[LEE, CHRISTIAN GERARD G.

]
[gerardlee21@yahoo.com]
MEMORANDUM

I.

Re:

Support, Exclusive Properties and Payments.

Date:

October 15, 2015

Facts

Butch Cruz is the father of the 7-month-old child of Kim Rosa.

Butch left Kim three months ago and she wants to demand
the return of certain items from her apartment, namely:
electric fan, mini refrigerator and her brothers pair of
slippers. Kim is asking butch a sum of twenty one thousand
pesos for her apartment rental fee that has accumulated for
three months. Also, Butch is trying to recover the pearl
earrings that he gave Kim during their anniversary that cost
twelve thousand pesos. After her separation to Mr. Butch Cruz,
Kim found out that he was already married. Kim also stated
that she and Mr. Cruz bought a car worth nine hundred
thousand pesos while the two of them are still living together.
Both of them have no agreement as to who will pay and owns
the car but nevertheless equally paid down payment and
shared with the monthly amortizations depending on how
much money the two of them could spare. The car is already
fully paid and is currently in Kims possession.
II.

Issues

A. Is Mr. Butch liable to provide support for Kims 7-month-old

child? Can Ms. Rosa demand seven thousand pesos for
support plus half of the expenses from childbirth from Mr.
Butch Cruz?
B. Can Ms. Rosa demand the return of her exclusive property
from Mr. Butch?
C. Can Ms. Rosa claim for half of the payment for 3 months of
rent Mr. Butch Cruz agreed to pay?
D. Can Mr. Butch Cruz regain possession of the twelve
thousand peso earrings he gave Ms. Rosa?

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MEMORANDUM

E. Can Ms. Rosa be entitled to claim ownership of the car

which is registered under Mr. Butch Cruz name?
F. Can Mr. Butch Cruz file a counter charge on Ms. Rosa?

II.

Resolution and Discussion

A. Yes, Mr. Butch Cruz is liable for the support of Ms. Kim Rosas

child. Since it was already established in the facts that he is the

childs father, he must provide for the sustenance of the child
that Ms. Rosa is bearing because it is already entitled for support
under The Child and Youth Welfare Code, or Presidential Decree
No. 603. Which provides that every parent has the duty for the
child of support. But what Ms. Kim Rosa needs to know is that
upon the birth of her child, it would be already regarded as
illegitimate since according to Article 165 of the civil code,
children conceived and born outside a valid marriage are
considered illegitimate, unless otherwise provided. 1 Even so, this
does not prejudice her or her conceived child because under the
law on support, the parents are obliged to render support to their
children and their grand children whether legitimately or
illegitimately related to their legitimate children, vice versa 2
provided by Article 195. Mr. Butch Cruz has the mandatory
obligation to give the support to his child with Ms. Kim Rosa.
What Ms. Rosa cant do is to specify an amount of compensation,
since the amount on support shall be in proportion to the
resources or means of the giver and to the necessities of the
recipient. 3
More over, applying the case of Quimiguing v. Icao 34 SCRA 132,
although the child is yet to be born, the law grants him already a
civil personalty for all the purpose favorable to it, provided in
Article 40 of the Civil Code of the Philippines. 4 The child
mentioned has a right to support from its parents. Therefore, Ms.
Rosa can demand support from Mr. Butch Cruz for the child that
she is bearing.
B. Yes, Ms. Rosa can demand for the return of the items, namely:

Electric Fan and Mini Refrigerator provided that she can prove
that it was not acquired through joint efforts with Mr. Butch Cruz
during the subsistence of their cohabitation. She should be able
to prove that she exclusively used her own fund in acquiring such
7

CIVIL CODE, art. 1149. 8 CIVIL CODE, art. 1318. 9 CIVIL

CODE, art. 1319. 10 CIVIL CODE, art. 1170. 11 FAMILY
CODE, art. 87.
12
CIVIL CODE, art. 525. 13 FAMILY CODE, art. 148. 14
Villanueva v. Court of Appeals 496 SCRA 135. 15 FAMILY
CODE, art. 148.

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MEMORANDUM

property. 5 Article 148 provides that property acquired by either

of the parties exclusively by his or her own fund belongs to such
party provided that there is a proof that he or she acquired it by
exclusive funds. 6 It shall also be noted that her action to demand
the return of such items must be brought within 5 years from the
time the right action accrues 7 as stated under Article 1149 of the
Civil Code of the Philippines. As for the slippers borrowed by Mr.
Cruz, It must be taken into account that Ms. Rosa do not have
any legal standing to demand the return of the item since her
brother is the owner and is the only one given the legal standing
to initiate the return of such item.
C. Yes, Ms. Rosa can demand the twenty one thousand pesos rental

