Dear PAO,
I would like to inquire whether my marriage to my wife is valid
considering that there is a discrepancy in our marriage certificate. My
wife’s name is “Mary Ann” but her name is recorded in our marriage
certificate as “May Ann”. To my knowledge, she has not noticed this
error yet and I would like to use this as a ground to invalidate my
marriage with her if it is possible. I hope your office can give me an
advice. More power and God bless!
Rap-rap
Dear Rap-rap,
An error in the spelling of your wife’s name in your marriage
certificate cannot and will not invalidate your marriage. The validity
of a marriage is not dependent on the mere error on the spelling of the
names of the parties in a marriage contract. The validity of a marriage
is primarily based on specific legal requirements set by law. These
requirements are called the essential and formal requisites of marriage.
The absence of any of these requirements may result to a void ab intio
marriage (Article 4, Family Code of the Philippines).
For your reference, the following are the essential and formal
requisites of marriage as stated in the Family Code of the Philippines:
“Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age. (53a, 55a)”
In addition to these requisites, the law also provides other bases for a
possible declaration of nullity of marriage which are found in Articles
35, 36, 37, 38, 45 and 53 of the Family Code of the Philippines, none
of which however mentions typographical errors as a ground for
nullification of marriage. Thus, please be reminded that while you may
confirm if the other grounds for nullity of marriage apply to your case,
the said error in the spelling of your wife’s name has no effect on the
validity of your marriage.
Lastly, since the error in the spelling of your wife’s name in your
marriage certificate is obvious to the understanding and can be
corrected by reference to other existing records, it is considered to be
merely a clerical error which can be remedied by filing a petition for
correction of entry before the local civil registry office where your
marriage certificate was registered.
Again, we find it necessary to mention that this opinion is solely
based on the facts you have narrated and our appreciation of the same.
The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public
Attorney’s Office. Questions for Chief Acosta may be sent to
dearpao@manilatimes.net
source: Manila Times Column of Atty Persida Acosta
Wednesday, December 25, 2013
Tuesday, December 10, 2013
Court order not needed for civil registrar to correct clerical error in birth certificate
Dear PAO,
I would like to ask if there is any probability that I can change my surname into my father’s surname. I am now using my mother’s surname. When I was born they were not yet married, because my father had an ongoing petition from my grandparents in the USA. When I was two years old, Papa was diagnosed with cancer and decided to marry my mother.
The problem is, my mom’s surname in their marriage contract was misspelled as “Villacorta” instead of “Villanueva”. In my birth certificate though, my father was able to sign as my father. I am really hoping that you will help me with my inquiry. If ever there is a way to do this, may I know the procedure? Thank you.
Sincerely,
OPZ
Dear OPZ,
Based on your letter, four facts may be established: First, you were born before your parents were married, and the only reason your parents were not yet married was because your father had an ongoing petition in the United States of America (USA). Second, your father was able to acknowledge you as his child in your birth certificate. Third, soon after, your parents eventually got married. Fourth, your mother’s surname was misspelled in the marriage contract.
We strongly advise that your mother should have her surname corrected in her marriage certificate, so there will be no question when you apply for the use of your father’s surname. Republic Act (R.A.) No. 9048 authorizes the city or municipal civil registrar to correct a clerical or typographical error in an entry without need of a judicial order. If it is evident in their marriage certificate that the misspelling was clearly a typographical or clerical error, then she can avail of this remedy. Otherwise, she must file a petition in court for the correction of her surname.
Since your parents had no legal impediment at the time of your birth and they subsequently got married, you are considered as a legitimated child. A legitimated child is similar to a legitimate child, except for the fact that you were born prior to your parents’ marriage. Article 177 of the Family Code defines legitimated children as those “conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other…” Therefore, as far as the law is concerned, you were legitimated when your parents got married.
For you to enjoy all the benefits of a legitimated child, including the right to use the surname of your father, the fact of legitimation must be recorded in your certificate of live birth. In order to do this, you must submit the following requirements to the civil registrar where your birth was recorded:
(1) Certificate of Marriage of your parents;
(2) Your Certificate of Live Birth;
(3) Acknowledgment, but you do not need this, as you were acknowledged by your father in your birth certificate; and
(4) Affidavit of legitimation executed by both parents.
Once you submit all the requirements and the civil registrar sees that everything is in order, your original name appearing in your birth certificate shall not be erased or deleted.
Instead, an annotation in the remarks space stating “Legitimated by Subsequent Marriage” indicating the family name which you shall bear because of legitimation shall be written.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
source: Manila Times
I would like to ask if there is any probability that I can change my surname into my father’s surname. I am now using my mother’s surname. When I was born they were not yet married, because my father had an ongoing petition from my grandparents in the USA. When I was two years old, Papa was diagnosed with cancer and decided to marry my mother.
The problem is, my mom’s surname in their marriage contract was misspelled as “Villacorta” instead of “Villanueva”. In my birth certificate though, my father was able to sign as my father. I am really hoping that you will help me with my inquiry. If ever there is a way to do this, may I know the procedure? Thank you.
Sincerely,
OPZ
Dear OPZ,
Based on your letter, four facts may be established: First, you were born before your parents were married, and the only reason your parents were not yet married was because your father had an ongoing petition in the United States of America (USA). Second, your father was able to acknowledge you as his child in your birth certificate. Third, soon after, your parents eventually got married. Fourth, your mother’s surname was misspelled in the marriage contract.
We strongly advise that your mother should have her surname corrected in her marriage certificate, so there will be no question when you apply for the use of your father’s surname. Republic Act (R.A.) No. 9048 authorizes the city or municipal civil registrar to correct a clerical or typographical error in an entry without need of a judicial order. If it is evident in their marriage certificate that the misspelling was clearly a typographical or clerical error, then she can avail of this remedy. Otherwise, she must file a petition in court for the correction of her surname.
Since your parents had no legal impediment at the time of your birth and they subsequently got married, you are considered as a legitimated child. A legitimated child is similar to a legitimate child, except for the fact that you were born prior to your parents’ marriage. Article 177 of the Family Code defines legitimated children as those “conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other…” Therefore, as far as the law is concerned, you were legitimated when your parents got married.
For you to enjoy all the benefits of a legitimated child, including the right to use the surname of your father, the fact of legitimation must be recorded in your certificate of live birth. In order to do this, you must submit the following requirements to the civil registrar where your birth was recorded:
(1) Certificate of Marriage of your parents;
(2) Your Certificate of Live Birth;
(3) Acknowledgment, but you do not need this, as you were acknowledged by your father in your birth certificate; and
(4) Affidavit of legitimation executed by both parents.
Once you submit all the requirements and the civil registrar sees that everything is in order, your original name appearing in your birth certificate shall not be erased or deleted.
Instead, an annotation in the remarks space stating “Legitimated by Subsequent Marriage” indicating the family name which you shall bear because of legitimation shall be written.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
source: Manila Times
Sunday, December 1, 2013
Grounds to declare marriage void
Dear PAO,
I married last July 7, 2011. I was 24 years old at that time, but I was not able to get parental advice from my parents. Also, we did not secure a marriage license. Instead, my wife and I executed an affidavit which states that we have been living together as husband and wife for five years. This is not true because we married less than one year after we met. Can I have my marriage annulled or declared void?
