Module 4 Notes

THE FAMILY UNDER THE FAMILY CODE Rules governing family relations
THE FAMILY AS AN INSTITUTION Family relations are governed by law. No custom,
Being the foundation of the nation, it is a basic social practice or agreement destructive of the family shall be
institution which public policy cherishes and protects. (FC, recognized or given effect (FC, Art. 149).
Art. 149).
NOTE: Even if not all forms of extra-marital relations
Family relations include: are punishable under penal law, the sanctity of marriage is
1. Between husband and wife; constitutionally recognized and likewise affirmed by our
2. Between parents and children; statutes as a special contract of permanent union.
3. Among other ascendants and descendants;
4. Among brothers and sisters, whether of the full or Accordingly, the Court has had little qualms with
half-blood (FC, Art. 150). penalizing judicial employees for their dalliances with married
persons or for their own betrayals of the
A suit between a brother-in-law and a sister-in-law is not marital vow of fidelity (Concerned Employee v. Glenda
within the coverage of the law, hence, the failure of the Mayor, A.M. No. P- 02-1564, November 23, 2004).
plaintiff to allege earnest efforts to affect a compromise is not
necessary. The relationship is based on consanguinity, except
that of the husband and wife (Gayon v. Gayon, G.R. No. L-
28394, November 26, 1970). The enumeration of brothers and Requisites before a suit between members of the
sisters as members of the same family does not comprehend same family may prosper
brothers- or sisters in- 1. Earnest efforts toward a compromise have been
law (Guerero v. RTC, G.R. No. 109068, January 10, made;
1994). 2. Such efforts failed;
3. The fact that earnest efforts toward a
Rules to remember: compromise have been made but the same have
1. Family relations exists even if they are not living failed appears in the verified complaint or petition
together (FC, Art. 151).
2. Illegitimate children are not included in the
family relations under this Article because they This rule shall not apply to cases which may not be
have their own families. subject of compromise under the Art. 2035 of the
3. Adopted children are included. (Minutes of New Civil Code.
Committee Meeting of August 24, 1985)
Q: Jose alleged that he and his family have been
 Module 4 Notes

occupying two (2) parcels of land, which was then

offered to sell to Jose the subject lands which Jose The following cannot be compromised:
accepted. However, Consuelo decided to "cancel" 1. Civil status of persons;
their agreement. In response, Jose expressed his 2. Validity of a marriage or legal separation;
disapproval to Consuelo's plan and demanded 3. Any ground for legal separation;
that respondents proceed with the sale, which 4. Future support;
the latter ignored. Upon learning of such sale, 5. Jurisdiction of courts; and
Jose sent a demand letter to Rene asserting his 6. Future legitime (NCC, Art. 2035).
right to the subject lands. As his demands went
unheeded, Jose brought the matter to the NOTE: A sister-in-law or a brother-in-law is not covered by
barangay upon for conciliation proceedings these two provisions. Being an exception to the
between him and Rene. When it reached the CA general rule, Art. 150 of the Family Code must be strictly
such Court moto proprio dismissed the case on construed (Gayon v. Gayon, G.R. No. L-28394, November 26,
the ground that they failed to apply article 151. 1970).
Can the CA motu proprio dismiss such case? THE FAMILY HOME
It is the dwelling house where the husband and wife and their
A: YES, Non-compliance with the earnest effort family reside, and the land on which it is situated. It is
requirement under Article 151 of the Family Code is constituted jointly by the husband and the wife or by an
not a jurisdictional defect which would authorize the unmarried head of a family (FC, Art. 152).
courts to dismiss suits filed before them motu
proprio. Rather, it merely partakes of a condition Constitution of Family Home (FH)
precedent such that the non-compliance therewith The FH is deemed constituted on a house and lot from the time
constitutes a ground for dismissal of a suit should the it is occupied as a family residence, (FC Art.
same be invoked by the opposing party at the earliest 153).
opportunity, as in a motion to dismiss or in the answer.
Otherwise, such ground is deemed waived. If the respondents Guidelines in the constitution of the Family Home
as parties-defendants could not, and did not, after filing their 1. FH is deemed constituted from the time of actual
answer-to-petitioner’s complainant, invoke the objection of occupation as a family residence;
absence of the required allegation on earnest efforts at a 2. Only 1 FH may be constituted;
compromise, the appellate court unquestionably did not have 3. Must be owned by the person constituting it;
any authority or basis to motu propio order the dismissal of 4. Must be permanent;
petitioner’s complaint (Moreno vs. Kahn, G.R. No. 217744, 5. Same rule applies to both valid and voidable
July 30, 2018). marriages and even to common law spouses; (FC,
 Module 4 Notes

Arts. 147 and 148) 156)

