ADRIAN I. BERNARDOabernardo@me.com

M E M O R A N D U M

Re: Kim Rosa v Butch Cruz

Date: October 15, 2015

This Memorandum discusses the rights of an illegitimate child, liabilities of the biological father, and the consequences of cohabitation between a concubine and her paramour.

I. Facts

Kim Rosa is 7 months pregnant with the child of Butch Cruz. Kim and Butch were in a relationship and cohabitated until three months ago when Butch abandoned Kim. Kim found out after they had seperated that Butch was married while they were living together. Kim was wondering if she can demand Butch to support the child she is bearing and return certain items which he previously borrowed from her apartment: an electric fan, a mini refrigerator, and a pair of slippers which belonged to Kim’s brother. Alternatively, she wants to know if she can demand payment of the value of these items. As for the support, she would like to ask for P7,000.00 per month, starting this month, plus half of the expenses for childbirth. She also wants Butch to pay his agreed equal share in the rent of her apartment for the last three months before he left. According to your client, this share amounts to P21,000.00. She also mentions that Butch has been bugging her to return the pearl earrings, worth P12,000.00, which he gave on their first anniversary together. As she likes the earrings very much, she would like to keep them as much as possible.1

Moreover, while they were living together, Butch and Kim bought a car worth P900,000.00. While the car was registered in Butch’s name, they did not have any particular agreement in the payment and ownership of the car; they equally paid for the down payment but shared in the monthly amortizations depending on how much money they could spare. The car has been fully paid and is in Kim’s possession.”2

1 Cajucom, Legal Research Mid-Term Exam (Block 1-F, 2015-2016).2 Id.

BERNARDO & BERNARDO LAW OFFICES MEMORANDUM

II. Issues

(a) Whether or not Kim Rosa can ask for child support from the father of her unborn child who is Butch Cruz.

(b) Whether or not Kim Rosa can ask back or demand compensation for personal properties that was burrowed from her such as her electric fan, mini refrigerator, and a pair of slippers that belonged to her brother from Butch Cruz.

(c) Whether or not Kim Rosa is entitled for support from Butch Cruz.

(d) Whether or not Kim Rosa can demand compensation for expenses of childbirth.

(e) Whether or not Kim Rosa can demand the paramour’s share in the rental payment of their former place of cohabitation.

(f) Whether or not Kim Rosa can keep the donated personal property such as the pearl earrings from her paramour.

(g) Whether or not Kim Rosa can keep the car that she bought together with her paramour.

III. Conclusion

Butch Cruz must pay for child support of his and Kim Rosa’s conceived child. And also must pay for his share in the medical care of such child from the moment of conception where the rights on the unborn child commences. Butch Cruz must return the burrowed items: electric fan, mini refrigerator, and a pair of slippers that belonged to Kim Rosa’s brother, or compensate Kim Rosa for the same in its monetary equivalents. Butch Cruz must pay for the 3 months rental worth Twenty-One Thousand Pesos (P 21,000).

Kim Rosa’s argument to receive support for herself from Butch Cruz is without merit. Kim Rosa may keep the pearl earrings until an action from Butch Cruz’s wife to recover the same commences. Kim Rosa must compensate Butch Cruz on his actual contributions to the payment of the car after which the ownership of the car shall be transferred to Kim Rosa.

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BERNARDO & BERNARDO LAW OFFICES MEMORANDUM

IV. Discussion

In the matter of rights of an illegitimate unborn child.

The conceived child is considered born for all purposes that are favorable to it.3 It means that the conceived child has all the rights that a born child has. Such rights that a conceived child may claim is Mandatory Support.4 Support is the most sacred and important of all obligations imposed by law and it is imposed by overwhelming reality.5 Support can be claimed by an illegitimate child.6 Support as defined in article 194 of the family code: “comprises everything indispensable for sustenance, dwelling, clothing, and medical attendance” however this may be dependent on the financial capacity of the giver.7

In the matter of personal property.