Michael
Dear Michael,
You mentioned two defects in your marriage. The first is lack of parental advice which is required by Article 15 of the Family Code for persons marrying between the ages of twenty-one (21) and twenty-five (25). However, its absence is not a valid cause to have your marriage annulled or declared void. Lack of parental advice is not mentioned in Article 45 of the Family Code which enumerates the grounds for annulment of marriage. Neither is parental advice an essential or formal requisite of marriage, whose absence renders the marriage void ab initio. The rule is settled that every intendment of the law or fact leans toward the validity of the marriage, the indissolubility of the marriage bonds (Sevilla vs. Cardenas, G.R. No. 167684, July 31, 2006). The annulment or declaration of nullity of marriage is only an exception to this rule allowed in certain instances specifically provided by law.
The second defect in your marriage concerns the falsity of the period of cohabitation stated in your affidavit of cohabitation. The general rule is that the future spouses are required to secure a marriage license before their marriage. Without a marriage license, which is a formal requisite of marriage, the marriage would be void. There are exceptions to this rule, one of which is found in Article 34 of the Family Code which states that no marriage license is necessary if the future spouses have lived together as husband and wife for at least five (5) years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths.
It should be pointed out that under this exception, what exempts the future spouses from the requirement of securing a marriage license is not the execution of the affidavit of cohabitation, but rather, the fact of cohabitation for at least five (5) years without legal impediment to marry each other. Its purpose is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license, which could discourage such persons from legitimizing their status (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000 citing The Report of the Code Commission). The affidavit merely sets forth such fact, which if found false would only be a mere scrap of paper, without force and effect (Republic vs. Dayot, G.R. No. 175581, March 28, 2008).
You mentioned that you married your wife less than one (1) year after you met her. If this is true, then it is impossible to comply with the requirement of 5-year cohabitation. Therefore, the exception does not apply and you are required to secure a marriage license. Because there is none, your marriage is void ab initio. You may file a petition in court to have your marriage declared void.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. PERSIDA ACOSTA
I married last July 7, 2011. I was 24 years old at that time, but I was not able to get parental advice from my parents. Also, we did not secure a marriage license. Instead, my wife and I executed an affidavit which states that we have been living together as husband and wife for five years. This is not true because we married less than one year after we met. Can I have my marriage annulled or declared void?
Michael
Dear Michael,
You mentioned two defects in your marriage. The first is lack of parental advice which is required by Article 15 of the Family Code for persons marrying between the ages of twenty-one (21) and twenty-five (25). However, its absence is not a valid cause to have your marriage annulled or declared void. Lack of parental advice is not mentioned in Article 45 of the Family Code which enumerates the grounds for annulment of marriage. Neither is parental advice an essential or formal requisite of marriage, whose absence renders the marriage void ab initio. The rule is settled that every intendment of the law or fact leans toward the validity of the marriage, the indissolubility of the marriage bonds (Sevilla vs. Cardenas, G.R. No. 167684, July 31, 2006). The annulment or declaration of nullity of marriage is only an exception to this rule allowed in certain instances specifically provided by law.
The second defect in your marriage concerns the falsity of the period of cohabitation stated in your affidavit of cohabitation. The general rule is that the future spouses are required to secure a marriage license before their marriage. Without a marriage license, which is a formal requisite of marriage, the marriage would be void. There are exceptions to this rule, one of which is found in Article 34 of the Family Code which states that no marriage license is necessary if the future spouses have lived together as husband and wife for at least five (5) years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths.
It should be pointed out that under this exception, what exempts the future spouses from the requirement of securing a marriage license is not the execution of the affidavit of cohabitation, but rather, the fact of cohabitation for at least five (5) years without legal impediment to marry each other. Its purpose is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license, which could discourage such persons from legitimizing their status (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000 citing The Report of the Code Commission). The affidavit merely sets forth such fact, which if found false would only be a mere scrap of paper, without force and effect (Republic vs. Dayot, G.R. No. 175581, March 28, 2008).
You mentioned that you married your wife less than one (1) year after you met her. If this is true, then it is impossible to comply with the requirement of 5-year cohabitation. Therefore, the exception does not apply and you are required to secure a marriage license. Because there is none, your marriage is void ab initio. You may file a petition in court to have your marriage declared void.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. PERSIDA ACOSTA
Friday, November 15, 2013
Amount of parental support to child not fixed by law
Dear PAO,
I am an OFW currently working overseas. My wife and I have decided to end our relationship. We are not yet legally separated because I was advised that whoever files an annulment case will be the one to shoulder the expenses. Is this true?
I would like to ask also if I can only give half of my salary. I am receiving P40,000 per month. My wife and I don’t have an agreement as to how much I will be sending my children as support.
Romy
Dear Romy,
It is unfortunate that your relationship with your wife ended in a separation. Be that as it may, even if you are physically separated from each other, your marriage is still subsisting. If anyone of you would like to file a case to have you marriage annulled or declared null and void, as the case may be, that spouse will be the one to defray for the expenses needed in litigating the case. Should the other spouse participate in the case, he/she too may incur expenses for engaging the services of a lawyer, among others.
Insofar as the amount of support you are obliged to give to your children is concerned, the law does not fix the amount thereof. What the law provides is that support shall be given based on the capacity of the giver and the needs of the recipient. This is clearly provided by Article 201 of the Family Code of the Philippines, to wit:
“Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.”
Thus, in the absence of an agreement or for failure of you and your wife to agree on the amount of the support you ought to give your children, it is the court that has the authority to adjudicate the appropriate amount of support that you are going to give to your children, based on the above provision of the law.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of Atty Persida Acosta
I am an OFW currently working overseas. My wife and I have decided to end our relationship. We are not yet legally separated because I was advised that whoever files an annulment case will be the one to shoulder the expenses. Is this true?
I would like to ask also if I can only give half of my salary. I am receiving P40,000 per month. My wife and I don’t have an agreement as to how much I will be sending my children as support.
Romy
Dear Romy,
It is unfortunate that your relationship with your wife ended in a separation. Be that as it may, even if you are physically separated from each other, your marriage is still subsisting. If anyone of you would like to file a case to have you marriage annulled or declared null and void, as the case may be, that spouse will be the one to defray for the expenses needed in litigating the case. Should the other spouse participate in the case, he/she too may incur expenses for engaging the services of a lawyer, among others.
Insofar as the amount of support you are obliged to give to your children is concerned, the law does not fix the amount thereof. What the law provides is that support shall be given based on the capacity of the giver and the needs of the recipient. This is clearly provided by Article 201 of the Family Code of the Philippines, to wit:
“Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.”
Thus, in the absence of an agreement or for failure of you and your wife to agree on the amount of the support you ought to give your children, it is the court that has the authority to adjudicate the appropriate amount of support that you are going to give to your children, based on the above provision of the law.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of Atty Persida Acosta
Tuesday, October 29, 2013
Father has to recognize child as his prior to support
Dear PAO,
I just want to know the rights of my minor child. His father and I are not married because he already has a wife and they, too, have children. His wife warned me that she will take legal actions against me, but I never intend to cause any trouble to them. I just want him to provide what is due to our child. What should I do?
