TITLE VI.

PATERNITY AND FILIATION

1. Cesar was legally married to Delia and they have two children, Edgar and Francia. During the
subsistence of the marriage of Cesar and Delia, the latter cohabited with Gerry, who himself
was married to Hazel. Out of the cohabitation of Delia and Gerry, Ian was born on March 4,
2009. On December 1, 2012, Gerry died in a vehicular accident. Delia, on behalf of Ian, filed a
suit for partition against Hazel and her children alleging that Ian is entitled to share in the estate
of Gerry. Gerry’s name as father appears in Ian’s baptismal certificate and school report cards.
There were also pictures and videos showing Gerry together with Ian. Hazel contends that the
suit is barred by the death of Gerry.

a. May Ian prove his filiation with Gerry and be entitled to share in Gerry’s estate? Explain
fully.

SUGGESTED ANSWER: No. Ian is the legitimate child of the valid marriage between Cesar and
Delia. Children conceived and born during the marriage of the parents are legitimate. Legitimacy
is conferred by law and not by the parents of the child. In Concepcion vs Almonte, the Supreme
Court held that “the law and only the law determines who are legitimate or illegitimate children
for one’s legitimacy or illegitimacy cannot be compromised. It should be what the law says and
not what the parent says it is”. At the time Ian was born, there was a valid marriage between
Cesar and Delia. Moreover, under the Family Code, only the husband or the father, may impugn
the legitimacy of the child. (Articles 160 and 170, Family Code; Concepcion vs Almonte, G.R.
123450, Aug. 31, 2005).

b. Will your answer be the same had the first marriage of Cesar & Delia been terminated
by the death of Cesar one year prior to the birth of Ian? Explain fully.

SUGGESTED ANSWER: No, my answer will be different. Ian is considered the illegitimate child
of Gerry and Delia as there was physical impossibility for Cesar to be the father considering that
he died one year prior to the birth of Ian. However, Ian still cannot prove his filiation to Gerry
since he was using the secondary pieces of evidence included under Article 172 of the Family
Code and the putative father was already dead. Baptismal certificate, school report cards,
pictures and videos may prove open and continuous possession of the status of an illegitimate
child but the action to prove the child’s filiation must be brought during the lifetime of the alleged
parent. (Articles 172 and 175, Family Code; Liyao vs Liyao, G.R. 138961, March 7, 2002)

2. Peter and Raquel, both 16 years old, were so in love with each other that they had premarital
sex resulting to Raquel’s pregnancy. Raquel gave birth to Oscar when she was only 17 years
old. Peter and Raquel married each other on June 1, 2010 when they were both 18 years old.
May Oscar be legitimated due to the marriage of his parents, Peter & Raquel? (5%)

ANSWER:
Oscar may be legitimated under RA 9858. An Act Providing For The Legitimation Of Children
Born To Parents Below Marrying Age (approved Dec. 20, 2009). This law amended Articles 177
and 178 of the Family Code which now read:

Art.177. Children conceived & born outside of wedlock of parents who, at the time of conception
of the former, were not disqualified by any impediment to marry each other, or were so
disqualified only because either or both of them were below 18 years of age, may be
legitimated.

Art.178. Legitimation shall take place by a subsequent valid marriage between parents. The
annulment of a voidable marriage shall not affect the legitimation.
It must be noted that the only impediment existing at the time of conception of Oscar for his
parents to get married to each other was the fact that both of them were below the marrying age
of 18. Considering that Peter and Raquel got married to each other after attaining the age of 18,
Oscar may be legitimated to raise him to the level of a legitimate Child.

4. What is the effect of the declaration of a wife against the legitimacy of the child where the
child is conclusively presumed to be the legitimate child of the spouses?

ANSWER:
Art 167 of Family Code states that the child shall still be legitimate, although the more have
declared against his legitimacy. This law likewise applies to such instances where the mother
may have been sentenced as an adultress. Note: 167 only applies to situations where the wife
denies the paternity of the husband not when the child is alleged not to be the child of nature or
biological child of the couple.

5. Roderick and Faye were high school sweethearts. When R was 18 and F, 16 years old, they
started living together as husband and wife without the benefit of marriage. When F reached 18
years of age, her parents forcibly took her back and arranged her for her marriage to Brad.
Although F lived with B after the marriage, R continued to regularly visit F while B was away at
work. During their marriage, F gave birth to a baby girl, Laica, when F was 25 years old, B
discovered her continued liaison wt R and in one of their heated arguments, F shot B to death.
She lost no time in marrying her true love R, without a marriage license, claiming that they have
been continuously cohabiting for more than 5 years.
a. What is the flail status of Laica?
ANSWER:
Having been born during the marriage of F and B, she is presumed to be the legitimate
child of F and B. This presumption had become conclusive because the period of time to
impugn her filiation had already prescribed.
b. Can Laica bring an action to impugn her own status on the ground that based in DNA
results, R is her biological father?
ANSWER:
 No, she cannot impugn her own filiation. The law does not allow a child to impugn his or
her own filiation. In the case at bar, Laica’s legitimate filiation was accorded to her by
operation of law which may be impugned only by B, his heirs in the cases provided by
law within the prescriptive period.

6. a. Julie had a relationship with a married man who had legitimate children. A son was born
out of the illicit relationship in 1981. Although the putative father did not recognize the child in
his birth certificate, he nevertheless provided the child with all the support he needed and spent
time regularly with the child and his mother. When the man died in 2000, the child was already
18 years old so he filed a petition to be recognized as an illegitimate child of the putative father
and sought to be given a share in his putative father’s estate. The legitimate family opposed,
saying that under the FC his action cannot prosper because he did not bring the action for
recognition during the lifetime of his putative father. If you were the judge, how would you rule?

b. Wishing to keep the peace, the child during the pendency of the case decides to compromise
with his putative father’s family by abandoning his petition in exchange for what he would have
received as inheritance if he were recognized as an illegitimate child. As the judge, would you
approve such compromise?(2015 BAR)

ANSWER:

a. If I were the judge, I will not allow the action for recognition filed after the death of the putative
father. An illegitimate child who has not been recognized by the father in the record of birth, or in
a private handwritten instrument, or in a public document and may prove his filiation based on
open and continuous possession of the status of an illegitimate child but pursuant to Article 175,
he or she must file the action for recognition during the lifetime of the putative father. The
provision of Article 285 of the Civil Code allowing the child to file the action for recognition even
after the death of the father will not apply because in the case presented, the child was no
longer a minor at the time of death of the putative father.

b. NO, I will not approve the compromise agreement because filiation is a matter to be decided
by law. It is not for the parties to stipulate whether a person is a legitimate or illegitimate child of
another (De Jesus v. Estate of Dizon G.R. No. 142877, October 2, 2001). In all cases of
illegitimate children, their filiation must be duly proved (NCC, Art. 887).

xxx
Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.

