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Do my father’s mistress and their illegitimate children have the right to own my father’s properties?

Question:

Do my father’s mistress and their illegitimate children have the right to own my father’s properties? … (Hi, I need a legal advice. Here’s my story... my father bought a land before he married my mother. He and my mother built a house which we currently live. But unfortunately, my father have a mistress and they had two illegitimate children. Can the property/land (where our house was built) be classified as conjugal? The land is named after my father alone. Do the illegitimate children have the right to own the property? What are the things that we need to do (step-by-step procedure)?


Father mistress children right to own properties


Legal Advice/Opinion:


This legal opinion seeks to answer your question as to whether or not your father’s mistress and their children can own the properties of your father.

The mistress could not acquire the properties owned by your father, however, the illegitimate children of your father, though born by reason of an illicit relationship, can acquire portions of the property owned by your father through a contract or by succession provided that said children are acknowledged by the latter as his.

As a rule, the right of the children, legitimate or not as well as that of the legal spouse concerning a "Capital” property or those properties brought about by succession, an exclusive property, is an "INCHOATE” right or in lay man’s term, "a right in waiting”.

The right of the Children and the spouse over said properties accrues only at the time of death of the owner, hence, in the scenario presented, the ownership of said properties pertains exclusively to the father and the right over his properties, absent any contractual or liberal transfer, is acquired only after his death (Art. 777 New Civil Code). In which case, your father has all the rights and incidents of ownership which includes the right to use, abuse, dispose, transfer and recover until its eventual transfer to another.

The mistress on the other hand is prohibited from acquiring any portion of the properties owned by your father through gratuitous transfer or by succession. In Maria B. Ching vs. Joseph C. Goyanko et. Al. docketed as G.R. No. 165879, November 10, 2006, the Supreme Court had occasion to rule, to wit:

"The sale was made by a husband in favor of a concubine after he had abandoned his family and left the conjugal home where his wife and children lived and from whence they derived their support. The sale was subversive of the stability of the family, a basic social institution which public policy cherishes and protects.

Article 1409 of the Civil Code states inter alia that: contracts whose cause, object, or purposes is contrary to law, morals, good customs, public order, or public policy are void and inexistent from the very beginning.

Article 1352 also provides that: "Contracts without cause, or with unlawful cause, produce no effect whatsoever. The cause is unlawful if it is contrary to law, morals, good customs, public order, or public policy."

Additionally, the law emphatically prohibits the spouses from selling property to each other subject to certain exceptions. Similarly, donations between spouses during marriage are prohibited. And this is so because if transfers or conveyances between spouses were allowed during marriage, that would destroy the system of conjugal partnership, a basic policy in civil law. It was also designed to prevent the exercise of undue influence by one spouse over the other, as well as to protect the institution of marriage, which is the cornerstone of family law. The prohibitions apply to a couple living as husband and wife without benefit of marriage, otherwise, "the condition of those who incurred guilt would turn out to be better than those in legal union." Those provisions are dictated by public interest and their criterion must be imposed upon the will of the parties. . .  (Italics in the original; emphasis and underscoring supplied)


Parenthetically, Article 739 of the new Civil Code provides:

"The following donations shall be void:
Xxxx
1. Those made between persons who were guilty of adultery or concubinage at the time of donation;

Those made between persons found guilty of the same criminal offense, in consideration thereof xxx;


On the other hand, the share of a recognized illegitimate child in the estate of his deceased father shall be one half of the shares of a legitimate child per application of Article 176 of the Family Code as amended, which states:
    
"Art. 176 of the Family Code, originally phrased as follows:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force.”


This provision was later amended on March 19, 2004 by RA 925514 which now reads:

"Art. 176. – Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by their father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis supplied.)”

Taking into consideration the facts you mentioned, the following actions are suggested:
  1. Have your father execute a Last Will and Testament which should be probated after his death;
  2. Have your father execute Deeds of Conveyances for the transfer of his properties in your legitimate family’s favor for peace of mind;

Lastly, as regards the house, if it was built during the marriage of your parents, it is conjugal and as such, each of your parents has a presumed 50-50 share of said property.



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