Yannie
Dear Yannie,
A child, whether he or she is legitimate or illegitimate, has the right to be supported by his or her parents. However, it is necessary that his or her filiation with the parent he or she is seeking support from be established first in order for the latter to be legally obligated to provide such support.
There are several ways of establishing filiation between a parent and a child. As provided for under Article 172 of the Family Code of the Philippines, “The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws.” As for illegitimate children, they may establish their illegitimate filiation in the same way and on the same evidence as legitimate children (Article 175, Family Code of the Philippines).
In the situation that you have presented before us, it is essential for you to prove first and foremost that your child has been acknowledged or recognized by his or her father through any of the means stated above. If you are able to establish their illegitimate filiation, you may demand support from him by verbally communicating to him the everyday expenditures of your child. You may also consider giving him a formal demand letter if verbal plea proves futile.
If he has the capacity to answer for the financial needs of your child but refuses to provide the same despite your repeated demands, you may consider filing an action for support before the Regional Trial Court of the place where you and your child reside. The court will determine whether your child legally is entitled to support, and if so, the amount to be granted which is fair and just, taking into consideration all the necessities of your child as well as the resources of his father.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
I just want to know the rights of my minor child. His father and I are not married because he already has a wife and they, too, have children. His wife warned me that she will take legal actions against me, but I never intend to cause any trouble to them. I just want him to provide what is due to our child. What should I do?
Yannie
Dear Yannie,
A child, whether he or she is legitimate or illegitimate, has the right to be supported by his or her parents. However, it is necessary that his or her filiation with the parent he or she is seeking support from be established first in order for the latter to be legally obligated to provide such support.
There are several ways of establishing filiation between a parent and a child. As provided for under Article 172 of the Family Code of the Philippines, “The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws.” As for illegitimate children, they may establish their illegitimate filiation in the same way and on the same evidence as legitimate children (Article 175, Family Code of the Philippines).
In the situation that you have presented before us, it is essential for you to prove first and foremost that your child has been acknowledged or recognized by his or her father through any of the means stated above. If you are able to establish their illegitimate filiation, you may demand support from him by verbally communicating to him the everyday expenditures of your child. You may also consider giving him a formal demand letter if verbal plea proves futile.
If he has the capacity to answer for the financial needs of your child but refuses to provide the same despite your repeated demands, you may consider filing an action for support before the Regional Trial Court of the place where you and your child reside. The court will determine whether your child legally is entitled to support, and if so, the amount to be granted which is fair and just, taking into consideration all the necessities of your child as well as the resources of his father.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
Monday, October 21, 2013
Proof of child filiation needed before grant of parental support
Dear PAO,
I was impregnated by a man who is already married. He used to provide for the financial needs of our child. But after several months from the birth of our child, he simply stopped giving us money. Is there anything I can do that can compel him to provide support? Will there be any concern since he did not sign in the birth certificate of our child? Can I also have his professional license revoked or cancelled?
HTM
Dear HTM,
There is no question that a parent is obliged to provide support for his or her child. This obligation is clearly provided for under Article 195 of the Family Code of the Philippines, which reads: “Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: x x x (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; x x x”
However, we would like to emphasize that it is necessary that the filiation of the child and the parent concerned be proven in order that the former can lawfully invoke his or her right to such support from the latter. Under the law, illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as will be used in establishing legitimate filiation, that is, through: (1) the record of birth as appearing in the civil register or a final judgment, which indicates the recognition of the parent concerned of their illegitimate filiation; (2) admission of illegitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned; (3) the open and continuous possession of the status of an illegitimate child; or (4) any other means allowed by the Rules of Court and special laws (Article 175 in relation to Article 172, Family Code of the Philippines).
In the situation that you have presented before us, you may demand from the father of your child to provide financial support which would answer for your child’s needs, whether it be for his or her sustenance, dwelling, clothing, medical attendance, education and transportation.
However, you may find it difficult to assert your child’s right to such support considering that he did not acknowledge their illegitimate relationship in the child’s birth certificate. You should, therefore, be able to establish their filiation through the other means above-stated.
Insofar as your desire to seek for the cancellation of the professional license of the father of your child, we want to emphasize that your concern affects his civil obligation over his child, not an infraction of his duties as a professional. You may only seek for the cancellation or revocation of his license if you can establish that his failure to provide support for the child constitutes a violation of the Code of Ethics of his particular profession.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty Persida Acosta
I was impregnated by a man who is already married. He used to provide for the financial needs of our child. But after several months from the birth of our child, he simply stopped giving us money. Is there anything I can do that can compel him to provide support? Will there be any concern since he did not sign in the birth certificate of our child? Can I also have his professional license revoked or cancelled?
HTM
Dear HTM,
There is no question that a parent is obliged to provide support for his or her child. This obligation is clearly provided for under Article 195 of the Family Code of the Philippines, which reads: “Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: x x x (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; x x x”
However, we would like to emphasize that it is necessary that the filiation of the child and the parent concerned be proven in order that the former can lawfully invoke his or her right to such support from the latter. Under the law, illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as will be used in establishing legitimate filiation, that is, through: (1) the record of birth as appearing in the civil register or a final judgment, which indicates the recognition of the parent concerned of their illegitimate filiation; (2) admission of illegitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned; (3) the open and continuous possession of the status of an illegitimate child; or (4) any other means allowed by the Rules of Court and special laws (Article 175 in relation to Article 172, Family Code of the Philippines).
In the situation that you have presented before us, you may demand from the father of your child to provide financial support which would answer for your child’s needs, whether it be for his or her sustenance, dwelling, clothing, medical attendance, education and transportation.
However, you may find it difficult to assert your child’s right to such support considering that he did not acknowledge their illegitimate relationship in the child’s birth certificate. You should, therefore, be able to establish their filiation through the other means above-stated.
Insofar as your desire to seek for the cancellation of the professional license of the father of your child, we want to emphasize that your concern affects his civil obligation over his child, not an infraction of his duties as a professional. You may only seek for the cancellation or revocation of his license if you can establish that his failure to provide support for the child constitutes a violation of the Code of Ethics of his particular profession.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty Persida Acosta
Tuesday, September 24, 2013
Legitimate children inherit from deceased parents
Dear PAO,
The mother of my cousins was a domestic helper in Singapore for 15 years. Their parents are legally separated for 10 years.
Their mother remarried in Singapore and had a son. After remarrying, their mother and stepfather ran a business. Last year, their mother died. Are my cousins entitled to acquire some properties of their mother?
Bert
Dear Bert,
Your question is anchored on the right of your cousins to inherit from their deceased mother. The law is clear that legitimate children shall inherit from their deceased parents. This is particularly provided by the New Civil Code of the Philippines:
“Art. 978. Succession pertains, in the first place, to the descending direct line.
“Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.
“Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.”
Based on the foregoing provisions, there is no doubt that your cousins are entitled to inherit from their mother. As such, the properties left by their mother or the latter’s estate shall be divided among her heirs, which shall include your cousins, the other children of their mother, if any, and her legal spouse.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of Atty Persida Acosta
The mother of my cousins was a domestic helper in Singapore for 15 years. Their parents are legally separated for 10 years.
