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Can spurious mates be ejected from spurious manses?
(Article published in the June 4, 2001 issue of TODAY, Business Section)

Philippine family law took a big step forward when the Family Code (one of the few laws that President Corazon Aquino promulgated as head of the revolutionary government in the wake of EASA I) abolished the distinctions made by the 1950 Civil Code among illegitimate children. In one bold stroke, gone were the esoteric terms and resulting injustice of "acknowledged natural child" (do children need to be acknowledged as natural?), "natural child by legal fiction" (which is the legal fiction, the child? or that he is natural?), and "spurious child" (is that a fake child?). Starting August 3, 1988, the Family Code’s effectivity date, all illegitimate children are treated equal. Purely and simply, illegitimate.

But two steps backwards were taken by the Family Code when it introduced into the law a new chapter entitled "Property Regime of Unions Without Marriage". Aside from the use in its title of the obvious oxymoron "union without marriage", Chapter 7 of Title IV makes a dubious distinction between spurious spouses, i.e. between those living together without benefit of marriage but both capacitated to marry each other and those who are not eligible to get married. The law is soft on the former but harsh on the latter, when, at core, what they are doing is exactly the same. Both are living like married couples without being one.

Before the Family Code, the rule written in the Civil Code was simple. Art. 144 provides "when a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either of them or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership". In short, what was his is his, what was hers is hers; what is theirs is only those they earned, acquired, or worked for together.

The Supreme Court, however, ruled that Art. 144 applies only when the man and woman are not incapacitated to marry each other (Juaniza v. Jose, 89 SCRA 306 and a number of other cases) or to a situation where the marriage is void (Apagapy v. Palang, 276 SCRA 340). This judicial reading into Art. 144 of a qualification that is not in the text resulted in what Court of Appeals Justice and authority in family law Alicia V. Sempio-Diy, called a hiatus. No rule was in place for coitus between a man and a woman incapacitated to marry each other.

The Family Code’s Chapter 7, Title IV, fills the vacuum with a vengeance. The first of two articles, Art. 147, follows the thrust of Art. 144. Accepting the judicial embellishment of Art. 144 of the Civil Code, Art. 147 makes co-ownership the regime that controls the property of a man and a woman who, being capacitated to marry each other, nevertheless live together without benefit of marriage or under a void marriage.

Their wages and salaries are owned by them in equal shares, regardless of whose labor they were fruits of. Property they acquire, in the absence of contrary evidence, are presumed obtained by joint efforts, work or industry, and therefore equally owned. And to the party who did not actually participate in the acquisition, the law gives a bonus. Efforts in the care and maintenance of the family and household are sufficient contribution to make that party a co-owner. Such are the rewards of living together as husband and wife without marrying each other even if nothing other than fear of commitment prevents the couple from getting married.

For "cases of cohabitation not falling under the preceding article", however, such as the situation of former President Joseph Ejercito Estrada who is not capacitated to marry the loves of his life after the "doctora ng masa," the law turns vindictive. Article 148 grants the benefit of co-ownership only on property "acquired by both parties through their actual joint contribution".

Contributions in the form of moral inspirations in character, which used to be sufficient ground according to the Supreme Court for considering the existence of co-ownership (Torres v. Yaptinchay, 28 SCRA 489), and the care and maintenance of the family and household, which are recognized inputs determinative of co-ownership under Article 147, are not available to the hapless partner. In fact, property acquired under those circumstances is presumed to be property of the valid marriage. In the case of Erap, his marriage to Senator-elect Loi.

The wrath of the law may not be that painful for Erap’s mistresses, who, after all, may have devised ways to fortify their claim on property they respectively acquired. But not so for a woman whose case was decided recently by the Supreme Court (Tumlos v. Fernandez, G.R. No. 137650, April 12, 2000).

A married man cohabited with a woman for about ten years and in the course of their living together acquired a love nest where the woman lived with their two children. Other than collecting the rentals from the other apartments purchased by the two of them, the woman could present no proof that she contributed anything to the acquisition of the property. When the relationship ended, the man, who had the nerve to accuse the woman of unfaithfulness, and his legal wife sought to eject mother and children from the premises. The mother claimed she was co-owner based on her cohabitation with the man.

The Supreme Court had to rule against mother and children precisely because Article 148 grants co-ownership only when there is actual contribution. The care and maintenance given to the family and household, which are credited in favor of a non-contributing partner in a union where parties are capacitated to marry each other, are completely ignored. So was the woman’s labor in collecting rent from the other units in the apartment. Coldly pronounced by the Supreme Court, " nothing in Article 148 of the Family Code provides that the administration of the property amounts to a contribution in its acquisition".

The courts have yet to announce what rational principle justifies the unequal treatment of two substantially identical situations. But Justice Sempio-Diy opines: "The Family Code…would like to encourage the parties to legalize their union some day and is just smoothing out the way until their relationship ripens into a valid union". But then, why pamper a couple who could get married but deliberately decide not do so? Is it not more reasonable to extend, at the very least, the same treatment to those who could not get married because, the law itself, makes it unlawful for them to do so? All of Erap’s mistresses it can be assumed, would have been willing to marry Erap (at least while he was in office) and Erap at that time was prepared to marry them, if the law permitted it. They are, therefore, more to be admired and rewarded by law than those who can but do not marry each other.

Now is the time for all of Erap’s men elected to the incoming Congress to come to the aid of their master’s damsels in distress. Quick! amend Article 148 before my friend Rene Saguisag, on behalf of Senator-elect Loi, files a case to eject them from Erap’s mansions.