6. It continues despite death of one, both spouses, 1. They must be among the relationships enumerated
or an unmarried head of the family for 10 years in Art. 154 of the Family Code;
or as long as there is a minor beneficiary (FC, Art 2. They live in the FH; and
159). 3. They are dependent for legal support upon the
head of the family.
The heirs cannot partition the same unless the court
finds compelling reasons therefor. This rule shall apply Q: On March 30, 2000, Mariano died intestate and
regardless of whoever owns the property or constituted the FH was survived by his wife, Leonora and children,
(FC, Art 159). Danilo and Carlito. One of the properties he left was
a piece of land in Alabang where he built his
The FH must be part of the properties of the absolute residential house. After his burial, Leonora and
community or the conjugal partnership or the exclusive Mariano’s children extra-judicially settled his
properties of either spouse, with the latter’s consent. It may estate. Thereafter, Leonora and Danilo advised
also be constituted by an unmarried head of a family on his or Carlito of their intention to partition the property.
her own property (FC, Art 156). Carlito opposed invoking Art. 159 of the Family
Code. Carlito alleged that since his minor child
NOTE: Property that is subject of a conditional sale on Lucas still resides in the premises, the family home
instalments where ownership is reserved by the vendor to continues until the minor beneficiary becomes of
guarantee payment of the purchase price may be constituted as age. Is the contention of Carlito tenable? (2014 Bar)
a FH.
A: NO. To qualify as beneficiary of the FH the person
Beneficiaries of a Family Home (FC, Art. 154) must be among those mentioned under Art. 154 of the Family
1. Husband and wife, or Code, he/she must be actually living in the FH and must be
2. Unmarried head of the family, dependent for legal support upon the head of the family
3. Parents (may include parents-in-law), (Patricio v. Darion, G.R. No. 170829, November 20, 2006).
4. Ascendants,
5. Descendants While Lucas satisfies the first and second requisites, he cannot,
6. Brothers and sisters (legitimate or illegitimate) however, directly claim legal support from his grandmother,
living in the FH and dependent on the head of Leonora because the person primarily obliged to give him
the family for support. support is his father Carlito. Thus, the partition may be
successfully
Requisites to be considered as beneficiary (FC, Art
 Module 4 Notes

claimed by Leonora and Danilo. Occupancy of the FH either From the time of its constitution and so long as any of its
by the owner thereof or by “any of its beneficiaries reside therein, the FH continues to be such and is
beneficiaries” must be actual. That which is “actual” is exempt from execution, forced sale or attachment (FC, Art.
something real, or actually existing, as opposed to 153).
something merely possible, or to something which is
presumptive and constructive. Actual occupancy, However, the rule is not absolute. Art. 155 of the Family Code
however, need not be by the owner of the house. Rather, the provides the circumstances wherein the FH will not be exempt
property may be occupied by the “beneficiaries” enumerated from execution, forced sale of attachment, to wit:
by Art. 154 of the Family Code (Manacop v.
CA, G.R. No. 97898, August 11, 1997). XPN: Under Art. 155 of the Family Code:
1. Debts due to laborers, mechanics, architects,
NOTE: This enumeration may include the in-laws where the builders, material men and others who rendered
FH is constituted jointly by the husband and wife. But the law service or furnished materials for the
definitely excludes maids and overseers. constitution of the building;
2. Non-payment of Taxes;
3. Debts incurred Prior to its constitution;
4. Debts secured by Mortgages on the premises
before or after such constitution.
Effect of death of one or both spouses or of the
unmarried head of the family upon the family home NOTE: Exemption is limited to the value allowed in the
The FH shall continue despite the death of one or both spouses Family Code.
or of the unmarried head of the family for a period of 10 years
or for as long as there is a minor beneficiary and the heirs Rule for the family home to be exempted from
cannot partition the same unless the court finds compelling execution
reasons therefor. This rule shall apply regardless of whoever 1. If the FH was constructed before the effectivity
owns the property or constituted the FH (FC, Art. 159). (2010 of the FC, then it must have been constituted
BAR) either judicially or extra-judicially as provided
under Arts. 225, 229-231 and 233 of the NCC.
Exemption of Family Home from execution, forced Judicial constitution of the FH requires the filing of
sale or attachment a verified petition before the courts and the
registration of the court’s order with the Registry
GR: FH is exempt from execution, forced sale or of Deeds of the area where the property is located.
attachment. Meanwhile, extrajudicial constitution is governed
 Module 4 Notes