Their mother remarried in Singapore and had a son. After remarrying, their mother and stepfather ran a business. Last year, their mother died. Are my cousins entitled to acquire some properties of their mother?
Bert
Dear Bert,
Your question is anchored on the right of your cousins to inherit from their deceased mother. The law is clear that legitimate children shall inherit from their deceased parents. This is particularly provided by the New Civil Code of the Philippines:
“Art. 978. Succession pertains, in the first place, to the descending direct line.
“Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.
“Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.”
Based on the foregoing provisions, there is no doubt that your cousins are entitled to inherit from their mother. As such, the properties left by their mother or the latter’s estate shall be divided among her heirs, which shall include your cousins, the other children of their mother, if any, and her legal spouse.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of Atty Persida Acosta
The Anti-bullying Law
Schools, their
administrators and teachers are the special parents of minor children
while they are in school or attending school activities. As special
parents, they may be made liable for acts or omissions of students or
pupils which cause injury or damage to another. The obligation to look
after minor children and ensure their safety while in school was imposed
on schools, administrators and teachers by the Family Code of the
Philippines which took effect on August 4, 1988.
Thus, parents who no longer have control over the acts of their minor children when their custody is with the school are relieved of responsibility for the acts of their minor children that result in injury or harm to another student or any other person.
The Family Code laid upon the doorstep of schools, administrators and teachers the obligation to shoulder liability for damages caused by minor students while they are in the school’s custody because they become the special parents of minor students. But when a student or pupil is no longer a minor and causes injury to another while in school, who becomes liable for the damage he causes? The law says that if the child is still unemancipated, and living in the parental authority of his parents, then his parents become liable. However, if a student is already an adult and no longer living with his parents he, himself, becomes liable for any injury or harm he may cause to another.
The obligation of schools over their students was expanded even further by the Anti-Bullying Act of 2013 signed into law by President Benigno S. Aquino III on September 12. This law states that all elementary and high school principals and administrators must craft and adopt policies against bullying and must ensure that they are implemented. The new law mandates all elementary and high schools to immediately respond to and investigate when bullying is reported. Apart from imposing disciplinary sanctions on the perpetrator, they are directed to report the matter to the police if the bullying amounted to a crime such as infliction of physical injuries, grave threats, slander, or others. Then they are obliged to carry out a rehabilitation program for the bully and exert efforts to involve the bully’s parents.
Bullying can come in many forms like taunting a classmate either orally or through text messages or by any other electronic means; employing unwelcome physical acts such as pushing, shoving, punching, headlocks, kicking, tickling and using any object as a weapon to cause harm. Bullying can also be committed by the uttering of slanderous statements or accusations that causes emotional stress. Bullying can also be any other act that causes damage to the psyche or emotional well-being of a person.
In many cases of bullying, especially those that are committed continuously over time, while the act may not visibly result in the immediate injury of the victim, the perpetrators and the school may still be liable if no action was taken by the school authorities. In many cases the victim normally still goes home yet, when he can no longer take the bullying, he either falls into depression and can no longer function normally, or takes his own life. Hundreds, if not thousands, of victims of bullying have committed suicide.
Bullying is committed within the school ground itself, places rented by the school for an activity, in its vicinity or periphery, inside a school bus or in bus stops or outside the school through electronic means such s text messages or tweets, etc.
When a school fails to do what is mandated by the Anti-bullying Law, the Department of Education may suspend its authority to operate or be subjected to other sanctions.
Bullying may not seem as prevalent in the Philippines as in the United States, the United Kingdom, Japan or other advanced countries where many cases of suicide have been reported due to bullying by their classmates or schoolmates. But the problem does exist and the numbers are growing. The Education Department has reported recently that a majority of cases involving child abuse have turned out to be the direct consequence of bullying in school.
The responsibility of schools, teachers and administrators is immense. Since they exercise special parental authority over children while they are in their custody, they could be held civilly liable for damages caused by their students, in accordance with the Family Code, and may even be suspended from operating their schools under the Anti-bullying Law.
source: Manila Standard Column Rita Linda Jimeno
Thus, parents who no longer have control over the acts of their minor children when their custody is with the school are relieved of responsibility for the acts of their minor children that result in injury or harm to another student or any other person.
The Family Code laid upon the doorstep of schools, administrators and teachers the obligation to shoulder liability for damages caused by minor students while they are in the school’s custody because they become the special parents of minor students. But when a student or pupil is no longer a minor and causes injury to another while in school, who becomes liable for the damage he causes? The law says that if the child is still unemancipated, and living in the parental authority of his parents, then his parents become liable. However, if a student is already an adult and no longer living with his parents he, himself, becomes liable for any injury or harm he may cause to another.
The obligation of schools over their students was expanded even further by the Anti-Bullying Act of 2013 signed into law by President Benigno S. Aquino III on September 12. This law states that all elementary and high school principals and administrators must craft and adopt policies against bullying and must ensure that they are implemented. The new law mandates all elementary and high schools to immediately respond to and investigate when bullying is reported. Apart from imposing disciplinary sanctions on the perpetrator, they are directed to report the matter to the police if the bullying amounted to a crime such as infliction of physical injuries, grave threats, slander, or others. Then they are obliged to carry out a rehabilitation program for the bully and exert efforts to involve the bully’s parents.
Bullying can come in many forms like taunting a classmate either orally or through text messages or by any other electronic means; employing unwelcome physical acts such as pushing, shoving, punching, headlocks, kicking, tickling and using any object as a weapon to cause harm. Bullying can also be committed by the uttering of slanderous statements or accusations that causes emotional stress. Bullying can also be any other act that causes damage to the psyche or emotional well-being of a person.
In many cases of bullying, especially those that are committed continuously over time, while the act may not visibly result in the immediate injury of the victim, the perpetrators and the school may still be liable if no action was taken by the school authorities. In many cases the victim normally still goes home yet, when he can no longer take the bullying, he either falls into depression and can no longer function normally, or takes his own life. Hundreds, if not thousands, of victims of bullying have committed suicide.
Bullying is committed within the school ground itself, places rented by the school for an activity, in its vicinity or periphery, inside a school bus or in bus stops or outside the school through electronic means such s text messages or tweets, etc.
When a school fails to do what is mandated by the Anti-bullying Law, the Department of Education may suspend its authority to operate or be subjected to other sanctions.
Bullying may not seem as prevalent in the Philippines as in the United States, the United Kingdom, Japan or other advanced countries where many cases of suicide have been reported due to bullying by their classmates or schoolmates. But the problem does exist and the numbers are growing. The Education Department has reported recently that a majority of cases involving child abuse have turned out to be the direct consequence of bullying in school.
The responsibility of schools, teachers and administrators is immense. Since they exercise special parental authority over children while they are in their custody, they could be held civilly liable for damages caused by their students, in accordance with the Family Code, and may even be suspended from operating their schools under the Anti-bullying Law.
source: Manila Standard Column Rita Linda Jimeno
Saturday, July 27, 2013
Any form of violence against women and their children is illegal
Dear PAO,
My husband and I have been separated for several months already. Before he finally left our house, he abused me physically in front of our children. Can I still file a case for violation of RA 9262 against him even if months had passed since he harmed me? I was hesitant to file a complaint against him because I’m afraid that once I do, he will use his influence to take our children away from me.
