FAMILY HOME consent.

Even an un-married head of the family

may likewise constitute a family home on his or
A family home is the dwelling place of a person her own property.
and his family. It is said, however, that the
family home is a real right, which is gratuitous, However, for purposes of availing of the
inalienable and free from attachment, constituted benefits of a family home, a person may
over the dwelling place and the land on which it constitute, or be the beneficiary of only one
is situated, which confers upon a particular family home (i.e., exemption from execution,
family the right to enjoy such properties, which forced sale or attachment).
must remain with the person constituting it and
his heirs. A family residence shall continue to be
considered as a “family home” so long as any of
Under the Civil Code, a family home may be its beneficiaries actually resides therein.
constituted judicially and extrajudicially, the
former by the filing of the petition and with the What is the rule relative to the levy on
approval of the proper court, and the latter by the execution over a family home?
recording of a public instrument in the proper
registry of property declaring the establishment • A: A family home is generally exempt
of the family home. from execution provided that it was duly
constituted as such. There must be proof
Under the Family Code, however, a family home that the alleged family home was
is deemed constituted on a house and lot from constituted jointly by the husband and
the time it is occupied as a family residence. wife or by an unmarried head of a
There is no need to constitute the same judicially family. It must be the house where they
or extrajudicially as required in the Civil Code. and their family actually reside and the
lot on which it is situated.
If the family actually resides in the premises, it • The family home must be part of the
is, therefore, a family home as contemplated by properties of the absolute community or
law. And it continues to be such so long as any the conjugal partnership, or of the
of its beneficiaries actually resides therein. The exclusive properties of either spouse
requirement of house and land as constitutive of with the latter’s consent, or on the
a family home stresses the element of property of the unmarried head of the
permanence. family.
• The actual value of the family home
Note that the law explicitly provides that shall not exceed, at the time of its
occupancy of the family home either by the constitution, the amount of P300,000 in
owner thereof or by “any of its beneficiaries” urban areas and P200,000 in rural areas.
must be actual.

