Category Archives: Absolute community system of property

Should there be no distinction between legitimate and illegitimate children?

A news item from the Philippine Star reveals that House Bill 2355 was filed by Albay 2nd District Rep. Al Francis Bichara ‘which seeks to treat legitimate and illegitimate children as co-equal.‘The last portion of the report cites Congressman Bichara as saying that ‘aside from being marginalized as a result of this unwarranted label, children born out of marriage have limited rights and privileges especially with respect to successional rights.

Presently, the intestate share and legitime of an illegitimate child is one half of that of a legitimate child, and there is a barrier of intestate succession under Article 992 of the Civil Code between illegitimate children and the legitimate relatives of his/her parent.

In relation to the proposed amendment, it is best to remember that the distinction between legitimate and illegitimate children do not only deal with successional rights –  there are other distinctions found in Philippine law between legitimate and illegitimate children. Some of these distinctions include:

1. Which parent exercises parental authority over the child – default parental authority over an illegitimate child resides only in the mother under Article 176 of the Family Code as amended by RA 9255 even if the child is recognized by the father, while default parental authority over legitimate children reside in both parents under Article 211 of the Family Code.

2. Questions over whether the conjugal partnership or absolute community should be liable for the amount of support a parent gives to his/her illegitimate child – under Articles 94(9) and 122 3rd paragraph of the Family Code, conjugal partnership / absolute community property are only secondarily liable for the support of illegitimate children since primary responsibility falls on the parent’s exclusive property; on the other hand, support of legitimate children are a primary liability of the conjugal partnership of gains and absolute community of property under Articles 94(1) and Art 121(1) of the Family Code.

3. The use of the father’s name as surname – the legitimate child is obligated to use the father’s surname since Article 174 of the Family Code says that the legitimate child shall have the right ‘[t]o bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames‘ and Article 364 of the Civil Code uses the mandatory word ‘shall‘ in stating that ‘[l]egitimate and legitimated children shall principally use the surname of the father;‘ on the other hand, recognized illegitimate children under Article 176 of the Family Code as amended by RA 9255 may choose to use or not to use their father’s surname since Article 176 of the Family Code says that ‘illegitimate children may use the surname of their father if their filiation has been expressly recognized‘.

4. The prohibition of certain marriages – under Article 38(7) of the Family Code, a marriage between an adopted child and a legitimate child of the adopter is void as against public policy, while there is no such prohibition between a marriage between an adopted child and an illegitimate child of the adopter, Article 38(7) of the Family Code being an express statutory exception to the general rule is that “[t]he relationship created by the adoption is between only the adopting parents and the adopted child and does not extend to the blood relatives of either party”: see Sayson vs CA (G.R. Nos. 89224-25, 23 January 1992).

5. The requirement of consent of the adopter’s children to the adoption – under Section 9 of RA 8552 the adopter’s legitimate children ten years of age or over must give their consent to the adoption but the consent of the adopter’s illegitimate children of the same age is necessary only if the illegitimate children are ‘living with said adopter and the latter’s spouse‘.

6. The use of a middle name – An unrecognized illegitimate child may be unjustly discriminated in school because his or her name does not contain a middle name. In Wang vs Cebu City Civil Registrar (G.R. No. 159966.  March 30, 2005) it was stated that

[A]n illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s surname, and does not have a middle name.  The name of the unrecognized illegitimate child therefore identifies him as such.  It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child.

In the same case of Wang it was stated that ‘[t]he Family Code gives legitimate children the right to bear the surnames of the father and the mother.

7. Proof of filiation – A legitimate child is one who is born or conceived during the parent’s marriage; once operative facts are proven to give rise to the presumption of legitimacy (one operative fact being that the child is born or conceived of the wife during the marriage), then the presumption of legitimacy arises without need of any other proof. Illegitimacy requires either a voluntary recognition (under the first paragraph of Article 172 of the Family Code, it is a voluntary recognition found in a record of birth,  public document or a private handwritten instrument and signed by the parent concerned), or a compulsory recognition through a court judgment (requiring proof under the 2nd paragraph of Article 172 of the Family Code – ‘[t]he open and continuous possession of the status of a legitimate child’ and ‘[a]ny other means allowed by the Rules of Court and special laws’).


– Atty. Alex Andrew P. Icao


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Filed under Absolute community system of property, Conjugal partnership of gains, Consequence of filiation, Distinction between legitimate and illegitimate children, Paternity & Filiation, Property relations, Uncategorized, use of surname or middle name

Recent case creates ‘loophole’ in constitutional prohibition against aliens to own land

Can alien spouses skirt the constitutional prohibition against aliens to own land?

The recent case of Matthews vs Benjamin & Joselyn Taylor (GR 164584, 22 June 2009), in disregarding certain civil law principles on spouse property relations for the ostensible purpose of upholding the constitutional prohibition, may have inadvertently created a loophole, in situations where the land is titled in the name of a third person, by preventing the application of civil law principles aimed at clawing the land back into the spouses’ property regime.

The constitution contains an express prohibition for aliens to own lands of the public domain: s 7 Art XII 1987 Consti (‘Section 7.  Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.’). By interpretation, this prohibition has been extended to the ownership of private land: see eg, Muller vs Muller (G.R. No. 149615, August 29, 2006) & Krivenko vs Register of Deeds (79 Phil. 461 (1947)). The constitutional prohibition only applies to land, not improvements over land: Beumer vs Amores (GR 195670, December 3, 2012).