The action must be brought in the same period specified in Art. 173 of the Family Code, except
when the action is based on the 2nd par. of Art.172 of the Family Code, in which case the action
may be brought during the lifetime of the alleged parent (FC, Art. 175).
xxx
7. Is it sufficient proof of filiation when it is the father who registers the birth certificate of his
illegitimate child?

ANSWER:

YES. The birth certificate of Anacleto appearing in the Register of Births of the Municipality of
Bacong, Negros Oriental (Exhibits 3, 3-A) showed that Nicolas had himself caused the
registration of the birth of Anacleto. The showing was by means of the name of Nicolas
appearing in the column "Remarks" in Page 53, Book 4, Register No. 214 of the Register of
Births. Based on the certification (Exhibit 3-B) issued by the Local Civil Registrar of the
Municipality of Bacong, Negros Oriental, the column in the Register of Births entitled "Remarks"
(Observaciones) was the space provided for the name of the informant of the live birth to be
registered. Considering that Nicolas, the putative father, had a direct hand in the preparation of
the birth certificate, reliance on the birth certificate of Anacleto as evidence of his paternity was
fully warranted. (Alejandra Arado Heirs v. Alcoran and Sunjanco, G. R. No. 163362, July 08,
2015) (BERSAMIN, J.).

8. Who may impugn the legitimation? (FC, Art. 182)

ANSWER:
Legitimation may be impugned only by those who are prejudiced in their rights, within 5 years
from the time their cause of action accrues, that is, from the death of the putative parent.

NOTE: The right referred to are successional rights. Hence, only those whose successional
rights are directly affected may impugn the legitimation that took place.

10. Rosanna, as surviving spouse, filed a claim for death benefits with the SSS upon the death
of her husband, Pablo. She indicated in her claim that the decedent is also survived by their
minor child, Lyn, who was born in 1991. The SSS granted her claim but this was withdrawn after
investigation, when a sister of the decedent informed the system that Pablo could not have sired
a child during his lifetime because he was infertile. However in Lyn’s birth certificate, Pablo
affixed his signature and he did not impugn Lyn’s legitimacy during his lifetime. Was the SSS
correct in withdrawing the death benefits?

ANSWER:
NO. Children conceived or born during the marriage of the parents are legitimate (FC, Art. 164).
This presumption becomes conclusive in the absence of proof that there is physical impossibility
of access under Art. 166 of the Family Code. Upon the expiration of the periods for impugning
legitimacy under Art. 170, and in the proper cases under Art. 171, of the Family Code, the action
to impugn would no longer be legally feasible and the status conferred by the presumption
becomes fixed and unassailable. In this case, there is no showing that Pablo, who has the right
to impugn the legitimacy of Lyn, challenged her status during his lifetime. There is adequate
evidence to show that the child was in fact his child, and this is the birth certificate where he
affixed his signature (SSS v. Aguas, et al., G.R. No. 165546, February 27, 2006).

11. In an action for partition of estate, the trial court dismissed it on the ground that the
respondent, on the basis of her birth certificate, was in fact the illegitimate child of the deceased
and therefore the latter's sole heir, to the exclusion of petitioners. However, trial court failed to
see that in said birth certificate, she was listed therein as “adopted.” Was the trial court correct in
dismissing the action for partition?

ANSWER:
NO. The trial court erred in relying upon the said birth certificate in pronouncing the filiation of
the respondent. However, since she was listed therein as “adopted”, she should therefore have
presented evidence of her adoption in view of the contents of her birth certificate. In this case,
there is no showing that she undertook such. A record of birth is merely prima facie evidence of
the facts contained therein. It is not conclusive evidence of the truthfulness of the statements
made there by the interested parties

(Rivera v. Heirs of Romualdo Villanueva, G.R. No. 141501, July 21, 2006).

12. In a complaint for partition and accounting with damages, Ma. Theresa alleged that she is
the illegitimate daughter of Vicente, and therefore entitled to a share in the estate left behind by
the latter. As proof, she presented her birth certificate which Vicente himself signed thereby
acknowledging that she is his daughter. Is the evidence presented by Ma.Theresa sufficient to
prove her claim that she is an illegitimate child of Vicente?

ANSWER:
YES. Ma. Theresa was able to establish that Vicente was in fact her father. The due recognition
of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any
authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further
court action is required (De Jesus v. Estate of Juan Dizon, G.R. No. 142877, October 2, 2001.
Any authentic writing is treated not just as a ground for compulsory recognition; it is in itself a
voluntary recognition that does not require a separate action for judicial approval (Eceta v.
Eceta, G.R. No. 157037, May 20, 2004).

13. Gerardo filed a complaint for bigamy against Ma. Theresa, alleging that she had a previous
subsisting marriage when she married him. The trial court nullified their marriage and declared
that the son, who was born during their marriage and was registered as their son, as illegitimate.
What is the status of the child?

ANSWER: The first marriage being found to be valid and subsisting, whereas that between
Gerardo and Ma. Theresa was void and non-existent; the child should be regarded as a
legitimate child out of the first marriage. This is so because the child's best interests should be
the primordial consideration in this case.

14. Gerardo and Ma. Theresa, however, admitted that the child was their son. Will this affect the
status of the child?

ANSWER:
NO. The admission of the parties that the child was their son was in the nature of a
compromise. The rule is that: the status and filiation of a child cannot be compromised. Art. 164
of the Family Code is clear that a child who is conceived or born during the marriage of his
parents is legitimate (Concepcion v. CA, G.R. No. 123450, August 31, 2005).

15. What is the effect of Ma. Theresa’s claim that the child is her illegitimate child with her
second husband, to the status of the child?

ANSWER:
NONE. This declaration – an avowal by the mother that her child is illegitimate – is the very
declaration that is proscribed by Art. 167 of the Family Code. This proscription is in consonance
with, among others, the intention of the law to lean towards the legitimacy of children
(Concepcion v. CA, G.R. No. 123450, August 31, 2005).

16. We In a petition for issuance of letters of administration, Cheri Bolatis alleged that she is the
sole legitimate daughter of decedent, Ramon and Van Bolatis. Phoebe, the decedent’s second
wife, opposed the petition and questioned the legitimate filiation of Cheri to the decedent,
asserting that Cheri’s birth certificate was not signed by Ramon and that she had not presented
the marriage contract between her alleged parents which would have supported her claim.