by Arts. 240 to 242 of the New Civil Code and The FH’s exemption from execution must be set up and proved
involves the execution of a public instrument to the Sheriff before the sale of the property at public auction.
which must also be registered with the Registry of It should be asserted that the property is a FH and that it is
Property. exempted from execution at the time it was levied or within a
reasonable time thereafter. It is not sufficient that the person
2. For FH constructed after the effectivity of the claiming exemption merely alleges that such property is a FH.
FC, there is no need to constitute extra- judicially Failure to do so will estop one from later claiming the said
or judicially, and the exemption is effective from exemption
the time it was constituted and lasts as long as any
of its beneficiaries actually resides therein.
Moreover, the FH should belong to the absolute Requisites for the creditor to avail of the right to
community or conjugal partnership, or if execute (FC, Art 160)
exclusively by one spouse, its constitution must 1. He must be a judgment creditor;
have been with consent of the other, and its value 2. His claim must not be among those excepted
must not exceed certain amounts depending upon under Art. 155;
the area where it is located. Further, the debts 3. He has reasonable grounds to believe that the FH
incurred for which the exemption does not apply is worth more than the maximum amount fixed in
as provided under Art. 155 for which the FH is Art. 157
made answerable must have been incurred after
the effectivity of the Family Code. Procedure in exercising the right to execute
1. Creditor must file a motion in the court
3. And in both cases, whether under the Civil Code proceeding where he obtained a favorable
or the Family Code, it is not sufficient that the judgment for a writ of execution against the FH;
person claiming exemption merely alleges that 2. There will be a hearing on the motion where the
such property is a FH. This claim for exemption creditor must prove that the actual value of the
must be set up and proved (Juanita Trinidad FH exceeds the maximum amount fixed by the
Ramos, et al. v. Danilo Pangilinan et al. G.R. No. Family Code, either at the time of its constitution
185920, July 20, 2010). or as a result of improvements introduced after
its constitution;
Exemption of Family Home must first be set up and 3. If the creditor proves that the actual value
proved exceeds the maximum amount, the court will
order its sale in execution;
4. If the FH is sold for more than the value allowed,
 Module 4 Notes

the proceeds shall be applied as follows: Here, the complaint against Hinahon was instituted on June 17,
a. The obligations enumerated in Art. 155 of 1986, to seek redress for damages suffered by them due to acts
the Family Code must be paid and omissions committed by her as early as 1977. This means
b. The judgment in favor of the creditor will that Hinahon’s liability arose long before the levied property
be paid, plus all the costs of execution was constituted as FH by operation of law in August 1988. It is
The excess, if any, shall be delivered to the judgment debtor thus clear that the liability incurred by Hinahon falls squarely
(FC, Art. 160). under one of the instances when a FH may be the subject of
execution, forced sale, or attachment to answer for
NOTE: The actual value of the FH shall not exceed, at the debts incurred prior to the constitution of the FH
time of its constitution, the amount of P300,000 in urban areas, (Gomez-Salcedo, et al. v. Sta. Ines, et al., G.R. No. 132537,
and P200,000 in rural areas, or such amounts as may hereafter October 14, 2005).
be fixed by law (FC, Art. 157).
Q : Has the residential house and lot of Cesario
Q: A complaint for damages was filed against Montana which he and his family built in 1960 but
Hinahon in 1986 when she incurred liabilities as which was not constituted as a family home,
early as 1977, which action prospered in 1989. The whether judicially or extrajudicially, under the NCC
house and lot that she owned was levied upon and been constituted as a family home by operation of
sold at auction. She assails the levy and sale on the law under Art. 153 of the FC, and therefore, exempt
ground that it was her family home and therefore from execution from a money judgement where the
exempt from execution. Decide. debt or liability was incurred before the effectivity
of the FC?
A: IT IS NOT EXEMPT. Under Art. 155 of the Family
Code, the FH shall be exempt from execution, forced sale, or A : NO. Under Art. 162 of the Family Code, it is provided that
attachment except for, among other things, debts incurred prior “the provisions of this Chapter shall also govern existing
to the constitution of the FH. The house and lot were not family residences insofar as said provisions are applicable.” It
constituted as a FH, whether judicially or extra-judicially, at does not mean that Arts. 152 and 153 of the Family Code have
the time that the debtor incurred her debts. Under prevailing a retroactive effect such that all existing family residences are
jurisprudence, it is deemed constituted as such by operation of deemed to have been constituted as a FH at the time of their
law only upon the effectivity of the Family Code on August 3, occupation prior
1988, thus, the debts were incurred before the constitution of to the effectivity of the FX and are exempt from
the FH (Gomez-Salcedo, et al. v. Sta. Ines, execution for the payment of obligations before the
et al., G.R. No. 132537, October 14, 2005). effectivity of the Family Code. Art. 162 simply means
that all existing family residences at the time of the
 Module 4 Notes

