Treatment of Illicit Common Law or De Facto Relationships
For purposes of this article, the common law or de facto relationship in consideration is one which is either bigamous or adulterous, discussed under the lenses of Civil Law concepts. The absence of divorce in the Philippines, and the extreme difficulty and cost of securing an annulment or nullity of marriage have made resort to such types of relationships the norm after their marriage. Regardless of the difficulties, both legal and practical, of maintaining such kinds of relationships, these remain, and often, produce problematic issues, especially when one of the persons to such kind of illicit common law or de facto relationship passes way.
And, while Philippine laws do acknowledge the existence of common law or de facto relationships, very little “concession” is given to the parties to such relationship. This is in view of the public policy enshrined in the Philippine Constitution that the declares marriage as an inviolable social institution[i], and the recognition of the family as the foundation of the nation[ii]. Therefore, very limited recognition is given to such relationships, and most certainly, only for purposes other than inheritance laws. Hence, for purposes of testate and intestate succession, Philippine laws do not recognize illicit forms of common law or de facto relationships.
A. Treatment Under Intestate Succession
If a person dies intestate (the Decedent), meaning, without a Last Will and Testament, the provisions of the Civil Code of the Philippines on intestacy, specifically Articles 960 to 1014, govern. The Civil Code states that in the absence of a Last Will and Testament, the law vests the inheritance in the legitimate and illegitimate relatives of the Decedent, in the surviving spouse, and in the State.[iii]
Aside from enumerating the classes of persons who may inherit from a Decedent ab intestato, the Civil Code also provides for the order of succession or preference of persons called to inherit from the Decedent, as follows:
- Legitimate Children and Descendants[iv]
- Illegitimate Children and Descendants[v]
- Legitimate Parents and Ascendants[vi]
- Illegitimate Parents[vii]
- Surviving Spouse[viii]
- Brothers and Sisters[ix], Nephews and Nieces[x]
- Other Collateral Relatives up to the 5th degree of consanguinity[xi]
- The State[xii]
Let it be noted that the rules of intestate succession under Philippine law are exclusionary, such that the order of preference mentioned above is determinative of which class of heirs have preference to inherit as against another class, or which class of heirs can exclude another.[xiii]
Finally, to become an heir under intestate succession, it is necessary that the person called to inherit is related to the decedent by blood.[xiv] Thus, an heir under intestate succession is either an heir from the direct line (an ascendant or descendant), or from the collateral line (brother, sister, nephew or niece).[xv]
As a matter of fact, when the Civil Code refers to either direct or collateral lines in intestate succession, it refers to actual blood relationship, ancestry and lineage.[xvi] The only exceptions to this rule, are:
a. First, as mentioned above, is when the Decedent has no ascendants, descendants, surviving spouse, brothers, sisters, nephews or nieces, in which case the State succeeds the Decedent as heir. [xvii]
b. Second, in cases of adoption, the adopted child is raised to the status of a legitimate child of the Decedent, with similar rights and privileges, albeit the adopted child is not related by blood to the Decedent.[xviii]
Therefore, it is clear from the provisions of the Civil Code that common law or de facto relationships are not recognized for purposes of inheritance laws in the Philippines. Mindful of the two (2) exceptions above, and subject to the rules of preference and exclusions, the law requires that intestate heirs must be somehow related by blood to the Decedent.
B. Treatment under Testamentary Succession
Even under Testamentary Succession, assuming for the sake of argument that the Decedent left a Last Will and Testament the common law partner as an heir, Philippine law still does not recognize common law or de facto relationships for purposes of inheritance laws.
Article 1028 of the Civil Code provides that those who are disqualified from receiving donations under Article 739 of the Civil Code are also disqualified from receiving testamentary dispositions from the testator in a will.[xix] Among those that are disqualified to inherit are testamentary dispositions made between persons who were guilty of adultery or concubinage at the time the Last Will and Testament was made.[xx]
In the landmark case of Matabuena vs. Cervantes, G.R. No. L-28771, 31 March 1971, the Supreme Court of the Philippines ruled that a donation that is made between persons who are guilty or adultery or concubinage is void for being contrary to public policy:
“If the policy of the law is, in the language of the opinion of the then Justice J.B.L. Reyes of that Court, “to prohibit donations in favor of the other consort and his descendants because of fear of undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law; ‘porque no se engañen despojandose el uno al otro por amor que han de consuno,’ [according to] the Partidas (Part. IV, Tit. Xl, LAW IV), reiterating the rationale ‘Ne mutuato amore invicem spoliarentur’ of the Pandects (Bk 24, Tit. I, De donat, inter virum et uxorem); then there is every reason to apply the same prohibitive policy to persons living together as husband and wife without benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty years bespeaks greater influence of one party over the other, so that the danger that the law seeks to avoid is correspondingly increased. Moreover, as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), it would not be just that such donations should subsist lest the condition of those who incurred guilt should turn out to be better. So long as marriage remains the cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise attach to concubinage.” [Emphasis and underscoring supplied.]
