. – The following are obliged to support each other

to the whole extent set forth in the preceding article:
(a) The spouses;
(b) Legitimate ascendants and descendants;
(c) Parents and their legitimate children and the legitimate and illegitimate
children of the latter;
(d) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(e) Legitimate brothers and sisters, whether of the full or half-blood. (Art.
195, FC.)
⮲ Brothers and sisters not legitimately related, whether of the full or
half-blood, are likewise bound to support each other, except only when the
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need for support of the brother or sister, being of age, is due to a cause
imputable to the claimant’s fault or negligence. (Art. 196, FC.)

❸ Order of liability for support. – Whenever two or more persons are

obliged to give support, the liability shall devolve upon the following persons
in the order herein provided:
(a) The spouse;
(b) The descendants in the nearest degree;
(c) The ascendants in the nearest degree; and
(d) The brothers and sisters. (Art. 199, FC.)
⮲ In demanding payment of the support, the person in need cannot
demand from all of them at the same time. He has to observe the order
provided in this Article. Thus, where there is no showing that the father is
without means to support his son, the paternal grandmother cannot be made
to pay for legal support to her grandson unless she is willing to provide for it.

❹ When demandable. – The obligation to give support is demandable

from the time the person who has a right to receive the same needs it for
maintenance, but it shall not be paid except from the date of judicial or
extra-judicial demand. (Art. 203, par. 1, FC.)
❺ Manner of payment. –
⮲ Payment of legal support shall be made within the first five days
of each corresponding month. (Art. 203, par. 3, FC.)
⮲ The person obliged to give support shall have the option to fulfill
the obligation either: (1) by paying the allowance fixed, or (2) by receiving and
maintaining in the family dwelling the person who has a right to receive
support. The latter alternative, however, cannot be availed of in case there is
a moral or legal obstacle thereto. (Art. 204, FC.)

PARENTAL AUTHORITY

❶ Nature of parental authority. – Parental authority and

responsibility, jointly exercised by the father and mother, necessarily includes
the caring for and rearing of their children for civic consciousness and
efficiency, and the development of their moral, mental and physical character
and well-being.
This is premised on the natural right and duty of parents over the
person and property of their children. As a consequence, parental authority
may not be renounced or transferred except in the cases authorized by law.
(Arts. 209 & 210, FC.)

❷ Exercise of parental authority. – 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. (Art. 211, FC.)
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⮲ Duties of children to parents – Article 211 of the Family Code

also commands the children to observe respect and reverence towards their
parents. This, they will observe even beyond emancipation. However, as
long as they are under parental authority, they have to obey their parents.

❸ Parental authority and the custody of children. – Custody of the

child is merely a consequence of parental authority. Thus, the person having
parental authority is entitled to the custody of the child.
⮲ Generally, since parental authority resides in both the father and
mother jointly, they are jointly entitled to the custody of their common children.
The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody and
company.
⮲ In case of separation of parents, parental authority shall be
exercised by the parent designated by the court. Such parent so designated
obtains custody of the children.
⮲ In the case of an illegitimate child, the law designates the mother
as having sole parental authority over the child; hence, the mother has sole
right to custody over the child.

❹ Substitute parental authority. – In default of parents or a judicially

appointed guardian, the following persons shall exercise substitute parental
authority over the child in the order indicated:
(a) The surviving grandparent;
(b) The oldest brother or sister, over twenty-one years of age, unless unfit
or disqualified; and
(c) The child’s actual custodian, over twenty-one years of age, unless unfit
or disqualified. (Art. 216, FC.)
⮲ Parental preference rule – Substitute parental authority may be
exercised only in case of the death, absence, or unsuitability of both parents.
Parents are thus first in rank in matters of parental authority. If only one
parent is dead, absent, or unsuitable, the other parent exercisess sole
parental authority.
⮲ Substitute parental authority over illegitimate children – Since the
father himself is not entitled to exercise parental authority over an illegitimate
child, neither may the paternal grandparents be entitled to exercise substitute
parental authority. Hence, in the event that both the mother and the father of
an illegitimate child dies during the latter’s minority, and the child is survived
by his grandparents on both the maternal and paternal sides, only the
grandparents on the maternal side shall be entitled to exercise substitute
parental authority, if suitable.

❺ Special parental authority or loco parentis – The following persons

or entities shall have special parental authority and responsibility over minor
children under their “supervision, instruction or custody:”
(a) The school;
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(b) The school’s administrators and teachers; or

(c) The individual, entity or institution engaged in child care.
Note that their authority and responsibility shall apply to all “authorized
activities” whether inside or outside the premises of the school, entity or
institution. (Art. 219, FC.)

⮲ Solidary liability – The liability of those exercising special parental

authority and their administrators and the teachers involved are primary and
solidary.
⮲ Parents’ liability – The liability of the parents and the guardians
and those exercising substitute parental authority is subsidiary, i.e., they are
liable to pay the amount of damages only upon the insolvency of those who
are primarily liable.

EMANCIPATION AND AGE OF MAJORITY

⮲ Emancipation takes place by the attainment of majority. Unless

otherwise provided, majority commences at the age of eighteen years. (Art.
234, NCC.)

FUNERAL ARRANGEMENTS

⮲ The right and duty to make funeral arrangements is given to those

who during the lifetime of the deceased are obliged to give him support in
accordance with the order established for support under Article 199 of the
Family Code, to wit:
(a) The spouse;
(b) The descendant in the nearest degree;
(c) The ascendant in the nearest degree; and
(d) The brothers and sisters.
⮚ In case of descendants of the same degree, or of brothers ad
sisters, the oldest shall be preferred. In case of ascendants, the paternal
shall have a better right. (Art. 305, NCC.)
⮚ The term “spouse,” although not being preceded by any
qualification, refers to the legal husband or wife as common law marriages
are not recognized in this jurisdiction.

USE OF SURNAMES

❶ Legitimate and legitimated children shall principally use the

surname of the father.
❷ An adopted child shall bear the surname of the adopter.
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❸ Illegitimate children are required to use the surname of their mother,

except that in the case of voluntary recognition by the putative father, they
may use the latter’s surname. (Art. 176 of the Family Code, as amended by
Republic Act No. 9255.)
❹ A married woman may use:
(a) Her maiden first name and surname and add her husband’s surname,
or
(b) Her maiden first name and her husband’s surname, or
(c) Her husband’s full name, but prefixing a word indicating that she is his
wife, such as “Mrs.”

* * * END * * *

HAPPY READING & LEARNING! 

SOURCES of NOTES:

The discussions outlined in this module have been

collectively lifted from the cases cited and commentaries
made by the authors in the references cited below:

1. Virgilio P. Alconera. Law, Persons and Family Relations (Quezon City:

Central Book Supply, Inc., 2010).
2. Rodelio T. Dascil. Threshold to the Legal Profession: An Introduction
to Law (Manila: Rex Book Store, 2013).
3. Virgilio B. Gesmundo. Jurisprudence and Comments on Persons and
Family Relations (Manila: Rex Book Store, 2014).
4. Elmer T. Rabuya. The Law on Persons and Family Relations (Manila:
Rex Book Store, Inc., 2016).
5. Rolando A. Suarez. Introduction to Law (Manila: Rex Book Store,
Inc., 2017).

We all have dreams.

But in order to make dreams come into reality,
it takes an awful lot of determination,
dedication, self-discipline, and effort.
Jesse Owens