Support may be demanded from an erring spouse pending litigation, specifically during the following proceedings: (i) legal separation, (ii) declaration of nullity of marriage, and (iii) annulment. The support of the innocent spouse and common children shall be obtained from the properties of the absolute community or conjugal partnership.
According to the Supreme Court in Reyes vs. Ines-Luciano (G.R. No. L-48219), support pendente lite may be awarded without determining the full merits of the pending action. “Mere affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.”
Under the Family Code of the Philippines, the amount of the support should be in proportion to the resources or means of the giver and to the necessities of the recipient. The support may be increased or reduced proportionately, according to the increases or reduction of necessities of the recipient and the resources or means of the person obliged. The obligation to give support is 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 extrajudicial demand.
Support must be demanded and the right to it established before it becomes payable. For the right to support does not arise from the mere fact of relationship, even from 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. As to how the obligation to support can be performed, Article 204 of the Family Code provides that the person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has the right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto, such as the strained relationship between the parties.
The right to receive support as well as money or property obtained as such support shall not be levied upon on attachment or execution. However, in case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution.
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