The following items: electric fan, mini refrigerator, and a pair of slippers are considered personal properties.8 And as this properties were not used during the cohabitation of Kim Rosa and Butch Cruz as evidenced by the fact that they were burrowed by Butch Cruz from the apartment of Kim Rosas, these are considered personal property of Kim Rosa. And under such facts, Kim Rosa may institute an Action to Recover Personal Property.9

In the matter of whether a concubine can demand support from her paramour.

A concubine cannot ask for support from her former paramour. A concubine is not listed among those who are entitled for mandatory support. 10 Kim Rosa which as a person not listed among those in article 195 of the Family Code cannot compel her former paramour for support. However, she can ask for support of their unborn child.11

3 An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE], Act No. 386, art. 40 (1950).4 The Family Code of the Philippines [FAMILY CODE], E.O. No. 209, art. 195 (1988).5 Sumulong v Cembrano, 51 Phil. 719, March 15, 1928.6 FAMILY CODE, art. 195, ¶ 4.7 FAMILY CODE, art. 194.8 CIVIL CODE, art. 416.9 1997 RULES OF CIVIL PROCEDURE, rule 60.10 FAMILY CODE, art. 195.11 Id.

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BERNARDO & BERNARDO LAW OFFICES MEMORANDUM

In the matter of medical expenses incurred from childbirth for an illegitimate child.

The conceived child, even though illegitimate, may claim for mandatory support from the father.12 Expenses from childbirth can be claimed as part of support being of medical necessity of the conceived child.13

In the matter of obligations incurred during cohabitation.

The property relations that govern between the concubine and her paramour is that of Co-ownership.14 During their cohabitation properties acquired by the parties through their actual-joint contributions shall belong to the co-ownership. Wages and salaries by each are exclusive. Then too, are the contributions in the form of care of the home.15 Being part of her paramour’s exclusive contribution for the maintenance of their place of cohabitation, he is liable for those from the time he cohabitated to the termination of the cohabitation.

In the matter of custody of donated personal property to a concubine.

The action to recover donated properties to a concubine vest on the aggrieved spouse.16 Donations made between those guilty of concubinage are considered void.17 However, Butch Cruz is the one demanding back the donated pearl earrings. He cannot compel Kim Rosa to surrender the same. In order for Butch Cruz to recover back the donation he must prove that the donated earrings were worth more than five thousand pesos and that no written document of donation was made for the donation to be made void ab initio.18 In the absence thereof, Kim Rosa may freely continue to possess the earrings until an action by Butch Cruz’s wife to recover commence.19

12 Id.13 FAMILY CODE, art. 194.14 FAMILY CODE, art. 148.15 Carino v Carino, G.R. No. 13259, February 2, 2001.16 CIVIL CODE, art. 739.17 Id.18 CIVIL CODE, art. 74819 CIVIL CODE, art. 739.

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BERNARDO & BERNARDO LAW OFFICES MEMORANDUM

In the matter of ownership of property during cohabitation.

Co-ownership governs the regime under relations between persons in a state of concubine.20 Properties acquired by the parties through their actual joint contribution shall belong to the co-ownership.21 Even though it is only registered under Butch Cruz’s name, the car being bought under the co-ownership regime and therefore governed by the same. Kim Rosa is entitled for her share of the property which is the car based on her actual contribution. Upon the termination of the co-ownership, Butch Cruz is entitled for his share based on his actual joint contribution in the acquisition of the automobile.

V. Recommended Action Action for Child Support which would include expenses to be incurred during

child birth can be initiated by Kim Rosa to take care of the well being of their child. Action to Recover Personal Property can also be initiated by Kim Rosa to recover properties burrowed by Butch Cruz. Action to demand compensation can also be initiated by Kim Rosa to cover Butch Cruz’s share in the rental payment during their cohabitation.

20 CIVIL CODE, art. 148.21 Carino v Carino, G.R. No. 132529, February 2, 2001.

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