In said birth certificate, it was indicated that her birth was recorded as the legitimate child of
Ramon and Van Bolatis, and contains as well the word “married” to reflect the union between
the two. However, it was not signed by Ramon and Vanemon Bolatis. It was merely signed by
the attending physician, who certified to having attended to the birth of a child. Does the
presumption of legitimacy apply to Cherimon?

ANSWER:
NO. Since the birth certificate was not signed by Cher’s alleged parents but was merely signed
by the attending physician, such a certificate, although a public record of a private document is,
under Sec. 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its
execution, which is, the fact of birth of a child. A birth certificate, in order to be considered as
validating proof of paternity and as an instrument of recognition, must be signed by the father
and mother jointly, or by the mother alone if the father refuses. There having been no
convincing proof of respondent’s supposed legitimate relations with respect to the decedent, the
presumption of legitimacy under the law did not therefore arise in her favour (Angeles v.
Angeles-Maglaya, G.R. No. 153798, September 2, 2005).
17. On the basis of the physical presentation of the plaintiff-minor before it and the fact that the
alleged father had admitted having sexual intercourse with the child's mother, the trial court, in
an action to prove filiation with support, held that the plaintiff-minor is the child of the defendant
with the plaintiff-minor's mother. Was the trial court correct in holding such?

ANSWER:
NO. The birth certificate that was presented by the plaintiff-minor appears to have been
prepared without the knowledge or consent of the putative father. It is therefore not a competent
piece of evidence on paternity. The local civil registrar in this case has no authority to record the
paternity of an illegitimate child on the information of a third person. A baptismal certificate,
while considered a public document, can only serve as evidence of the administration of the
sacrament on the date specified therein but not the veracity of the entries with respect to the
child's paternity (Macadangdang v. CA, G.R. No. L-49542, September 12, 1980). Thus,
certificates issued by the local civil registrar and baptismal certificates are per se inadmissible in
evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence
to prove the same (Jison v. CA, G.R. No. 124853, February 24, 1998; Cabatania v. CA, G.R.
No. 124814, October 21, 2004).

NOTE: In this age of genetic profiling and DNA analysis, the extremely subjective test of
physical resemblance or similarity of features will not suffice as evidence to prove paternity and
filiation before courts of law. This only shows the very high standard of proof that a child must
present in order to establish filiation.

18. Ann Lopez, represented by her mother Araceli Lopez, filed a complaint for recognition and
support of filiation against Ben-Hur Nepomuceno. She assailed that she is the illegitimate
daughter of Nepomuceno submitting as evidence the handwritten note allegedly written and
signed by Nepomuceno. She also demanded for financial support along with filial recognition.
Nepomuceno denied the assertions reasoning out that he was compelled to execute the
handwritten note due to the threats of the National People’s Army. RTC ruled in favor of Ann. Is
the trial court correct?

ANSWER:
Ann’s demand for support is dependent on the determination of her filiation. However, she relies
only on the handwritten note executed by petitioner. The note does not contain any statement
whatsoever about her filiation to petitioner. It is, therefore, not within the ambit of Article 172(2)
vis-à-vis Art. 175 of the Family Code which admits as competent evidence of illegitimate filiation
an admission of filiation in a private handwritten instrument signed by the parent concerned.

The Court is mindful that the best interests of the child in cases involving paternity and filiation
should be advanced. It is, however, just as mindful of the disturbance that unfounded paternity
suits cause to the privacy and peace of the putative father’s legitimate family (Ben-Hur
Nepomuceno v. Archbencel Ann Lopez, represented by her mother Araceli Lopez G.R. No.
181258, March 18, 2010).

TITLE VII. ADOPTION

1.Spouses Esteban decided to raise their two nieces, Faith and Hope, both minors as their own
children after their parents died in a vehicular accident. Ten years after, Esteban died. Maria
later on married her boss Daniel, a British National who had been living in the Philippines for 2
years. With the permission of Daniel, Maria filed a petition for the adoption of Faith and Hope.
She did not include Daniel as her co-petitioner because for Maria, it was her former husband
Esteban who has raised the kids. If you are the judge, how will you resolve the petition? (2014
BAR)

ANSWER:
I will dismiss the petition. The husband and wife must jointly adopt and there are only three
recognized exceptions to the joint adoption: 1) one spouse seeks to adopt the legitimate child of
the other; 2) if one spouse seeks to adopt his or her own illegitimate child; 3) if the spouses are
legally separated. The case of Maria and Daniel does not fall under any of the exceptions,
accordingly the petition by the wife alone should be dismissed.

2. Spouses Primo and Monina Lim, childless, were entrusted with the custody of two minor
children, the parents of whom were unknown. Eager to have children of their own, the spouses
made it appear that they were the children’s parents by naming them Michelle P. Lim and
Michael Jude Lim. Subsequently, Monina married Angel Olario after Primo’s death. She decided
to adopt the children by availing the amnesty given under R.A. 8552 to those individuals who
simulated the birth of a child. She filed separate petitions for the adoption of Michelle, then 25
years old and Michael, 18. Both Michelle and Michael gave consent to the adoption. The trial
court dismissed the petition and ruled that Monina should have filed the petition jointly with her
new husband. Monina, in a Motion for Reconsideration argues that mere consent of her
husband would suffice and that joint adoption is not needed, for the adoptees are already
emancipated. Is the trial court correct in dismissing the petitions for adoption?

ANSWER:
YES. Sec. 7 Art. 3 of R.A. 8552 reads:
Sec. 7 – Husband and wife shall jointly adopt xxx.

The use of the word “shall” in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also
ensures harmony between the spouses.

The law is clear. There is no room for ambiguity. Monina, having remarried at the time the
petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed
only by Monina herself, without joining her husband, Olario, the trial court was correct in denying
the petitions for adoption on this ground (In Re: Petition for Adoption of Michelle P. Lim, In Re:
Petition for Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 168992-93, May 21,
2009).

3. Bernadette filed a petition for adoption of the three minor children of her late brother, Ian. She
alleged that when her brother died, the children were left to the care of their paternal
grandmother, because their biological mother Amelia went to Italy to work and has allegedly
abandoned her children. This grandmother died however, and so she filed the petition for
adoption. The minors gave their written consent to the adoption and so did all of her own
grown-up children. The trial court granted the decree of adoption even though the written
consent of the biological mother of the children was not adduced by Bernadette. Was the trial
court correct in granting the decree of adoption?