“Actual” is something real, or actually existing, Under Article 154 of the Family Code, the
as opposed to something merely possible, or to following are the beneficiaries of the family
something which is presumptive or constructive. home:
Actual occupancy, however, need not be by the
owner of the house specifically. Rather, the (a) the husband and wife, or an unmarried
property may be occupied by the “beneficiaries” person who is the head of a family; and
enumerated by Article 154 of the Family Code. (b) their parents, ascendants, descendants,
brothers and sisters, whether the
It is not only the spouses who may constitute a relationship be legitimate or
family home on the properties of the absolute illegitimate, who are living in the family
community or conjugal partnership or on the home and who depend upon the head of
exclusive property of either with the latter’s the family for legal support.
 b) The Beneficiaries must actually reside in
It may include the in-laws where the family the family home and not constructive.
home is constituted jointly by the husband and
wife. Q: What would make your home exempt
from execution?
As a rule, the family home is exempt from A: A home to be exempt from execution
execution, forced sale or attachment. This must have been constituted as a family
exemption is effective from the time of the home in the manner above described.
constitution of the family home as such, and
lasts so long as any of its beneficiaries actually For the family home to be exempt from
resides therein. HOWEVER, it is only exempt to execution, distinction must be made as
the extent of the value allowed by law. to what law applies based on when it
was constituted and what requirements
The law authorizes the sale of the family must be complied with by the judgment
home when a judgment creditor (whose claims debtor or his successors claiming such
is not among those mentioned in Article 155 of privilege. Hence, two sets of rules are
the Family Code) has reasonable grounds to applicable.
believe that the family home “is actually worth
more than the maximum amount fixed in Article If the family home was constructed
157. before the effectivity of the Family Code
or before August 3, 1988, then it must
If the court finds that the actual value of the have been constituted either judicially or
family home exceeds the maximum amount extra-judicially as provided under
allowed by law, the court shall order the Articles 225, 229-231 and 233 of the
execution and sale of the family home. At the New Civil Code.
execution sale, the law mandates that “no bid
below the value allowed for a family home shall A family home is not exempt from execution,
be considered. the law also directs that, in the forced sale or attachment in connection with
distribution of the proceeds of the sale, the the following claims:
amount mentioned in Article 157 shall first be
satisfied prior to the satisfaction of the judgment (1) for nonpayment of taxes;
debt and the costs. Any excess shall be delivered (2) for debts incurred prior to the
to the judgment debtor. constitution of the family home;
(3) for debts secured by mortgages on the
WHAT ARE THE REQUISITES IN ORDER premises before or after such
FOR A FAMILY HOME TO BE EXEMPT constitution; and
FROM EXECUTION, FORCED SALE OR (4) for debts due to laborers, mechanics,
ATTACHMENT? architects, builders, materialmen and
others who have rendered service or
a) The debts for which the family home is furnished material for the construction
made answerable must have been of the building.
incurred after August 3, 1988.
Otherwise (that is, if it was incurred Rules on constitution of family homes, for
prior to August 3, 1988), the alleged purposes of exemption from execution:
family home must be shown to have A. First, family
been constituted either judicially or residences constructed before the effectivity of
extrajudicially pursuant to the Civil the Family Code or before August 3, 1988
Code. (Art. 153 of the Family Code; must be constituted as a family home either
(Ramos vs. Pangilinan, G.R. No. judicially or extrajudicially in accordance
185920, July 20, 2010) with the provisions of the Civil Code in
order to be exempt from execution;
 B. Second, family
residences constructed after the effectivity of the The following rules shall apply in the event of
Family Code on August 3, 1988 are death of the person or persons who
automatically deemed to be family homes and constituted the family home:
thus exempt from execution from the time
it was constituted and lasts as long as (1) The family home continues to be as such
any of its beneficiaries actually resides therein; for as long as there is a minor
C. Third, family residences beneficiary actually residing therein;
which were not judicially or extrajudicially (2) But if there is no minor beneficiary, the
constituted as a family home prior to the family home continues to be as such
effectivity of the Family Code, but were existing only for a period of ten years provided
thereafter, are considered as that a beneficiary of legal age actually
family homes by operation of law and are resides therein.
prospectively entitled to the benefits accorded to
a family home under the Family Code. Upon the death of the person or persons who
constituted the family home and there are two
The law does not prohibit the alienation or or more heirs, the whole estate of the decedent
encumbrance of the family home. In fact, the (including the family home) is, before its
family home is not exempt from execution, partition, owned in common by such heirs,
forced sale or attachment for “debts secured by subject to the payment of the debts of the
mortgages on the premises of the family home” deceased. As a rule, any one of the co-owners
whether such debts are secured before or after may demand partition at any time.
the constitution of the family home.
HOWEVER, so long as the family home
The law requires the written consent of the continues to be as such, the heirs are
following persons in the sale, alienation, prohibited from partitioning the family home
donation or encumbrance of the family home: unless the court finds compelling reason
therefore.
(1) the person constituting the family home;
(2) the latter’s spouse; and Under Article 162 of the Family Code, it is
(3) majority of the beneficiaries of legal provided that “the provisions of this Chapter
age. shall also govern existing family residences
insofar as said provisions are applicable.”
It is submitted that the alienation or
encumbrance in excess of the value allowed Since under the Family Code, the family home is
under Article 157 shall be considered valid deemed constituted on a house and lot from the
(even without the written consent of the above- time it is occupied as family residence, the effect
named beneficiaries) of Article 162 is to constitute, by operation of
law, all existing family residences at the time
HOWEVER, when the family home is part of of the effectivity of the Family Code on
the conjugal partnership or absolute community August 3, 1988 into family homes.
property, its alienation or encumbrance during
the marriage without the consent of the other However, Articles 152 and 153 of the Family
spouse shall be void. Code do not have a retroactive effect such that
all existing family residences are deemed to
Upon the death of the person or persons who have been constituted as family homes at the
constituted the family home, it continues to be as time of their occupation prior to the effectivity
such but only for a period of 10 years or for as of the Family Code and are exempt from
long as there is a minor beneficiary. execution for the payment of obligations
incurred before the effectivity of the Family
Article 153 + 159 Rule: Code.
 Article 162 simply means that all existing The status of a marriage determines in large part
family residences at the time of the effectivity of the filiation of its resultant issue. Thus, a child
the Family Code are considered family homes born within a valid marriage is legitimate.
and are prospectively entitled to the benefits
accorded to a family home under the Family Also, children conceived or born in a voidable
Code. marriage are likewise considered legitimate
since a voidable marriage is valid until it is
Prior to August 3, 1988, the procedure mandated annulled.
by the Civil Code had to be followed for a
family home to be constituted as such. Children are legitimate if they were born out of:
• Annulled marriages under Art 45
PATERNITY AND FILIATION • Void marriages under Art 36
• Void marriages with parties who did not
Paternity- Civil Status of a father in relation to comply with Art 40, Art 52 and 53
his child
On the other hand, children conceived and born
Filiation- Civil Status of a child in relation to outside of a valid marriage are, as a rule,
his/her parents. considered illegitimate. Hence, children born
outside of wedlock and those born out of void
TYPES OF FILIATION: marriages are illegitimate.
 By nature: established by blood
relationship which can either be If, however, the parents of children born outside
legitimate or illegitimate of wedlock were, at the time of the child’s
 By Adoption conception and birth, not legally barred from
marrying each other and subsequently do so, the
Filiation by a judgment of adoption: A child’s filiation improves as he becomes
judgment of adoption is a judicial act whereby legitimized and the “legitimated” child
the same rights and obligations arising out of eventually enjoys all the privileges and rights
filiation by blood are established for the associated with legitimacy.
adoptive parent and the adopted child. The
judgment substitutes filiation by adoption for the “Art. 177 of the Family Code. Only
child’s original filiation, and the child ceases to children conceived and born outside of
belong to his or her original family, except that wedlock of parents who, at the time of
the child will not be able to marry with a the conception of the former, were not
member of that original family within the degree disqualified by any impediment to marry
prohibited by law. each other may be legitimated.