The property relations of the spouses is now governed by the system of absolute community, in the absence of any stipulation in a marriage settlement executed before the marriage. Normally, if the spouses are both Filipinos, all property that the spouses’ acquire during their marriage are considered absolute community property, with the exception of certain property enumerated under Article 92 of the Family Code, which the law considers as a spouse’s exclusive property. Normally, if the spouses are both Filipinos, even if land is acquired during the marriage using exclusive funds belonging to a spouse, the law considers the property acquired as absolute community property, due to the absence of a general right of replacement in the system of absolute community. A right of replacement (also known as as ‘acquisition by substitution’ [Amelia G. de Castro, 1952 Survey of Civil Law in the Philippines, PLJ Vol 28 No 2-01, p 159] or the ‘principle of substitution or exchange of values’ [Tolentino citing Bermudez vs Baltazar (C.A.) 59 O.G. 6459]), is generally unavailable in the system of absolute community, because Article 91 of the Family Code expressly states that ‘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’. Views however, have been expressed that a right of replacement exceptionally exists for certain exclusive property enumerated  under Article 91 (see eg, Article 91(3) which refers to ‘[p]roperty acquired before the marriage by either spouse who has legitimate descendants by a former marriage’) due to the need to maintain the exclusive character of these properties (or any property acquired in replacement of these properties) for reasons of public policy.

In the case of Matthews vs Benjamin & Joselyn Taylor (GR 164584, 22 June 2009), the Supreme Court said that the foreigner husband’s written consent to lease land (registered in the name of the wife, although funded by the husband’s money) was not required. Part of the Supreme Court’s reasoning was that consent was not required on the supposition that the land was absolute or conjugal property because

no declaration can be made that the subject property was part of the conjugal/community property of the spouses. In any event, he had and has no capacity or personality to question the subsequent lease of the Boracay property by his wife on the theory that in so doing, he was merely exercising the prerogative of a husband in respect of conjugal property.  To sustain such a theory would countenance indirect controversion of the constitutional prohibition.  If the property were to be declared conjugal, this would accord the alien husband a substantial interest and right over the land, as he would then have a decisive vote as to its transfer or disposition.  This is a right that the Constitution does not permit him to have’

The seeming disregard for certain civil law principles in the Matthews case such as the right of replacement, and the principle that all property acquired by husband or wife during marriage is absolute community property, creates little doctrinal repercussions in cases of acquisition by spouses of land where the ‘vendee’ is the Filipino spouse, because the principle of estoppel works against the foreigner spouse’s favor.

However, the tide may turn in the foreigner husband’s favor if the land is titled in the name of a third person.

If the funds come from the foreigner husband’s own exclusive property, then arguably the wife will have no cause of action to claw the land into the marriage and claim it as hers. First, the wife may not argue that she is entitled to a right of replacement arguing that all property acquired during the marriage is absolute community property irregardless of character of the fund source, because clawing the land back to the absolute community, just to lay the basis for the wife to claim that the land is her exclusive property by virtue of the constitutional prohibition is illogical. Second, the civil law right of replacement arguably seems to irrelevant when face to face with the constitutional prohibition against foreigners to own land (see Matthews vs Benjamin & Joselyn Taylor (GR 164584, 22 June 2009)).

If the funds come from the spouses’ absolute community, the problem becomes even more difficult. The right of replacement cannot be invoked, because if it were so invoked, the land acquired would have to be classified as absolute community property, an outcome that is not permitted by Matthews. It may be recalled that part of the reasoning why the land cannot be considered absolute community in Matthews is because the disposal or encumbrance of absolute community property requires the consent of both spouses, otherwise the transaction is void under the 2nd paragraph of Article 96 of the Family Code. Furthermore, an implied trust may not arise with respect to the wife’s one-half inchoate share in the funds (inchoate, because a vested right only arises upon dissolution of the absolute property regime), because to allow an implied trust to exist is to assume the fiction that the absolute community nature of the funds was dissolved (or ceased) upon acquisition of the property (a fiction that is prohibited under Article 134 of the Family Code, because any separation of property of spouses during the marriage ‘shall not take place except by judicial order’).

Moreover, the chances that the Matthews decision may be used by the foreigner spouse in his favor, is amplified when a property regime of separation of property is agreed to between the future spouses in a marriage settlement, and the titles of land acquired using the husband’s funds are not titled in the wife’s name, but rather in the names of third persons. While the anti-dummy law may apply, there are doctrinal hindrances that prevent the wife from getting any hold of the land.  Arguably, this shows that while the constitutional provision laudably preserves Filipino patrimony by preventing foreign ownership of land, the constitutional provision also discourages future spouses (where one future spouse is a foreigner or an alien) from adopting the default property absolute community property regime. Instead, the constitutional prohibition encourages future foreigner spouses to influence their future Filipino spouse to adopt a system of separation of property.


– Atty. Alex Andrew P. Icao

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Filed under Absolute community system of property, Conjugal partnership of gains, Constitutional prohibition of aliens to own land, Marriage, Property relations