ANSWER:
NO. The rule is adoption statutes must be liberally construed in order to give spirit to their
humane and salutary purpose which is to uplift the lives of unfortunate, needy or orphaned
children. However, the discretion to approve adoption proceedings on the part of the courts
should not to be anchored solely on those principles, but with due regard likewise to the natural
rights of the parents over the child. The written consent of the biological parents is
indispensable for the validity of the decree of adoption. Indeed, the natural right of a parent to
his child requires that his consent must be obtained before his parental rights and duties may be
terminated and vested in the adoptive parents. In this case, petitioner failed to submit the written
consent of Amelia Ramos to the adoption. This is so under Sec. 9 (b) of R.A. 8552, otherwise
known as the Domestic Adoption Act of 1998. Bernadette failed in this respect, thus
necessitating the dismissal of her petition for adoption (Landingin v. Republic, G.R. No. 164948,
June 27, 2006).

4. Despite several relationships with different women, Andrew remained unmarried. His first
relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla,
produced two sons: Jon and Ryan. His third, with Donna, bore him two daughters: Vina and
Wilma. His fourth, while Elena, bore him no children although Elena has a daughter Jane, from
a previous relationship. His last, with Fe, produced no biological children but they informally
adopted without court proceedings, Sandy, now 13 years old, whom they consider as their own.
Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to
Sandy’s birth. All the children, including Amy, now live with Andrew in his house.

b. Is there any legal obstacle to the legal adoption of Amy by Andrew?

c. To the legal adoption of Sandy by Andrew and Elena?

d. In his old age, can Andrew be legally entitled to claim support from Amy, Jon, Ryan, d. Vina,
Wilma and Sandy assuming that all of them have the means to support him?
e. Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally claim support from each other?

f. Can Jon and Jane legally marry? (2008 BAR)

ANSWER:

a. NO, there is no legal obstacle to the legal adoption of Amy by Andrew. While a person of age
may not be adopted, Amy falls within two exceptions: (1) she is an illegitimate child and she is
being adopted by her illegitimate father to improve her status; and (2) even on the assumption
that she is not an illegitimate child of Andrew, she may still be adopted, although of legal age,
because she has been consistently considered and treated by the adopter as his own child
since minority. In fact, she has been living with him until now.

b. YES. There is a legal obstacle to the adoption of Sandy by Andrew and Elena. Andrew and
Elena cannot adopt jointly because they are not married.

c. YES. Andrew can claim support from all of them, except from Sandy, who is not his
legitimate, illegitimate or adopted child.

d. YES. Amy, Jon, Ryan, Vina and Wilma can ask support from each other because they are
half-blood brothers and sisters, and Vina and Wilma are full-blood sisters (Art. 195 [5], FC), but
not Sandy who is not related to any of them.

e. YES. Jon and Jane can legally marry because they are not related to each other. Jane is not
a daughter of Andrew.

5. Sometime in 1990, Sarah, born a Filipino but by then a naturalized American citizen, and her
American husband Sonny Cruz, filed a petition in the Regional Trial Court of Makati, for the
adoption of the minor child of her sister, a Filipina, can the petition be granted? (2000 BAR)

ANSWER:
IT DEPENDS. If Sonny and Sarah have been residing in the Philippines for at least three (3)
years prior to the effectivity of R.A. 8552, the petition may be granted. Otherwise, the petition
cannot be granted because the American husband is not qualified to adopt.

While the petition for adoption was filed in 1990, it was considered refiled upon the effectivity of
R.A. 8552. This is the law applicable, the petition being still pending with the lower court. Under
the Act, Sarah and Sonny must adopt jointly because they do not fall in any of the exceptions
where one of them may adopt alone. When husband and wife must adopt jointly, the Supreme
Court has held in a line of cases that both of them must be qualified to adopt. While Sarah, an
alien, is qualified to adopt, for being a former Filipino citizen who seeks to adopt a relative within
the 4 th degree of consanguinity or affinity, Sonny, an alien, is not qualified to adopt because he
is neither a former Filipino citizen nor married to a Filipino. One of them not being qualified to
adopt, their petition has to be denied. However, if they have been residents of the Philippines 3
years prior to the effectivity of the Act and continues to reside here until the decree of adoption
is entered, they are qualified to adopt the nephew of Sarah under Sec. 7(b) thereof, and the
petition may be granted. Only a legally free child may be adopted provided the following are
submitted:
a. Child study;
b. Birth certificate/ foundling certificate;
c. Deed of Voluntary Commitment/Decree of Abandonment/Death Certificate of parents;
d. Medical evaluation or history;
e. Psychological evaluation; and
f. Recent photo.

TITLE VIII. SUPPORT

1.Rule when:

a. Two or more persons are obliged to give support;

b. Two or more recipients at the same time claim support from the same persons who does not
have sufficient means to satisfy all claims

ANSWER:

a. The payment of the same shall be divided between them in proportion to the resources of
each. However, in case of urgent need and by special circumstances, the judge may order only
one of them to furnish support provisionally, without prejudice to his right to claim
reimbursement from the other obligors of their corresponding shares (FC, Art. 200).

b. The order established under Art. 199 of the Family Code shall be followed, unless the
concurrent obliges should be the spouse and a child, in which case, the child shall be preferred
(FC, Art. 200).

2. Belen, in behalf of her minor children, instituted a petition for declaration of legitimacy and
support against Federico, their alleged father, and Francisco, father of Federico. It appears that
the marriage of the two was annulled due to the minority of Federico. May Francisco be ordered
to give support?

ANSWER:
YES. There appears to be no dispute that the children are indeed the daughters of Federico by
Belen. Under Art. 199 of the Family Code, “Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following persons in the following order herein
provided:
1. The spouse;

2. The descendants in the nearest degree;

3. The ascendants in the nearest degree: and

4. The brothers and sisters.

The obligation to give support rests principally on those more closely related to the recipient.
However, the more remote relatives may be held to shoulder the responsibility should the
claimant prove that those who are called upon to provide support do not have the means to do
so. Here, since it has been shown that the girls' father, Federico, had no means to support
them, then Francisco, as the girls’ grandfather, should then extend the support needed by them.

NOTE: The second option in Art. 204 of the Family Code, that of taking in the family dwelling the
recipient, is unavailing in this case since the filing of the case has evidently made the relations
among the parties bitter and unpleasant (Mangonon, et al. v. CA, et al., G.R. No. 125041, June
30, 2006).

3. Marcelo and Juana called Dr. Arturo to their house to render medical assistance to their
daughter-in-law who was about to give birth to a child. He performed the necessary operation.
When Dr. Arturo sought payment, Marcelo and Juana refused to pay him without giving any
good reason. Who is bound to pay the bill for the services rendered by Arturo?