Filiation by assisted procreation: exists when Children Conceived of Artificial Insemination

a single individual or spouses decide to have a children conceived or born inside a perfectly
child by using the genetic material of another valid marriage or, at least, a voidable marriage,
individual. In this jurisdiction, our law likewise are legitimate.
recognizes the filiation resulting from the
artificial insemination of the wife with the sperm Likewise considered legitimate are children
of a donor (other than the husband) 5 but such conceived of artificial insemination of the wife
filiation is subsumed in our concept of natural with the sperm, either of the husband or
filiation since the child born out of such process donor, or both, provided that both the
is considered as the legitimate child of both the husband and the wife authorized or ratified
husband and the wife, if the requisites laid down such insemination in a written instrument
by the Code are followed, although the husband executed and signed by them before the birth
is not, in reality, related to the child by blood. of the child, which instrument is required to be
recorded in the civil registry together with the (3) That in case of children conceived through
birth certificate of the child. artificial insemination, the written
authorization or ratification of either parent
Note that the child conceived as a result of was obtained through mistake, fraud,
artificial insemination is considered a violence, intimidation, or undue influence.
legitimate child of both the husband and the
wife, even if the husband is not related by blood As such, the law does not recognize as valid the
to the child. use of a surrogate mother, even if the sperm is
that of the husband. Our law does not recognize
the validity of a surrogate mother contract,
which is defined as any agreement in which a
Art. 164. Children conceived or born during woman agrees to conceive or carry a child for
the marriage of the parents are legitimate. another individual or a couple, either free of
Children conceived as a result of artificial charge or for a consideration. In this jurisdiction,
insemination of the wife with the sperm of such kind of agreement is contrary to law,
the husband or that of a donor or both are morals and public policy.
likewise legitimate children of the husband
and his wife, provided, that both of them If a child is conceived by a surrogate mother
authorized or ratified such insemination in a through the use of the sperm of the husband, the
written instrument executed and signed by child is not to be considered legitimate child of
them before the birth of the child. The the husband and the wife, even if both had
instrument shall be recorded in the civil authorized or ratified the surrogate-mother
registry together with the birth certificate of contract, unless the child is adopted by the
the child. spouses.

Art. 166. Legitimacy of a child may be In other words, while the child may be able to
impugned only on the following grounds: establish his natural filiation with the husband,
albeit illegitimate, the child is not filiated or
(1) That it was physically impossible for the related to the wife.
husband to have sexual intercourse with his
wife within the first 120 days of the 300 days In Concepcion v. Court of Appeals, G.R. No.
which immediately preceded the birth of the 123450, August 31, 2005, 468 SCRA 438,
child because of: where the wife bigamously married another
and a child was born in the said bigamous
(a) the physical incapacity of the husband union and where the bigamous marriage was
to have sexual intercourse with his declared null and void, the Supreme Court
wife; ruled that the child actually born in the second
(b) the fact that the husband and wife voided union was in effect born of the wife in
were living separately in such a way the first subsisting marriage and therefore, in
that sexual intercourse was not the eyes of the law, the father of the child was
possible; or the first husband of the wife. It was also
(c) serious illness of the husband, which asserted that the birth certificate of the child
absolutely prevented sexual stating the name of the second husband as the
intercourse; father created a presumption of fact which
should have been rebutted, but this contention
(2) That it is proved that for biological or was rejected by the Supreme Court by stating
other scientific reasons, the child could not that in case of conflict between a presumption of
have been that of the husband, except in the law that a child born inside a valid marriage is
instance provided in the second paragraph of legitimate and a presumption of fact arising from
Article 164; or the statement of filiation in a birth certificate, the
presumption of law will prevail.
WHAT IS THE DIFFERENCE BETWEEN
AUTHORIZATION AND RATIFICATION?

Authorization is given before the artificial

insemination.
Ratification is given after artificial insemination
but before the birth of the child. If ratification is
made after the birth of the child, the latter is
illegitimate.