VV
Dear VV,
The infliction of any form of violence against women and their children is strictly prohibited by law. Violence against women and their children refers to any act or series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, physical violence, sexual violence, psychological violence or economic abuse (Section 3(a), RA 9262).
The physical abuse that you suffered from your husband is clearly a form of violence punishable under Section 5 (a) of Republic Act 9262, to wit:
“SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts:
(a) Causing physical harm to the woman or her child;
Xxx”
You may still file a complaint for violation of RA No. 9262 against your husband even if months had passed since he physically abused you. This shall be filed before the Office of the Prosecutor of the place where he abused you. Forms of violence under Sections 5(a) to 5(f) may be filed within twenty (20) years from the commission of the act (Section 24, RA 9262).
As regards your concern with the deprivation of custody of your children, Section 34 of RA No. 9262 specifically provides that the women-victims of violence shall be entitled to the custody and support of their children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise. Even a victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall the custody of minor children be given to the perpetrator of a crime against a woman who is suffering from Battered Woman Syndrome.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty Persida Acosta
RA 9262 - Anti-Violence Against Women and Their Children Act of 2004
My husband and I have been separated for several months already. Before he finally left our house, he abused me physically in front of our children. Can I still file a case for violation of RA 9262 against him even if months had passed since he harmed me? I was hesitant to file a complaint against him because I’m afraid that once I do, he will use his influence to take our children away from me.
VV
Dear VV,
The infliction of any form of violence against women and their children is strictly prohibited by law. Violence against women and their children refers to any act or series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, physical violence, sexual violence, psychological violence or economic abuse (Section 3(a), RA 9262).
The physical abuse that you suffered from your husband is clearly a form of violence punishable under Section 5 (a) of Republic Act 9262, to wit:
“SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts:
(a) Causing physical harm to the woman or her child;
Xxx”
You may still file a complaint for violation of RA No. 9262 against your husband even if months had passed since he physically abused you. This shall be filed before the Office of the Prosecutor of the place where he abused you. Forms of violence under Sections 5(a) to 5(f) may be filed within twenty (20) years from the commission of the act (Section 24, RA 9262).
As regards your concern with the deprivation of custody of your children, Section 34 of RA No. 9262 specifically provides that the women-victims of violence shall be entitled to the custody and support of their children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise. Even a victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall the custody of minor children be given to the perpetrator of a crime against a woman who is suffering from Battered Woman Syndrome.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty Persida Acosta
RA 9262 - Anti-Violence Against Women and Their Children Act of 2004
Saturday, July 6, 2013
Stepchild entitled to green card despite mother’s fixed marriage
Recently, the Board of Immigration Appeals (BIA) ruled that a child
could receive a green card through a step parent’s petition, even if the
child’s natural parent is not eligible (because the child’s parent had
previously entered into a fixed marriage). This is great news for people
who have children (from previous marriages/relationships) and later
married US citizens while their children are less than 18 years of age,
because even though the parent may not be eligible for a green card, their minor children could still be petitioned.
In that particular case, a US citizen married the child’s mother before the child’s 18th birthday (thus creating a stepchild relationship). The American then filed petitions on behalf of the child’s mother (as his wife), and the child (as a stepchild).
However, the mother had a prior marriage, to a different American citizen, which USCIS concluded was “fixed.” (Under Section 204(c) of the Immigration and Nationality Act, if a person has ever been found to have entered into a fixed marriage, that person is “blacklisted for life,” and no future petition can be approved on his or her behalf). Accordingly, the USCIS denied the spousal petition, and also denied the child’s petition because “the stepparent relationship to the beneficiary was no longer valid.” In other words, because the petition for the child’s mother was denied, USCIS also denied the child’s petition.
The BIA ruled that the plain language of section 204(c) applies only to an alien who sought to be accorded, or was accorded, status as a “spouse,” based on a marriage found to have been entered into for the purpose of evading the immigration law: “We therefore conclude that section 204(c) does not apply to the beneficiary and does not bar the approval of a visa petition filed on his behalf by the petitioner to accord him status as a stepchild.” The fixed marriage ban, therefore, does not apply to anyone other than the alien spouse who entered into the fixed marriage, and should not apply to step children.
If you married a US citizen before your child’s 18th birthday, but for one reason or another, you are not eligible to be petitioned (i.e. because of prior finding of a fixed marriage, criminal conviction, deportation order, etc.), your child may still be petitioned by your US citizen spouse, as a stepchild. However it is important to note that the marriage to the petitioner/stepfather must be “real” and “valid.” In the above case, the mother’s previous marriage was fixed, but this second marriage to the American-petitioner was for love and in good faith.
If your situation is similar to this case, you may want to seek the advice of an attorney who can evaluate your circumstances, and even if you cannot safely be petitioned, maybe there is hope for your child, while you’re still married to, and in love with, your American citizen spouse.
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In that particular case, a US citizen married the child’s mother before the child’s 18th birthday (thus creating a stepchild relationship). The American then filed petitions on behalf of the child’s mother (as his wife), and the child (as a stepchild).
However, the mother had a prior marriage, to a different American citizen, which USCIS concluded was “fixed.” (Under Section 204(c) of the Immigration and Nationality Act, if a person has ever been found to have entered into a fixed marriage, that person is “blacklisted for life,” and no future petition can be approved on his or her behalf). Accordingly, the USCIS denied the spousal petition, and also denied the child’s petition because “the stepparent relationship to the beneficiary was no longer valid.” In other words, because the petition for the child’s mother was denied, USCIS also denied the child’s petition.
The BIA ruled that the plain language of section 204(c) applies only to an alien who sought to be accorded, or was accorded, status as a “spouse,” based on a marriage found to have been entered into for the purpose of evading the immigration law: “We therefore conclude that section 204(c) does not apply to the beneficiary and does not bar the approval of a visa petition filed on his behalf by the petitioner to accord him status as a stepchild.” The fixed marriage ban, therefore, does not apply to anyone other than the alien spouse who entered into the fixed marriage, and should not apply to step children.
If you married a US citizen before your child’s 18th birthday, but for one reason or another, you are not eligible to be petitioned (i.e. because of prior finding of a fixed marriage, criminal conviction, deportation order, etc.), your child may still be petitioned by your US citizen spouse, as a stepchild. However it is important to note that the marriage to the petitioner/stepfather must be “real” and “valid.” In the above case, the mother’s previous marriage was fixed, but this second marriage to the American-petitioner was for love and in good faith.
If your situation is similar to this case, you may want to seek the advice of an attorney who can evaluate your circumstances, and even if you cannot safely be petitioned, maybe there is hope for your child, while you’re still married to, and in love with, your American citizen spouse.