ANSWER:
HER HUSBAND, not her father and mother- in-law. The rendering of medical assistance in case
of illness is comprised among the mutual obligations to which the spouses are bound by way of
mutual support (FC, Arts. 142 and 143). If every obligation consists in giving, doing or not doing
something (NCC, Art. 1088), and spouses are mutually bound to support each other, there can
be no question but that, when either of them by reason of illness should be in need of medical
assistance, the other is under the unavoidable obligation to furnish the necessary services of a
physician in order that health may be restored, and he or she may be freed from the sickness by
which life is jeopardized (Pelayo v. Lauron, G.R. No. L-4089, January 12, 1909).

4. Cheryl married Edward Lim and they begot three children. Cheryl, Edward and their children
lived at the house of Edward’s parents, Prudencio and Filomena, together with Edward’s ailing
grandmother and her husband. Edward was employed with the family business, which provided
him with a monthly salary of P6,000 and shouldered the family expenses. Cheryl had no steady
source of income. Cheryl caught Edward in “a very compromising situation” with the midwife of
Edward’s grandmother. After a violent confrontation with Edward, Cheryl left the Forbes Park
residence. She subsequently sued, for herself and her children, Edward, Edward’s parents and
grandparents for support. Edward and his parents were ordered by the RTC to “jointly” provide,
monthly support to Cheryl and her children. Is the court’s judgment in making Edward’s parents
concurrently liable with Edward to provide support to Cheryl and her children correct?

ANSWER:
YES. However, the Supreme Court modified the appealed judgment by limiting liability of
Edward’s parents to the amount of monthly support needed by Cheryl’s children. Edward’s
parents are liable to provide support but only to their grandchildren. By statutory and
jurisprudential mandate, the liability of ascendants to provide legal support to their descendants
is beyond cavil. Petitioners themselves admit as much — they limit their petition to the narrow
question of when their liability is triggered, not if they are liable.

There is no showing that private respondent is without means to support his son; neither is there
any evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily
provide for her grandson's legal support. Cheryl is unable to discharge her obligation to provide
sufficient legal support to her children. It also shows that Edward is unable to support his
children. This inability of Edward and Cheryl to sufficiently provide for their children shifts a
portion of their obligation to the ascendants in the nearest degree, both in the paternal
(petitioners) and maternal lines, following the ordering in Article 199 (Spouses Lim v. Cheryl
Lim, G.R. No. 163209, October 30, 2009).

5. H and W are living separately. Both had been unfaithful to each other. After their separation,
H had been giving money to W for her support. Subsequently, W brought an action against H for
separate maintenance. Will the action prosper?

ANSWER:
YES. The principle of in pari delicto is applicable. Both are at fault. Consequently, H cannot avail
of himself of the defense of adultery of W. Besides, the act of H in giving money to W is implied
condonation of the adultery of W (Amacen v. Baltazar, G.R. No. L-10028, May 28, 1958).

6. Jurisdictional questions may be raised at any time. What is the exception with respect to the
provisional character of judgment for support and the application of estoppel?

ANSWER:
Judgment for support is always provisional in character. Res Judicata does not apply. The lower
court cannot grant a petition based on grounds, such as bigamy, not alleged in the petition.
Such a decision based on grounds not alleged in the petition is void on the ground of no
jurisdiction.

However, if the lower court’s void decision is not assailed on appeal which dealt only with the
matter of support, the losing party is now estopped from questioning the declaration of nullity
and the SC will not undo the judgment of the RTC declaring the marriage null and void for being
bigamous.

It is axiomatic that while a jurisdictional question may be raised at any time, this however admits
of an exception where estoppel has supervened (Lam v. Chua, G.R. No. 131286, March 18,
2004).

7. Edward abandoned his legitimate children when they were minors. After 19 years from the
time Edward left them, they, through their mother, finally sued him for support, which the court
granted. The court ordered him to pay 2M pesos as support in arrears.

Edward assails the grant of the support in arrears as erroneous since under Art. 203 of the FC,
there was never any demand for support, judicial or extrajudicial, from them. Is his contention
right?

ANSWER:
NO. Edward could not possibly expect his daughters to demand support from him considering
their tender years at the time that he abandoned them. In any event, the mother of the girls had
made the requisite demand for material support although this was not in the standard form of a
formal written demand. Asking one to give support owing to the urgency of the situation is no
less a demand just because it came by way of a request or a plea (Lacson v. Lacson, et al.,
G.R. No. 150644, August 28, 2006).

8. Noel helped Lea by extending financial help to support Lea’s children with Edward. May Noel
seek reimbursement of his contributions? If yes, from whom may he do so?

ANSWER:
YES. Pursuant to Art. 207 of the Family Code, Noel can rightfully exact reimbursement from
Edward. This provision reads that “[W]hen the person obliged to support another unjustly
refuses or fails to give support when urgently needed by the latter, any third person may furnish

support to the needy individual, with right of reimbursement from the person obliged to give
support.” The resulting juridical relationship between the Edward and Noel is a quasi-contract,
an equitable principle enjoining one from unjustly enriching himself at the expense of another
(Lacson v. Lacson, et al., G.R. No. 150644, August 28, 2006).

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9. Fe and her son Martin sued Martin’s alleged biological father Arnel for support. Arnel denied
having sired Martin, arguing that his affair and intimacy with Fe had allegedly ended in long
before Martin’s conception. As a result, Fe and Martin moved for the issuance of an order
directing all the parties to submit themselves to DNA paternity testing. The said motion was
granted by the court. Did the order of the court convert the complaint for support to a petition for
recognition?

ANSWER:
The assailed order did not convert the action for support into one for recognition but merely
allowed Fe to prove their cause of action. But even if the order effectively integrated an action to
compel recognition with an action for support, such was valid and in accordance with
jurisprudence. The integration of an action to compel recognition with an action to claim one’s
inheritance is allowed (Tayag v. CA, G.R. No. 95229, June 9, 1992). A separate action will only
result in a multiplicity of suits. Furthermore, the declaration of filiation is entirely appropriate to
the action for support (Agustin v. CA, G.R. No. 162571, June 15, 2005).

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10. Can DNA testing be ordered in a proceeding for support without violating the constitutional
right against self-incrimination?

ANSWER:
YES. Compulsory DNA testing and the admissibility of the results thereof as evidence are
constitutional (People v. Yatar, G.R. No. 150224, May 19, 2004). Moreover, it has mostly been
in the areas of legality of searches and seizure and in the infringement of privacy of
communication where the constitutional right to privacy has been critically at issue.

