You may remember me, since I already wrote you before. The biological father of my child signed the latter’s birth certificate at the time he was born, so he is using the former’s surname, but he left us four months after our child’s birth. It has been six years since we last saw him. He never gave support at all. He never even reached out to us to give financial support. Can I still file an action for support now? Can he also be made to pay for support for all the years that he did not provide any for our child?
We submit that your son has the right to financial support from his biological father if he needs the same for his sustenance, dwelling, clothing, medical attendance, education and transportation pursuant to Article 195 in relation to Article 194 of the Family Code of the Philippines.
Accordingly, your son may demand support from his father. This may be done in writing and extra-judicially. If he is still a minor, you may demand on his behalf. Alternatively, you and/or your son may demand judicially by filing an action for support against his father. The amount of support which you may seek must be in proportion to the necessities of your son as well as to the resources or means of his father (Article 201, Ibid.).
The payment of support, however, shall only be made by his father from the time when the demand, whether judicially or extra-judicially, has been made. This is the clear provision of Article 203 of the code: “The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. x x x” (emphasis supplied)
Insofar as seeking payment for support for all the years that he did not provide any, we submit a qualified answer. If you and/or your son had demanded, judicially or extra-judicially, in the past for such support and he failed or refused to provide the same, then payment may still be insisted. But if no demand was made, then your son’s father cannot be made to pay for those past years. We find the ruling of the Supreme Court in the case of Jocson vs. The Empire Insurance Company et al. (G.R. No. L-10792, April 30, 1958) applicable to your case:
“x x x Support does include what is necessary for the education and clothing of the person entitled thereto (Art. 290, New Civil Code). But support must be demanded and the right to it established before it becomes payable (Art. 298, New Civil Code; Marcelo v. Estacio, 70 Phil., 215). For the right to support does not arise from the mere fact of relationship, even from the relationship of parents and children, but ‘from imperative necessity without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded.’” (Civil Code of the Philippines, Annotated, Tolentino, Vol. 1, p. 181, citing 8 Manresa 685). x x x” (emphasis supplied)
Nevertheless, if a stranger or a third person provided support for your son, the former may demand payment in consonance with Articles 206 and 207 of the Family Code:
“Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed.
Art. 207. When 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. This article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed.”
It bears stressing that the action for such reimbursement must be commenced within six (6) years from the time such support is given to the child. This is because the resulting relationship between the stranger or third person and the person obliged to give support is a quasi-contract (Persons and Family Relations, Fourth Edition 2004, by Melencio S. Sta. Maria, Jr., p. 747), and actions arising from quasi-contracts must be commenced within the six-year prescriptive period (Article 1145 (2), New Civil Code of the Philippines).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com