I have read some of your articles that have helped me find the answer to some of my questions, but I have one question in mind right now. My husband acknowledged his 4-year-old daughter and uses his surname, but he does not give regular financial support, because he has no work at all. The mother of the child insists that he gives financial support or she will pursue it in court. My husband says that the mother should get the child a bank account, so that when he has money, he can give her. However, the mother does not want that. She is demanding monthly support from my husband, but since he has no work, he cannot make that promise to the mother.
The mother of the child has work, so she can actually support her daughter. Can you give us advice on the matter? I know the Family Code, but how can my husband support them since I am the breadwinner of the family? We have two sons and we just rent. My salary is not enough for this matter. Thank you and God bless!
The Family Code provides for situations when an illegitimate child claims support from his parent even if the said parent is already validly married to another person. The Family Code states:
“Art. 197. For the support of legitimate ascendants, descendants, whether legitimate or illegitimate, and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n)”
According to this provision, when one of the spouses has an illegitimate child and he or she is obliged to support the child, the support shall be taken from his or her separate property. However, if the spouse has no separate property, it can be taken from the absolute community or conjugal partnership, meaning the common property of the spouses. This shall be taken as an advance of the said spouse to the community property and shall be deducted from his or her share when the community property is liquidated.
This means that the mother of the illegitimate child of your husband can still demand support even if your husband does not have any income.
You did not mention in your letter what property regime prevails in your marriage. Please be informed that, Article 91 provides that the absolute community consists of all properties owned by the spouses at the time of celebration of the marriage and thereafter.
It shall not include (1) property acquired by one spouse during the marriage through gift or income, (2) property for personal and exclusive use of the spouses, except for jewelry, (3) property acquired before the marriage by either spouse who has legitimate descendants by a former marriage and its fruits and income.
On the other hand, Article 105 provides that in a conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance. It does not include property (1) brought to the marriage as his or her own, (2) acquired by gratuitous title, i.e. through gift or donation, (3) acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) purchased with exclusive money of the wife or husband.
In both cases, the income of either spouse belongs to the absolute community or the conjugal partnership of gains.
It must be noted that Article 197 speaks of deducting the said amount from the community property or partnership only if financially capable. This means that after deducting the amount necessary for the support of the family and only when there is still available funds can it be made liable to pay support. It is a basic principle of support and embodied in Article 201 of the Family Code that, “[t]he amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.” Articles 195 and 196 enumerate the persons obliged to support each other.
We hope that we were able to enlighten you on the matter. 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 Acosata may be sent to email@example.com