If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA
testing, so much more so may a party in a civil case, who does not face such dire
consequences, be likewise compelled. DNA testing and its results is now acceptable as object
evidence without running afoul self-incrimination rights of a person (Agustin v. CA, G.R. No.
162571, June 15, 2005).

TITLE IX. PARENTAL AUTHORITY

1.Carlitos Silva and Suzanne Gonzales had a live-in relationship. They had two children,
namely, Ramon Carlos and Rica Natalia. Silva and Gonzales eventually separated. They had
an understanding that Silva would have the children in his company on weekends. Silva claimed
that Gonzales broke that understanding on visitation rights. Hence, Silva filed a petition for
custodial rights over the children before the RTC. The petition was opposed by Gonzales who
claimed that Silva often engaged in gambling and womanizing which she feared could affect the
moral and social values of the children. In the meantime, Suzanne had gotten married to a
Dutch national. She eventually immigrated to Holland with her children Ramon Carlos and Rica
Natalia. Can Silva be denied visitation rights?

ANSWER:
GR: NO.

XPN: If the fears and apprehensions were founded as to the father’s corrupting influence over
the children and if it is proven therefore that indeed the father is a negative influence because of
reasons like immorality, drunkenness, etc. on the children, the court, taking into consideration
the best interest of the children, can deny his petition for the exercise of his visitation rights
(Silva v. CA, G.R. No. 114742, July 17, 1997).

2. If the parents are separated de facto, who between them has custody over their child/
children?

ANSWER:
In the absence of a judicial grant of custody to one parent, both of them have custody over their
child/children

The parent who has been deprived of the rightful custody of the child may resort to the remedy
of habeas corpus (Salientes v. Abanilla, G.R. No. 162734, August 29, 2006).

NOTE: The general rule that children less than 7 years of age shall not be separated from the
mother finds its raison d'etre in the basic need of minor children for their mother's loving care.
This is predicated on the "best interest of the child" principle which pervades not only child
custody cases but also those involving adoption, guardianship, support, personal status and
minors in conflict with the law (Pablo-Gualberto v. Gualberto, G.R. No. 154994/G.R. No.
156254, June 28, 2005).

3. Bonifacia Vancil, a US citizen, is the mother of Reeder C. Vancil, a US Navy serviceman who
died in the USA on December 22, 1986. During his lifetime, Reeder had two children named
Valerie and Vincent by his common-law wife, Helen G. Belmes. Bonifacia obtained a favorable
court decision appointing her as legal and judicial guardian over the persons and estate of
Valerie Vancil and Vincent Vancil, Jr. She alleged that Helen was morally unfit as guardian of
Valerie considering that Helen’s live-in partner raped Valerie several times. Can Bonifacia
exercise substitute parental authority over Valerie and Vincent?

ANSWER:
NO. Bonifacia, as the surviving grandparent, can exercise substitute parental authority only in
case of death, absence or unsuitability of Helen. Considering that Helen is very much alive and
has exercised continuously parental authority over Vincent, Bonifacia has to prove, in asserting
her right to be the minor’s guardian, Helen’s unsuitability. Bonifacia, however, has not proffered
convincing evidence showing that Helen is not suited to be the guardian of Vincent. Bonifacia
merely insists that Helen is morally unfit as guardian of Valerie considering that her live-in
partner raped Valerie several times. (But Valerie, being now of major age, is no longer a subject
of this guardianship proceeding).Even assuming that Helen is unfit as guardian of minor
Vincent, still Bonifacia cannot qualify as a substitute guardian. She is an American citizen and a
resident of Colorado. Obviously, she will not be able to perform the responsibilities and
obligations required of a guardian. In fact, in her petition, Bonifacia admitted the difficulty of
discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely
delegate those duties to someone else who may not also qualify as a guardian ( , G.R. No.
132223, June 19, 2001).
TITLE X. SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY

1.Jayson and his classmates were conducting a science experiment about fusion of sulphur
powder and iron filings under the tutelage of Tabugo, the subject teacher and employee of St.
Joseph College. Tabugo left her class while the experiment was ongoing without having
adequately secured the students from any untoward incident or occurrence. In the middle of the
experiment, Jayson checked the result of the experiment by looking into the test tube with
magnifying glass and it was moved towards his eyes. At that instance, the compound spurted
from the test tube and several particles hit Jayson’s eyes. His left eye was chemically burned,
for which he had to undergo surgery and spend for medication. Jayson filed a complaint for
damages against the school and Tabugo. Can the said school and its teacher, Tabugo, be held
liable for the unfortunate incident of Jayson?

ANSWER:
YES. The proximate cause of the student’s injury was the concurrent failure of petitioners to
prevent the foreseeable mishap that occurred during the conduct of the science experiment.
Petitioners were negligent by failing to exercise the higher degree of care, caution and foresight
incumbent upon the school, its administrators and teachers. Art. 218 of the Family Code, in
relation to Art. 2180 of the New Civil Code, bestows special parental authority on a school, its
administrators and teachers, or the individual, entity or institution engaged in child care, and
these persons have responsibility over the minor child while under their supervision, instruction
or custody. Authority and responsibility shall apply to all authorized activities whether inside or
outside the premises of the school, entity or institution.

In this case, the petitioners’ negligence and failure to exercise the requisite degree of care and
caution was demonstrated by the following: (i) petitioner school did not take affirmative steps to
avert damage and injury to its students although it had full information on the nature of
dangerous science experiments conducted by the students during class; (ii) petitioner school did
not install safety measures to protect the students who conduct experiments in class; (iii)
petitioner school did not provide protective gears and devices, specifically goggles, to shield
students from expected risks and dangers; and (iv) petitioner Tabugo (the teacher) was not
inside the classroom the whole time her class conducted the experiment, specifically, when the
accident involving the student occurred (St. Joseph’s College v. Miranda, G.R. No. 182353,
June 29, 2010).

TITLE XI. SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

TITLE XII. FINAL PROVISIONS - RETROACTIVITY

1.Antonia Aruego and her sister Evelyn filed a petition in the courts seeking Jose Aruego, Jr.
and his five children to recognize them as illegitimate children and compulsory heirs of Jose.
They claim that there is open and continuous possession of status of illegitimate children of
Jose who had an amorous relationship with their mother Luz Fabian until the time of the death
of Jose. The court declared that Antonia Aruego is an illegitimate daughter of the deceased with
Luz Fabian while Evelyn is not. Antonia and Evelyn contested the decision citing provisions of
the Family Code particularly Art. 127 on Filiation, Art.172 on illegitimate children’s filiation, and
Art.256 on the retroactivity of the code. Whether the provisions of the Family Code can be
applied retroactively and will it impair the vested rights of the respondents?

