Article 49 of the Family Code: Support and custody while the case is pending
Status: In force
What does Article 49 say?
During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent.
What does it mean in plain language?
Article 49 of the Family Code covers the months or years while a case to declare a marriage void, to annul it, or for legal separation is still in court. Unless the spouses have an adequate written agreement, the court provides for the support of the spouses and the custody and support of their common children. It puts the children's welfare first and sets visitation rights for the other parent.
Support ordered during the case is called support pendente lite (support "while the case is pending").
How does it work in real life?
Rina: no money while the case drags on
Rina files a petition to declare her marriage void. Her husband, who earns the family's income, stops giving money for the household. Under Article 49, Rina may ask the court to order support for herself and their children while the case is pending.
Edgar and Liza: a written agreement
Edgar and Liza signed a written agreement on support and custody when they separated, and both follow it. Article 49 applies when such an agreement is absent or inadequate, so the court may leave their arrangement in place.
Mon: a five-year-old and a ten-year-old
During a legal separation case, the court must decide where Mon's two children stay. It gives paramount consideration to their welfare. It may weigh the choice of the ten-year-old, and the five-year-old stays with the mother unless the court finds compelling reasons.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- Support covers sustenance, dwelling, clothing, medical care, education and transportation, in keeping with the family's financial capacity (Article 194); the amount follows Article 201.
- In nullity cases under Article 40 and annulment cases under Article 45, the final judgment provides for the custody and support of the common children and the division of property (Article 50).
- For amounts and how courts fix them, see how much is child support?
- For young children, see child custody under 7.
What does Article 49 say?
During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent.
For legal separation, Article 62 sends back to the same rule:
During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children.
What does the court decide under Article 49?
- Support of the spouses. Either spouse may receive support while the case is pending.
- Custody of the common children. The court decides who keeps the children for now.
- Support of the children. The court fixes how they are supported during the case.
- Visitation rights. The parent who does not keep the children gets appropriate visitation rights.
A written agreement between the spouses comes first. The court steps in when there is no agreement or when its provisions are not adequate.
How does a court grant support pendente lite?
In Lim-Lua v. Lua (2013), the Supreme Court explained the rule, quoting the Rule on Provisional Orders (A.M. No. 02-11-12-SC):
- The court may grant support pendente lite on its own or upon verified application of a party, guardian or designated custodian, at any time during the proceeding, before judgment.
- Because it is provisional, the court does not need to go fully into the merits of the case first. It is enough that the facts are established by affidavits or other documents in the record.
- Without adequate provisions in a written agreement, the spouses may be supported from the properties of the absolute community or the conjugal partnership.
- The court may award support to either spouse in an amount and for a period it deems just and reasonable based on their standard of living during the marriage.
- For child support, the court may consider the financial resources of both parents and of the child, the child's physical and emotional health and special needs, the standard of living the child is used to, and the non-monetary contributions of the parents. It may direct the deduction of the support from a parent's salary.
The Court also held that only expenses related to the support awarded could be deducted from unpaid support. The cost of two cars for the children and their upkeep, travel expenses and clothing bought by credit card were not credited, because they bore no relation to the support awarded.
How is custody decided while the case is pending?
Article 49 points to the rules on parental authority (Title IX). Article 213 says that when parents separate, the court takes into account all relevant considerations, especially the choice of a child over seven years of age, unless the parent chosen is unfit. It adds that no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
Which Supreme Court rulings are relevant?
Frequently asked questions
Can a spouse get support while an annulment case is pending?
Yes. Article 49 of the Family Code says that during the pendency of the action, and without adequate provisions in a written agreement between the spouses, the court shall provide for the support of the spouses and the custody and support of their common children.
What is support pendente lite?
It is support ordered while the case is pending, before judgment. In Lim-Lua v. Lua (2013), the Supreme Court said the court may grant it at any time during a nullity, annulment or legal separation case, on its own or on verified application, and that facts may be established by affidavits or other documents in the record.
Does Article 49 apply to legal separation?
Yes. Article 62 says the provisions of Article 49 likewise apply to the support of the spouses and the custody and support of the common children during the pendency of the action for legal separation.
Who keeps the children while the case is pending?
The court decides, giving paramount consideration to the moral and material welfare of the children and their choice of the parent they wish to stay with. Article 213 adds that no child under seven shall be separated from the mother unless the court finds compelling reasons. The court also provides visitation rights for the other parent.
Is support pendente lite permanent?
No. It is provisional and lasts while the case is pending. In Lim-Lua, the Court also repeated that a judgment for support does not become final, because it may be changed when needs or means change.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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