COMMENTARY
••.'•
The presumptive legitimes
of children in annulled marriages
T
he Family Code spawned a lot of new
provisions on family relations, which were not
previously found in the Civil Code of 1950.
One of which is the provision for the delivery of the
presumptive legitimes (or "pamana" in the
vernacular) to the children of annulled marriages.
Article 50 provides that "the final judgment in such
cases 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."
What exactly is the meaning of legitime? The Civil
Code (Art.886) defines it as "that part of the testator's
(the one making a will) property which he cannot
dispose of because the law reserved it for certain heirs,
who are therefore called compulsory heirs."
Article 51 further adds that the presumptive legitime
' 'shall be delivered in cash, property or sound securities,
unless the parties, by mutual agreement judicially
approved, had already provided for such matters."
How much then is the legitime of legitimate children?
Article 888 of the Civil Code provides that the share of
the legitimate children in the estate of the parents is one half of the entire net estate. The illegitimate child gets
one-half of the share of a legitimate child.
The Family Code further mandates that judgment
on the nullity of the marriage and the delivery of the
presumptive legitimes shall be recorded in the civil
registry and the Register of Deeds, otherwise it shall
not affect third persons. To make sure that these
requirements are complied with, the Family Code
further provides in Article 53 that a subsequent
marriage is null and void if the judgment on
annulment and the delivery of presumptive legitimes
are not recorded with the civil registry and the
Register of Deeds.
Spirit and intent
What was the spirit and intent of the law when the
framers of the Family Code decided to include the
delivery of the presumptive legitime as part of the
annulment package? It appears that the members of
the Family Code committee led by the late illustrious
Supreme Court Justice JBL Reyes were inspired by
the French laws where the children of annulled
marriages were given their legitimes after the parents
obtained a decree of annulment. A cursory study of
the minutes of the Family Code committee dated July
28,1984 and August 11,1984 reveal that the interest of
the framers of the Family Code was "to protect the
interests of the children of the first marriage."
A tale has oftentimes been told of family disputes
arising from the "mana" of the children of the first
marriage being diminished (or completely obliterated)
because the children of the second marriage whom the
deceased parent favored had participated in the
inheritance of properties acquired from property
relations in the first marriage. To prevent all of these,
the partition of the conjugal or community properties
60 February 2, 2004 • Philippine Graphic
The
Franco Files
Article 888 of
the Civil Code
provides that
the share of the
legitimate
children in the
estate of the
parents is
one-half of the
entire net
estate. The
illegitimate
child gets
one-half of the
share of a
legitimate
child.
of the first marriage during the annulment proceedings
must also provide for the delivery of the presumptive
legitimes of the children of the annulled marriage.
In a case, for example, where a house and lot
was acquired during the first marriage, the legitime
of the legitimate children is one-half of the property.
Their one-half share must be annotated in the title of
the property with Register of Deeds and the other
half shall be divided equally between the spouses
securing an annulment of the marriage. Of course,
there may be other ways of dividing their properties,
if the parties can come into an agreement. But always,
the presumptive legitime of the children must be
delivered either in cash, properties or sound securities.
It is important for couples on the verge of
annulment to bear this provision in mind, particularly
in negotiating which property goes to whom. A case
in point comes to mind where a wife, Marianna del
Rosario, filed for declaration of nullity of marriage
against her husband of 21 years, Eduardo del Rosario.
In the negotiation for the division of properties, the
husband offered to give the family residence,
consisting of two lots located in a posh subdivision
plus the amount of P500,000. But the wife wanted at
least P5 million from the husband in addition to the
family residence. The husband would not budge and
stated that was all he could afford since he also needed
capital for his business in order to sustain the family.
So we went into litigation on the annulment
without having settled the property. In the answer of
the husband, we prayed for the delivery of the
presumptive legitime of the children, which is onehalf of the conjugal property, and the other half should
be divided between the parties. The wife tried to prove
that one-half of the real property (the other lot) as
her exclusive property because her father gave her
P200,000 early in the marriage to buy the second lot.
But she was not able to prove that, as the husband
maintained that he borrowed money from the bank
to be able to purchase the second lot and hence, the
second lot was likewise conjugal.
In the end the decision of the court was to deliver
the presumptive legitime of the children, consisting of
one-half of the real property and the other half was
divided between the parties as their share in the
conjugal property. The wife was not able to get any
sum of money, since her one-fourth share in the
property remains a share annotated at the back of the
title and could only be realized, if and when both parties
agree to sell the property. For the meantime, the
children remain in the family home until such time
when their parents can agree to sell the property and
divide the proceeds—with the children still getting onehalf of the proceeds as their presumptive legitime.
(N.B. To protect the privacy and confidentiality
between attorney and client, the names given are
fictitious. Atty. Franco may be reached at Fajardo Law
Offices, 7th fir. Cityland Condominium 10 Tower 2,
154 H.V.Dela Costa Street, Ayala Avenue North,
Makati City. Tel. Nos. (632) 810-1490; 810-9595;
E-Mail: dffatty2003@yahoo.com). G