ANSWER:
The action for compulsory recognition and enforcement of successional rights which was filed
prior to the advent of the Family Code, must be governed by Art. 285 of the New Civil Code and
not by Art. 175, par. 2 of the Family Code. The present law cannot be given retroactive effect
insofar as the instant case is concerned, as its application will prejudice the vested right of
private respondent to have her case decided under Art. 285 of the New Civil Code. The right
was vested to her by the fact that she filed her action under the regime of the New Civil Code.
Prescinding from this, the conclusion then ought to be that the action was not yet barred,
notwithstanding the fact that it was brought when the putative father was already deceased,
since private respondent was then still a minor when it was filed, an exception to the general
rule provided under Art. 285 of the New Civil Code. Hence, the trial court, which acquired
jurisdiction over the case by the filing of the complaint, never lost jurisdiction over the same
despite the passage of E.O. No. 209, also known as the Family Code of the Philippines (Aruego
v. CA, G.R. No. 112193, March 13, 1996).

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NOTE: If an action for recognition was filed prior to the effectivity of the FC, Art. 173 of the
Family Code cannot be given retroactive effect because it will prejudice the vested rights of
petitioners transmitted to them at the time of the death of their father, Eutiquio Marquino.
"Vested right" is a right in property which has become fixed and established and is no longer
open to doubt or controversy. It expresses the concept of present fixed interest, which in right
reason and natural justice should be protected against arbitrary State action (Marquino v. IAC,
G.R. No. 72078, June 27, 1994).

TITLE XII. USE OF SURNAMES

1.Corazon Reyes and Carlos Santos were married on Dec. 1, 2007. Since that time, Corazon
has been using the name Corazon Santos in all her employment records and other official
documents. On Feb. 2, 2008, upon petition of Corazon, due to concealment of habitual
alcoholism existing at the time of their marriage, a decree of annulment was granted by the
Family Court of Manila. Subsequently, Corazon filed with the same court a motion to resume
using her maiden surname of “Reyes” and that she be granted support by Carlos.
a. If you were the judge, would you grant the motion of Corazon to resume using her
maiden surname? (2.5%)
b. Should Corazon be granted support by her husband? (2.5%)

ANSWER:
a. Yes. Under Article 371 of the Civil Code, in case of annulment of marriage, and the wife is the
guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she
may resume her maiden name and surname. In the case at bar, Corazon is the innocent
spouse, hence, she has the option to resume using her maiden name and surname.
b. No more. The final judgment in annulment of marriage shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody and support of the
common children, and the delivery of their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings. After such liquidation and partition of the properties
of the spouses, there is no more obligation to support each other. (Article 50 NCC).

2. Jennifer was born in 1981 and was registered as “female” in her birth certificate. She was
later diagnosed to be afflicted with congenital adrenal hyperplasia (CAH), a rare condition where
a person possesses both male and female characteristics. Tests revealed that her ovarian
structures had minimized, she has clitoral hyperthropy, she stopped growing and she has no
breasts or menstrual development. She has practically become a male person.
She filed a petition before the RTC of Siniloan, Laguna that her name in her birth certificate be
changed from “Jennifer” to “Jeff” and her gender from “female” to “male”. If you were the judge
hearing this case, will you grant or deny her petition? (5%)

ANSWER:
Jennifer’s petition should be granted. In the case of Republic vs. Cagandahan, the Supreme
Court held that considering that Jennifer was born an intersex, the determining factor in his/her
gender classification would be what he/she, having reached the age of majority, with good
reason, thinks of his/her sex. More importantly in this case, Jennifer did not use any drug nor
underwent any sex re-assignment to change her gender from female to male.

3.Can a person change his registered first name and sex on the basis of a sex reassignment?

ANSWER:
NO. Before a person can legally change his given name, he must present proper or reasonable
cause or any compelling reason justifying such change. In addition, he must show that he will be
prejudiced by the use of his true and official name. Under the Civil Register Law, a birth
certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a
person is determined at birth, visually done by the birth attendant (the physician or midwife) by
examining the genitals of the infant. Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at the time of his or her birth, if not
attended by error, is immutable (Silverio v. Republic, G.R. No. 174689, October 22, 2007).

4.Virginia Remo, a Filipino citizen, is married to Francisco Rallonza. In her passport, the
following entries appear: "Rallonza" as her surname, "Maria Virginia" as her given name, and
"Remo" as her middle name. Prior to the expiration of her passport, Virginia applied for the
renewal of her passport with the DFA, with a request to revert to her maiden name and surname
in the replacement passport. Virginia, relying on Article 370 of the Civil Code, contends that the
use of the husband’s surname by the wife is permissive rather than obligatory. Is Virginia
correct?

ANSWER:
NO. A married woman has an option, but not a duty, to use the surname of the husband in any
of the ways provided by Art. 370 of the New Civil Code. However, R.A. 8239 or the Philippine
Passport Act of 1996 limits the instances when a married woman applicant may exercise the
option to revert to the use of her maiden name. These are death of husband, divorce,
annulment, and declaration of nullity of marriage.

In case of renewal of passport, a married woman may either adopt her husband’s surname or
continuously use her maiden name. However, once she opted to use her husband’s surname in
her original passport, she may not revert to the use of her maiden name, except if any of the
four grounds provided under R.A. 8239 is present.

Further, even assuming R.A. 8239 conflicts with the Civil Code, the provisions of R.A. 8239
which is a special law specifically dealing with passport issuance must prevail over the
provisions of the Civil Code which is the general law on the use of surnames. A basic tenet in
statutory construction is that a special law prevails over a general law (Remo v. Sec. of Foreign
Affairs, G.R. No. 169202, March 5, 2010).

5.Does an illegitimate child have a middle name?

ANSWER:
NO. An 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. 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 (In Re: Petition for Change of Name
of Julian Wang v. Cebu Civil Registrar, G.R. No. 155966, March 30, 2005).

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6.Honorato filed a petition to adopt his minor illegitimate child Stephanie. Stephanie has been
using her mother's middle name and surname. He prayed that Stephanie's middle name be
changed from "Astorga" to "Garcia," which is her mother's surname and that her surname
"Garcia" be changed to "Catindig," which is his surname. This the trial court denied. Was the
trial court correct in denying Honorato’s request for Stephanie’s use of her mother’s surname as
her middle name?