* * *
WEBSITE: www.gurfinkel.com Follow us on Facebook.com/GurfinkelLaw and Twitter @GurfinkelLaw
Four offices to serve you: PHILIPPINES: 8940258 or 8940239; LOS ANGELES; SAN FRANCISCO; NEW YORK: TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)
The shame of secret jails for child prisoners
Afew weeks ago, I visited yet again several child detention centers
and police holding cells around Metro Manila with the Preda Foundation
social workers. We found two small girls, 13 and 14 years of age behind
bars looking out tearfully; and next to their cell was an adult male
prisoner reaching through the steel bars beside them. They were
terrified. The cell of the children had no beds, curtains, toilet, just a
bucket in the corner and no privacy. It was terrible. One had been
charged with stealing food, the other for kidnapping a child. An adult
told her to bring a baby to another place. She was arrested. Immediately
we began legal action to have them released to the Preda Girl’s Home.
In another child detention center on the other side of Metro Manila, we found three small girls, from 6 to 12 years of age, locked in a room with male teenage boys. The place was bare and empty: no beds, chairs, showers, just a single toilet in the corner. It was a depressingly empty detention room.
Preda began negotiations with the Center Head to have the girls taken out of that detention holding room. It was no easy task. They were oblivious of the danger of sexual molestation to the small children. The Mayor received US$58,500,00 from the national government’s Department of Social Welfare and Development (DSWD) to build a home for the children but as yet, only another room in the same building is being renovated.
In other jails, we found many more young minors behind bars without proper recreation, education, exercise, food, sanitation and legal assistance. This is the secret shame of the Philippines, hidden away from the media and the public. Hundreds if not thousands of children suffer the humiliation and deprivation of sub-human jail conditions every year.
More must be done to change the system that locks up children without care and education and respect for their human and child rights. It is similar in many developing countries.
Philippine government, NGOs, churches, and international aid agencies and charities are giving too little funds and advocacy to challenge and stop the gross violation of children’s rights in the jails around the Philippines where thousands of children suffer time behind bars in dehumanizing conditions not fit for animals.
It is much the same in other developing countries and much more has to be done by Unicef and the World Health Organization to pressure governments to change and transform the whole system of recovery and stop jailing children.
I can write from experience on this because of the success of the Preda social workers getting the children out of jails and transferring the custody to their parents and relatives or to the Preda Home for Boys in Castillejos, Zambales and to the Preda Home for Girls.
As many as 138 teenage youth were transferred to Preda coming from jails in Metro Manila in 2012 alone. Several small girls were rescued and helped to recover and find a new home safe from the abusers.
The boys or girls are released by court order and transferred to the Preda centers. This takes much time and expense. The more preferable way to release the child is before charges are filed against them by the recommendation of the municipal social worker using the diversion provision in the law. They are released from the fetid life threatening conditions of prisons and given a new start in life.
The Preda Home for Boys and Home for Girls are far from each other, but they are in a place of natural beauty, open countryside, where they can recover in dignity, where they are respected and cared for. Their faith in themselves and their self-worth is restored. Their trust in adults is healed.
The reason why there are so many children treated like criminals and jailed with them is because the public and the authorities have a very wrong attitude and perception of children in conflict with the law (CICL). The public have been misled by sensationalized tabloid media and the baseless statements of the police.
I have challenged police generals at a Senate hearing to go after the gang leaders of criminal gangs that abuse and force children to commit crimes. It’s so easy to arrest a child but are the police scared to go against the real criminals? Surely not, they are brave and courageous, they’re not into thinking that the street children are all thieves, robbers and even murderers or members of adult crime syndicates and deserve punishment and life behind bars. A nation is judged civilized, developed and moral not by the number of malls it has but by the way it treats children and women. We have a long journey ahead. Email shaycullen@preda.org; send letters to: St. Columbans, Widney Manor Road, Solihull, B93 9AB.
(Fr. Shay’s columns are published in The Universe, The Manila Times, in publications in Ireland, the UK, Hong Kong, and on-line.)
source: Manila Times's Column of Reflections by Fr. Shay Cullen
In another child detention center on the other side of Metro Manila, we found three small girls, from 6 to 12 years of age, locked in a room with male teenage boys. The place was bare and empty: no beds, chairs, showers, just a single toilet in the corner. It was a depressingly empty detention room.
Preda began negotiations with the Center Head to have the girls taken out of that detention holding room. It was no easy task. They were oblivious of the danger of sexual molestation to the small children. The Mayor received US$58,500,00 from the national government’s Department of Social Welfare and Development (DSWD) to build a home for the children but as yet, only another room in the same building is being renovated.
In other jails, we found many more young minors behind bars without proper recreation, education, exercise, food, sanitation and legal assistance. This is the secret shame of the Philippines, hidden away from the media and the public. Hundreds if not thousands of children suffer the humiliation and deprivation of sub-human jail conditions every year.
More must be done to change the system that locks up children without care and education and respect for their human and child rights. It is similar in many developing countries.
Philippine government, NGOs, churches, and international aid agencies and charities are giving too little funds and advocacy to challenge and stop the gross violation of children’s rights in the jails around the Philippines where thousands of children suffer time behind bars in dehumanizing conditions not fit for animals.
It is much the same in other developing countries and much more has to be done by Unicef and the World Health Organization to pressure governments to change and transform the whole system of recovery and stop jailing children.
I can write from experience on this because of the success of the Preda social workers getting the children out of jails and transferring the custody to their parents and relatives or to the Preda Home for Boys in Castillejos, Zambales and to the Preda Home for Girls.
As many as 138 teenage youth were transferred to Preda coming from jails in Metro Manila in 2012 alone. Several small girls were rescued and helped to recover and find a new home safe from the abusers.
The boys or girls are released by court order and transferred to the Preda centers. This takes much time and expense. The more preferable way to release the child is before charges are filed against them by the recommendation of the municipal social worker using the diversion provision in the law. They are released from the fetid life threatening conditions of prisons and given a new start in life.
The Preda Home for Boys and Home for Girls are far from each other, but they are in a place of natural beauty, open countryside, where they can recover in dignity, where they are respected and cared for. Their faith in themselves and their self-worth is restored. Their trust in adults is healed.
The reason why there are so many children treated like criminals and jailed with them is because the public and the authorities have a very wrong attitude and perception of children in conflict with the law (CICL). The public have been misled by sensationalized tabloid media and the baseless statements of the police.
I have challenged police generals at a Senate hearing to go after the gang leaders of criminal gangs that abuse and force children to commit crimes. It’s so easy to arrest a child but are the police scared to go against the real criminals? Surely not, they are brave and courageous, they’re not into thinking that the street children are all thieves, robbers and even murderers or members of adult crime syndicates and deserve punishment and life behind bars. A nation is judged civilized, developed and moral not by the number of malls it has but by the way it treats children and women. We have a long journey ahead. Email shaycullen@preda.org; send letters to: St. Columbans, Widney Manor Road, Solihull, B93 9AB.
(Fr. Shay’s columns are published in The Universe, The Manila Times, in publications in Ireland, the UK, Hong Kong, and on-line.)
source: Manila Times's Column of Reflections by Fr. Shay Cullen
Tuesday, July 2, 2013
Court gives order to cancel legitimation after adversarial proceeding
Dear PAO,
My status in my birth certificate is legitimated. However, I was told that I am not qualified for legitimation because my father was married to someone else when I was born. Am I not qualified for legitimation? If not, how can I cancel my legitimation? Can I ask for assistance from your office?