effectivity of the Family Code is considered FH and are

prospectively entitled to the benefits accorded to a family home
under the Family Code (Manacop v. CA, 277 RIGHTS AND OBLIGATIONS BETWEEN
SCRA 64, August 11, 1997). HUSBAND AND WIFE
ESSENTIAL OBLIGATIONS
NOTE: The Family Code does not have a retroactive Rights and obligations of the spouses (2010 Bar)
effect. Thus, prior to August 5, 1988, the procedure
mandated by the Old Civil Code had to be followed for a 1. Essential marital obligations (FC, Art. 68):
Family Home to be constituted as such. There being no proof a. Live together which includes consortium
that the subject property was judicially or extrajudicially (cohabitation) and copulation (sexual
constituted as a family home, it follows that petitioner cannot intercourse),
avail of the law’s protective mantle. (Modequillo v. Breva, b. Observe mutual love, respect, fidelity, and
G.R. No. 86355, May 31, 1990) c. Render mutual help and support

Requisites in the sale, alienation, donation, assignment NOTE: It is true that the Family Code, obligates the spouses to
or encumbrance of the FH love one another but this rule sanctions affection and sexual
The following must give their written consent: intimacy, as expressions of love, that are both spontaneous and
1. The person who constituted the FH; mutual and not the kind which is unilaterally exacted by force
2. The spouse of the person who constituted the FH; or coercion. Further, the delicate and reverent nature of sexual
3. Majority of the beneficiaries of legal age. intimacy between a husband and wife excludes cruelty and
coercion. When sexual intimacy it is egoistically utilized to
NOTE: In case of conflict, the court shall decide. despoil marital union in order to advance a felonious urge for
coitus by force, violence or intimidation, the Court will step in
Limitations on Family Home to protect its lofty purpose, vindicate justice and protect our
1. Each family can have only one FH. After one FH laws and State policies. Besides, a husband who feels
has been constituted, no other FH can be aggrieved by his indifferent or uninterested wife's absolute
established without first dissolving the existing refusal to engage in sexual intimacy may legally seek the
one. court's intervention to declare her psychologically
2. FH can be constituted only on the dwelling place, incapacitated to fulfill an essential marital obligation. But he
and therefore, in the locality where the family has cannot and should not demand sexual intimacy from her
its domicile. coercively or violently (People v. Jumawan, G.R. No.
3. The value of the FH must not exceed the limit 187495, April 21, 2014).
fixed by law (Tolentino, 2013).
 Module 4 Notes

Therefore:
a. The right to sexual intercourse involves 6. Either spouse may practice any legitimate
normal intercourse. The wife may refuse to profession/business, even without the consent of the
have sexual intercourse with the husband if other.
he resorts to abnormal or perverse practices.
NOTE: The other spouse may object on valid, serious
b. The wife can also refuse to have sexual and moral grounds. In case of disagreement, the court shall
intercourse with the husband if she is ill, if it decide whether:
would endanger her health, or if he is a. Objection is proper; and
suffering from some venereal disease.
b. Benefit has accrued to the family prior to the
c. If the husband forces the wife to have sexual objection or thereafter. If the benefit accrued
intercourse with him against her will, he prior to the objection, the resulting obligation
may be charged with coercion (Sempio-Diy, shall be enforced against the community
1995). property. If the benefit accrued thereafter, such
obligation shall be enforced against the separate
2. Fix the family domicile (FC, Art. 69); property of the spouse who has not obtained
consent. (FC, Art. 73 as amended by R.A.
NOTE: In case of disagreement the Court shall decide. 10572)

3. Jointly support the family (FC, Art. 70); The foregoing provisions shall not prejudice the rights of
a. Expenses shall be paid from the community creditors who acted in good faith.
property,
b. In the absence thereof from the income or fruits Other obligations of spouses
of their separate properties, 1. Exercise the duties and enjoy the rights of parents;
c. In the absence or insufficiency thereof from 2. Answer for civil liability arising from injuries caused
their separate properties by children below 18;
3. Exercise parental authority over children’s property
4. Manage the household (FC, Art. 71);
Essential marital obligations cannot be compelled by court
5. Not to neglect duties, or commit acts which tend to bring GR: Performance of essential marital obligation under
danger, dishonor, or injury to family (FC, Art.
72);
 Module 4 Notes

Art. 68 of the FC cannot be compelled by court because it will

be a violation of personal liberty. (Arroyo v. Arroyo, G.R. No.
L-17014, August 11, 1921)

XPN: Giving support.

Reasons when the Court may exempt one spouse

from living with the other
a. If one spouse should live abroad.
b. Other valid and compelling reasons.

NOTE: The Court shall not grant the exemption if it is

not compatible with the solidarity of the family.