ANSWER:
NO. The name of an individual has two parts – the given name or proper name and the
surname or family name. The given name may be freely selected by the parents for the child,
but the surname to which the child is entitled is fixed by law. The Civil Code (Arts. 364 to 380) is
silent as to the use of a middle name. Even Art. 176 of the Family Code, as amended by RA
9255 (An Act Allowing Illegitimate Children to Use the Surname of Their Father) is silent as to
what middle name a child may use.

An adopted child is entitled to all the rights provided by law to a legitimate child without
discrimination of any kind, including the right to bear the surname of her father and her mother.
As she had become a legitimate child on account of her adoption, it follows that Stephanie is
entitled to utilize the surname of her father, Honorato Catindig, and that of her mother, Gemma
Garcia.

Since there is no law prohibiting an illegitimate child adopted by her natural father, like
Stephanie, to use, as middle name her mother's surname, the High Court found no reason why
she should not be allowed to do so.

NOTE: The Supreme Court granted the petition for 2 reasons:

1. The adopted child's continued use of her mother's surname as her middle name will maintain
her maternal lineage; and

2. It will also eliminate the stigma of her illigitmacy.

The Supreme Court, in granting the petition, predicated its ruling upon the statutory principle
that adoption statutes, being humane and salutary, should be liberally construed to carry out the
beneficent purposes of adoption. The modern trend is to consider adoption not merely as an act
to establish a relationship of paternity and filiation, but also as an act which endows a child with
legitimate status (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No.
148311, March 31, 2005).

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7.The petition filed by the parents in behalf of their minor son Julian Lin Carulasan Wang sought
the dropping of the latter's middle name, "Carulasan." The parents averred that their plan for
Julian to study in Singapore and adjust to its culture necessitates the drop since in that country,
middle names or the mother's surname are not carried in a person's name. They therefore
anticipate that Julian may be subjected to discrimination on account of his middle name, which
is difficult to pronounce in light of Singapore's Mandarin language which does not have the letter
"R" but if there is, Singaporeans pronounce it as "L." Should the petition for the dropping of his
middle name be granted?

ANSWER:
NO. Petitioners’ justification for seeking the change in the name of their child, that of
convenience, was characterized by the Supreme Court as amorphous, to say the least, and
would not warrant a favorable ruling. As Julian is only a minor and has yet to understand and
appreciate the value of any change in his name, it is best that the matter be left to his judgment
and discretion when he reaches legal age.

The State has an interest in the names borne by

individuals and entities for purposes of identification, and that a change of name is a privilege
and not a right, such that before a person can be allowed to change the name given him either
in his birth certificate or civil registry, he must show proper or reasonable cause, or any
compelling reason which may justify such change. Otherwise, the request would be denied (In
Re: Petition for change of name and/or correction/cancellation of entry in civil registry of Julian
Lin Carulasan Wang, G.R. No. 159966, March 30, 2005).

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NOTE: The touchstone for the grant of a change of name is that there be proper and reasonable
cause for which the change is sought.

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8.Giana was born to Andy and Aimee, who at the time of Giana’s birth were not married to each
other. While Andy was single at that time, Aimee was still in the process of securing a judicial
declaration of nullity on her marriage to her ex-husband. Gianna’s birth certificate, which was
signed by both Andy and Aimee, registered the status of Gianna as “legitimate”, her surname
carrying that of Andy’s, and that her parents were married to each other.

Can a judicial action for correction of entries in Gianna’s birth certificate be successfully
maintained to:

a. Change her status “illegitimate”; and from “legitimate” to

b. Change her surname from that of Andy’s to Aimee’s maiden surname?

c. Instead of a judicial action, can administrative proceedings be brought for the purpose of
making the above corrections?

d. Assuming that Aimee is successful in declaring her former marriage void, and Andy and
Aimee subsequently married each other, would Gianna be legitimated? (2008 BAR)

ANSWER:

a. A judicial action cannot be maintained to change the status of Gianna from “legitimate” to
“illegitimate” child of Andy and Aimee. While it is true that Gianna is the biological daughter of
Andy and Aimee conceived and born without marriage between them, Gianna is presumed,
under the law as the legitimate child of Aimee and her husband. This filiation may be impugned
only by the husband. To correct the status of Gianna in her birth certificate from “legitimate child
of Andy and Aimee” to “illegitimate child of Andy and Aimee” will amount to indirectly impugning
her filiation as the child of Aimee’s husband in a proper action. What cannot be done directly
cannot be done indirectly.

b. A judicial action to change the surname of Gianna from the surname of Andy to the maiden
surname of Aimee is also not allowed. Gianna, being presumed to be the legitimate child of
Aimee’s husband is required by law to be registered under the surname of Aimee’s husband.
While it is true that Gianna’s registered surname is erroneous, a judicial action for correction of
entry to change the surname of Gianna to that of Aimee’s maiden surname will also be
erroneous. A judicial action to correct an entry in the birth certificate is allowed to correct an
error and not to commit another error.

Alternative Answers: It may be noted that the problems does not show whether Gianna was
born while Aimee was living with her ex-husband. Neither does it show who filed the judicial
action to correct the entries.

If the problem is intended only for purpose of determining whether factual changes are in order,
then the answers are:

a. A change from “legitimate” to “illegitimate” is proper upon proof of lack of marriage between
Andy and Aimee.

b. If the child is considered illegitimate, then she should follow the surname of her mother.

c. Under R.A. 9048, only typographical errors are allowed to be corrected administratively. The
change of status from legitimate to illegitimate is not a typographical error and even assuming
that it is, its administrative correction is not allowed under R.A. 9048. Typographical errors
involving status, age, citizenship, and gender are expressly excluded from what may be
corrected administratively.

The change of the surname is also not allowed administratively. R.A. 9048 provides for an
administrative procedure for change of first name only and not for change of surname.

d. NO, Gianna will not be legitimated. While the court may have declared the marriage void ab
initio and, therefore, no marriage took place in the eyes of the law, Gianna will still not be
legitimated. This is because at the time she was conceived and born, her biological parents
could not have validly married each other. For their marriage to be valid, the court must first
declare the first marriage null and void. In the problem, Gianna was conceived and born before
the court has decreed the nullity of her mother’s previous marriage.

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NOTE: The word "principally" as used in the codal provision is not equivalent to "exclusively" so
that there is no legal obstacle if a legitimate or legitimated child should choose to use the
surname of its mother to which it is equally entitled. If the mother's surname is used by the child
since childhood and the child has been using it already in various records, then there is an
ample justification for the continuation of the use of the mother’s surname. It is therefore, not
whimsical, but on the contrary, is based on a solid and reasonable ground, i.e. to avoid
confusion (Alfon v. Republic, G.R. No. L-51201, May 29, 1980).