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MODULE 6: Family Relations, Emancipation, Funerals, & Use of Surnames
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MODULE 6
FAMILY RELATIONS, EMANCIPATION,
and USE OF SURNAMES
WEEK 5 – 29 August 2019

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;
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(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. (Article 15, Sec. 1 1987 Constitution)

⮲ “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.

ARTICLE 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
same case must be dismissed.

⮲ “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 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.)
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⮲ 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.)

ARTICLE 152. The family home, constituted jointly by

the husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family
reside, and the land on which it is situated. (223a)

⮲ 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.)
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ARTICLE 156. The family home must be part of the

properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse
with the latter’s consent. It may also be constituted by an
unmarried head of a family on his or her own property.

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

(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;
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(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.
Filiation through judgement of adoption is a legal fiction
between a parent or parents and a child that was created through
legitimate filiation
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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 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
marries 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.
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(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/marriage 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 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:
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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 personal 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.)
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❺Illegitimate 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 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
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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 a relationship between two (2) persons similar to that
which 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
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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:

Adoption is only valid in pursuance with the procedure provided

by the law or made through the courts. To establish the relation, the legal
requirements must be strictly carried out otherwise, it would be considered
null and void. Additionally, the cases that constitutes an adoption to be
invalid are the following:

(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 RA 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;
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(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 RA 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;
(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.
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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
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(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 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 one of the
persons mentioned 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.)
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⮲ 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.)
⮲ 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.
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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 exercises 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
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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;
(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, as amended by R.A. 6809)
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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
and 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.
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
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(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).
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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