payment according to Art. 1318 which states that there is a

contract so long as the three requisites are complied with,
namely: (1) Consent of the contracting parties, (2) Object certain
which is the subject matter of the contract and (3) Cause of the
obligation which is established. 8 There was a meeting of the
mind between two parties that they both agreed to share the
payment of the monthly rental fees. Failure on the part of Mr.
Butch Cruz to provide payment, which is his obligation to Ms.
Rosa, makes him liable for a breach of contract. 9 Article 1170
states that those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in any
manner contravene the tenor thereof, are liable for damages. Mr.
Butch Cruz has an obligation to pay a sum of twenty one
thousand pesos to Ms. Rosa for their monthly rental fees. 10
D. No, Mr. Butch Cruz cannot claim the pearl earrings given to Ms.

Rosa provided that she can prove that the earrings given is as a
moderate gift and is within the financial capacity of Mr. Cruz to
provide at the time of the donation. Article 87 of the Family Code
provides that every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage shall
be void, except moderate gifts, which the spouses may give each
other on the occasion of any family rejoicing. The prohibition
shall also apply to persons living together as husband and wife
without a valid marriage. 11 Also, the gift was accepted in good
faith not knowing that Mr. Butch Cruz was already married upon
the receipt of the earrings. Article 525 of the Civil Code of the
Philippines explicitly states that he is a deemed possessor in
good faith who is not aware that exists in his title or mode of
acquisition any flaw that invalidates it. 12
7

CIVIL CODE, art. 1149. 8 CIVIL CODE, art. 1318. 9 CIVIL

CODE, art. 1319. 10 CIVIL CODE, art. 1170. 11 FAMILY
CODE, art. 87.
12
CIVIL CODE, art. 525. 13 FAMILY CODE, art. 148. 14
Villanueva v. Court of Appeals 496 SCRA 135. 15 FAMILY
CODE, art. 148.

E. Yes, Ms. Rosa is also entitled in the car ownership. It is governed

by Article 148 which provides the rules of limited co-ownership. It states

that there must be sufficient proof that the both parties actually contributed
in the payment of the property.13 Failure to give proof of on the actual
contribution will render the presumption that there is no ownership
acquired through joint efforts 14 and the car may accrue to the absolute
community or the conjugal partnership existing in such valid marriage of
Mr. Butch Cruz and his wife. 15 The car is governed by the property regime
of limited co-ownership under said article because both of them equally
paid down payment and shared with monthly amortizations depending on
how much money they could acquire.
F. No, Mr. Butch Cruz does not have any legal standing to file a

counter charge on Ms. Rosa. The law grants such power only to
the offended spouse. 16 In the case provided, Mr. Butch Cruz
cohabited with Ms. Kim Rosa disregarding his civil status as a
married man, making him the offending party in this case. As for
Adultery, the case cannot prosper against Ms. Rosa since she
was acting under mistake of fact. To validly use mistake of fact as
a defense, the three requisites shall be satisfied, namely: (1) The
act done would have been lawful had the facts been as the
accused believed them to be. (2) The intention of the accused in
performing the act should be lawful. (3) The mistake must be
without fault or carelessness on the part of the accused. [ ]
Applying the requisites to the case provided, Ms. Rosas
cohabitation with Mr. Butch Cruz would have been legal if Mr.
Butch Cruz wasnt married at all. Mr. Butch Cruz concealed his
civil status to Ms. Rosa during the subsistence of their
cohabitation. Ms. Rosa did not intend to cohabit with a married
man for she did not know that he is already married. It is not in
her best intention to proceed to such relationship. Also, she is
also without fault since she was in good faith when they
contracted the adulterous relationship. It is not Ms. Rosa but Mr.
Butch Cruz who contracted the relationship in bad faith. He
should be liable for concubinage which is considered as a crime
against chastity and is punishable under the Revised Penal Code.
[]
III.

Recommended Action

Action for Child Support which would include expenses to be incurred during
child birth can be initiated by Kim Rosa to take care of the well being of their child. Action
to Recover Personal Property can also be initiated by Kim Rosa to recover properties

16

THE REVISED RULES ON CRIMINAL PROCEDURE,

rule.110.

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MEMORANDUM

burrowed by Butch Cruz. Action to demand compensation can also be initiated by Kim
Rosa to cover Butch Cruzs share in the rental payment during their cohabitation.
Revised Rules on Criminal Procedure, rule. 110.

CIVIL CODE, art. 1149. 8 CIVIL CODE, art. 1318. 9 CIVIL

CODE, art. 1319. 10 CIVIL CODE, art. 1170. 11 FAMILY
CODE, art. 87.
12
CIVIL CODE, art. 525. 13 FAMILY CODE, art. 148. 14
Villanueva v. Court of Appeals 496 SCRA 135. 15 FAMILY
CODE, art. 148.