In the case of In The Matter Of The Petition For The Probate Of The Will Of Pete Roxas De Jesus, a.k.a. Peter Roxas De Jesus Or Pedro De Jesus, Maria Teresa Lazatin De Jesus V. Salve Barican De Jesus, Francis Gilbert De Jesus, Maria Jovelyn De Jesus And Jenifer De Jesus,G.R. No. 168733. March 27, 2006, which cited Nepomuceno vs. Court of Appeals, G.R. No. L-62952, 09 October 1985[xxi], the Supreme Court of the Philippines held:
“The argument is untenable. Under Article 739 of the Civil Code, donations made between persons in a state of adultery or concubinage are void. Article 1028 of the same code mandates that the same prohibition be similarly applied to testamentary provisions. Since the courts below have made the factual finding that the marriage between petitioner and the decedent was bigamous, necessarily, petitioner and decedent are considered as having been in a state of concubinage in the context of Article 739. Significantly, a conviction for adultery or concubinage need not be had before the disabilities mentioned in paragraph (1) of Article 739 may effectuate. Thus, in a case for the probate of a will where the testator bequeathed to his bigamous wife the free portion of his estate, this Court ruled, inter alia, that the disposition is void under Article 739 in relation to Article 1028 of the Civil Code.”
C. Treatment under the Family Code
This is, of course, not to say that Philippine laws absolutely do not recognize common law or de facto relationships. On the contrary, common law or de facto relationships are recognized, but for very limited purposes, and most certainly, for purposes other than inheritance laws.
Property relations between persons who are in a common law or de facto relationship are governed by the following provision of the Family Code of the Philippines, to wit:
“Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.[xxii]
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.”
Article 148 discusses the property regime that will govern two persons who are:
- Living together as husband and wife without benefit of marriage, but are not capacitated to marry;
- In an adulterous relationship even if it occurred prior to the effectivity of the Family Code;
- In a bigamous or polygamous marriage;
- In an incestuous void marriage, and
- In a void marriage under Article 38 of the Family Code.
However, where the right to inherit from a person is at issue, Article 148 does not find application. As stated above, the provision deals with properties acquired by the parties to the common law or de facto relationship during the relationship, and their respective rights thereto. The property regime of two persons under a common law or de facto relationship has been likened to a limited co-ownership, as follows: [xxiii]
- The salaries and wages are separately owned by the parties and if any of the spouses is married, his or her salary is the property of the conjugal partnership of gains of such legitimate marriage;
- Property solely acquired by funds of any of the parties belongs to such party exclusively;
- Only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions;
- The respective shares of the parties over properties owned in common are presumed to be equal. However, proofs may be shown to show that their contribution and respective shares are not equal. Without proof of actual contribution by both parties, there can be no presumption of co-ownership and equal sharing (Villanueva vs. Court of Appeals, G.R. No. 143286, 14 April 2004; Rivera vs. Heirs of Romualdo Villanueva, G.R. No. 141501, 21 July 2006).
- The rule and presumption mentioned above shall apply to joint deposits of money and evidences of credit, and
- If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community property or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of Article 147. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
Therefore, Philippine laws do acknowledge the existence of de facto relationships. However, in view of the public policy enshrined in the Philippine Constitution that the declares marriage as an inviolable social institution[xxiv], and the recognition of the family as the foundation of the nation[xxv], very limited recognition is given to such relationships, and most certainly, for purposes other than inheritance laws.
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[i] Article XV: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
[ii] Article XV: The Family. Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
[iii] Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State.
[iv] Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.
[ix] Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.
Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.
Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.
[x] Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant’s brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.
Art. 1007. In case brothers and sisters of the half blood, some on the father’s and some on the mother’s side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.
Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood.
[xi] Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.
Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.
[xii] Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate.
[xiii] Art. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines.
[xiv] Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree.
Art. 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father.
[xv] Art. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor.
[xvi] Art. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth.
[xvii] Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate.
[xviii] Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession;
(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters;
(3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters.
(4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the entire estate; and
(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply.
[xix] Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions.
[xx] Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descedants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.
[xxi] “… Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. …”
[xxii] Art. 147. “… When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.”
[xxiii] Malilin vs. Malilin, G.R. No. 136803, 16 June 2000.
[xxiv] Article XV: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
[xxv] Article XV: The Family. Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.