R.O.
Dear R.O.,
Legitimation is defined as a remedy by means of which, those who in fact were not born in wedlock and should, therefore, be considered illegitimate, are, by fiction, considered legitimate, it being supposed that they were born when their parents were already validly married.
There are two requisites in order for a child to be legitimated. These are the following: 1) the parents of the illegitimate child were not under any legal impediment to marry each other except the legal impediment of minority; and 2) subsequent valid marriage between the parents of the illegitimate child (Section 1, RA 9858). Hence, you are not qualified for legitimation because your father has the legal impediment of an existing marriage when you were born.
In order to cancel your status as a legitimated child, you shall need to file a petition for cancellation of legitimation before the Regional Trial Court of the place where your birth certificate was registered (Section 1, Rule 108, Rules of Court). Since this is an adversarial proceeding, you shall need to make as parties to your petition the civil registrar and all persons who have or claim any interest which would be affected by the cancellation of your legitimation (Section 3, id.). Upon filing of your petition, the court shall, by an order, fix the time and place for the hearing of your petition and cause reasonable notice thereof to be given to the parties named in your petition. It shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province (Section 4, id.). After hearing, the court may either dismiss your petition or issue an order granting the cancellation of your legitimation. In either case, a certified copy of the judgment shall be served upon the civil registrar where your birth certificate was registered who shall annotate the same in his record (Section 7, id.).
Our Office extends free legal assistance to the filing of petition for cancellation before our courts. This is pursuant to our mandate to represent, free of charge, indigents, and other persons qualified for legal assistance in all civil, criminal, labor, administrative and other quasi-judicial cases where, after due evaluation, it is determined that the interest of justice will be served thereby (Section 1, PAO Operations Manual). However, in order to become our client, you need to pass the merit and indigency tests as mandated by the PAO Law and our operations manual. A case shall be considered meritorious, if an assessment of the law and evidence on hand, discloses that the legal services of the office will assist, or be in aid of, or in the furtherance of justice, taking into consideration the interests of the party and those of society (Section 2, PAO Operations Manual). A client shall be considered an indigent if his net income does not exceed: P14,000.00 if residing in Metro Manila; P13,000.00 if residing in other cities; and P12,000.00 if residing in all other places (Section 3, PAO Operations Manual).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
My status in my birth certificate is legitimated. However, I was told that I am not qualified for legitimation because my father was married to someone else when I was born. Am I not qualified for legitimation? If not, how can I cancel my legitimation? Can I ask for assistance from your office?
R.O.
Dear R.O.,
Legitimation is defined as a remedy by means of which, those who in fact were not born in wedlock and should, therefore, be considered illegitimate, are, by fiction, considered legitimate, it being supposed that they were born when their parents were already validly married.
There are two requisites in order for a child to be legitimated. These are the following: 1) the parents of the illegitimate child were not under any legal impediment to marry each other except the legal impediment of minority; and 2) subsequent valid marriage between the parents of the illegitimate child (Section 1, RA 9858). Hence, you are not qualified for legitimation because your father has the legal impediment of an existing marriage when you were born.
In order to cancel your status as a legitimated child, you shall need to file a petition for cancellation of legitimation before the Regional Trial Court of the place where your birth certificate was registered (Section 1, Rule 108, Rules of Court). Since this is an adversarial proceeding, you shall need to make as parties to your petition the civil registrar and all persons who have or claim any interest which would be affected by the cancellation of your legitimation (Section 3, id.). Upon filing of your petition, the court shall, by an order, fix the time and place for the hearing of your petition and cause reasonable notice thereof to be given to the parties named in your petition. It shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province (Section 4, id.). After hearing, the court may either dismiss your petition or issue an order granting the cancellation of your legitimation. In either case, a certified copy of the judgment shall be served upon the civil registrar where your birth certificate was registered who shall annotate the same in his record (Section 7, id.).
Our Office extends free legal assistance to the filing of petition for cancellation before our courts. This is pursuant to our mandate to represent, free of charge, indigents, and other persons qualified for legal assistance in all civil, criminal, labor, administrative and other quasi-judicial cases where, after due evaluation, it is determined that the interest of justice will be served thereby (Section 1, PAO Operations Manual). However, in order to become our client, you need to pass the merit and indigency tests as mandated by the PAO Law and our operations manual. A case shall be considered meritorious, if an assessment of the law and evidence on hand, discloses that the legal services of the office will assist, or be in aid of, or in the furtherance of justice, taking into consideration the interests of the party and those of society (Section 2, PAO Operations Manual). A client shall be considered an indigent if his net income does not exceed: P14,000.00 if residing in Metro Manila; P13,000.00 if residing in other cities; and P12,000.00 if residing in all other places (Section 3, PAO Operations Manual).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
Monday, July 1, 2013
No Philippine law obligates married woman to drop her maiden name
Dear PAO,
I am using the surname of my foreign husband in my Philippine passport. We are not divorced but we are already separated and are not communicating with each other anymore. Can I have a new Philippine passport using my maiden name?
LP
Dear LP,
There is no law in the Philippines which obligates a married woman to use the surname of her husband. Upon a valid marriage, a married woman is only given an option to use the surname of her husband in any of the ways enumerated in Article 370 of the Civil Code of the Philippines, to wit:
“Article 370. A married woman may use:
1. Her maiden first name and surname and add her husband’s surname, or
2. Her maiden first name and her husband’s surname, or
3. Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”
A married woman who has decided to use the surname of her husband may be issued a Philippine passport in such surname upon presentation with the Department of Foreign Affairs a copy of her marriage certificate. In addition thereto, a Filipino who contracts marriage in the Philippines to a foreigner shall be required to present a Certificate of Attendance in a Guidance and Counselling Seminar when applying for a passport for the first time (Article 6, Section 2, Implementing Rules and Regulations of Republic Act No. 8239).
However, once a married woman has opted to use the surname of her husband, she shall continue using the same until her marriage with her husband is validly terminated. Hence, a married woman shall only be allowed to revert to her maiden name in her passport in the following instances: annulment, declaration of nullity of marriage, divorce decree obtained by the foreigner spouse, and death of the husband (Section 5(d), RA No. 8239).
In case of annulment, it shall be necessary for the applicant to present a certified true copy of her annotated Marriage Contract or Certificate of Registration and the Court Order effecting the annulment. If the woman was divorced by her alien husband, she must present a certified true copy of the Divorce Decree duly authenticated by the Philippine Embassy or consular post which has jurisdiction over the place where the divorce is obtained or by the concerned foreign diplomatic or consular mission in the Philippines. In the event that marriage is dissolved by the death of the husband, the applicant must present the original or certified true copy of the Death Certificate of the husband or the Declaration of Presumptive Death by a Civil or Shari’ah Court, in which case the applicant may choose to continue to use her husband’s surname or resume the use of her maiden surname (Article 6, Section 2, Implementing Rules and Regulations of RA No. 8239). Based on the foregoing, you shall not be issued a new passport since you are only separated in fact with your husband.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by Atty Persida Acosta
I am using the surname of my foreign husband in my Philippine passport. We are not divorced but we are already separated and are not communicating with each other anymore. Can I have a new Philippine passport using my maiden name?
LP
Dear LP,
There is no law in the Philippines which obligates a married woman to use the surname of her husband. Upon a valid marriage, a married woman is only given an option to use the surname of her husband in any of the ways enumerated in Article 370 of the Civil Code of the Philippines, to wit:
“Article 370. A married woman may use:
1. Her maiden first name and surname and add her husband’s surname, or
2. Her maiden first name and her husband’s surname, or
3. Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”
A married woman who has decided to use the surname of her husband may be issued a Philippine passport in such surname upon presentation with the Department of Foreign Affairs a copy of her marriage certificate. In addition thereto, a Filipino who contracts marriage in the Philippines to a foreigner shall be required to present a Certificate of Attendance in a Guidance and Counselling Seminar when applying for a passport for the first time (Article 6, Section 2, Implementing Rules and Regulations of Republic Act No. 8239).
However, once a married woman has opted to use the surname of her husband, she shall continue using the same until her marriage with her husband is validly terminated. Hence, a married woman shall only be allowed to revert to her maiden name in her passport in the following instances: annulment, declaration of nullity of marriage, divorce decree obtained by the foreigner spouse, and death of the husband (Section 5(d), RA No. 8239).
In case of annulment, it shall be necessary for the applicant to present a certified true copy of her annotated Marriage Contract or Certificate of Registration and the Court Order effecting the annulment. If the woman was divorced by her alien husband, she must present a certified true copy of the Divorce Decree duly authenticated by the Philippine Embassy or consular post which has jurisdiction over the place where the divorce is obtained or by the concerned foreign diplomatic or consular mission in the Philippines. In the event that marriage is dissolved by the death of the husband, the applicant must present the original or certified true copy of the Death Certificate of the husband or the Declaration of Presumptive Death by a Civil or Shari’ah Court, in which case the applicant may choose to continue to use her husband’s surname or resume the use of her maiden surname (Article 6, Section 2, Implementing Rules and Regulations of RA No. 8239). Based on the foregoing, you shall not be issued a new passport since you are only separated in fact with your husband.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by Atty Persida Acosta
Friday, June 28, 2013
Use of father’s surname does not grant legitimacy to child
Dear PAO,
I am a single mother and I’d like to ask about the surname of my newborn son. Can my son use the surname of his biological father even if we are not married? I was informed that my son can use his father’s surname even if there is no marriage between the parents. I hope your office can advise me on this matter.
Mara
Dear Mara,
To answer your query, we must first clarify the status of your son. Since you are not married to your son’s father, it is safe to assume that your son is an illegitimate child. Therefore, the applicable provision of the law is Article 176 of the Family Code of the Philippines which provides for the use of surname for illegitimate children. According to this provision:
“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 the 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” (As amended by Republic Act No. 9255).
It is important to note that based on this cited provision, the general rule is that the mother’s surname shall be used by an illegitimate child. However, Republic Act No. 9255 amended this law to include a provision which now allows an illegitimate child to use his father’s surname if the father expressly recognizes the child as his own in a written document. Thus, your son may use his father’s surname if the father signed the birth certificate of your son, or if he acknowledged it in a public document or a private handwritten document.
If, on the other hand, the father does not recognize your son, then the general rule shall prevail wherein your surname shall be used by your son. Furthermore, jurisprudence provides that the entry for the middle name of an illegitimate child’s birth certificate must be left blank if the father does not recognize the child. (Republic of the Philippines vs. Trinidad R.A. Capote February 2007).
Also note that the cited provision does not grant legitimacy to a child. Thus, even if an illegitimate child may use the surname of his father, the child’s status as an illegitimate will not change. Applying this to your situation, should your son be able to use his father’s surname, this alone will not change the status of your son since he shall remain an illegitimate child.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times' Column
I am a single mother and I’d like to ask about the surname of my newborn son. Can my son use the surname of his biological father even if we are not married? I was informed that my son can use his father’s surname even if there is no marriage between the parents. I hope your office can advise me on this matter.
Mara
Dear Mara,
To answer your query, we must first clarify the status of your son. Since you are not married to your son’s father, it is safe to assume that your son is an illegitimate child. Therefore, the applicable provision of the law is Article 176 of the Family Code of the Philippines which provides for the use of surname for illegitimate children. According to this provision:
“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 the 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” (As amended by Republic Act No. 9255).
It is important to note that based on this cited provision, the general rule is that the mother’s surname shall be used by an illegitimate child. However, Republic Act No. 9255 amended this law to include a provision which now allows an illegitimate child to use his father’s surname if the father expressly recognizes the child as his own in a written document. Thus, your son may use his father’s surname if the father signed the birth certificate of your son, or if he acknowledged it in a public document or a private handwritten document.
If, on the other hand, the father does not recognize your son, then the general rule shall prevail wherein your surname shall be used by your son. Furthermore, jurisprudence provides that the entry for the middle name of an illegitimate child’s birth certificate must be left blank if the father does not recognize the child. (Republic of the Philippines vs. Trinidad R.A. Capote February 2007).
Also note that the cited provision does not grant legitimacy to a child. Thus, even if an illegitimate child may use the surname of his father, the child’s status as an illegitimate will not change. Applying this to your situation, should your son be able to use his father’s surname, this alone will not change the status of your son since he shall remain an illegitimate child.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times' Column
Wednesday, June 19, 2013
Child born to married woman is her husband’s
Dear PAO,
I am waiting for the result of my annulment but I am planning to have a baby with my present boyfriend, who is single and will acknowledge the baby. Will there be any problem on the processing for the legitimation if my baby is born while my annulment is still on process? When can we start processing the legitimation of our child?
Jaja
Dear Jaja,
Under the Family Code, an illegitimate child who is born to parents who are not married at the time of his birth may become a legitimate child upon the subsequent marriage of his parents following the provision of Article 177 of the Family Code, which states that ONLY children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.
The application for the annotation of the legitimation in the child’s birth certificate may be processed immediately after the marriage of the parents in the local civil registry of the place where the child was born.
Based from the foregoing, a child with your present boyfriend, who would be born while the annulment of your previous marriage is on process, cannot be legitimated by your subsequent marriage because of such existing marriage, which disqualifies you from marrying his father.
Moreover, there is a presumption in the Family Code that a child who is conceived or born during the marriage of parents is considered their legitimate child even if the mother may have declared against its legitimacy or may have been sentenced as an adulteress (Article 164 and Article 167, Family Code).
The above provision of law means that a child born to a woman who is married is presumed to be her legitimate child with her husband. This presumption may be overcome if the father would impugn the legitimacy of the child within a limited period. The child would be considered legitimate if said husband failed to impugn said legitimacy.
In order to avoid any difficulty or problem regarding the status of your child, it is best that you wait for your marriage to be annulled and after the lapse of three hundred (300) days thereafter.
The lapse of three hundred days is required to avoid any controversy which could arise in connection with Article 168 of the Family Code, which states that:
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born BEFORE one hundred eighty (180) days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred (300) days after the termination of the former marriage;
(2) A child born AFTER one hundred eighty (180) days FOLLOWING the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred (300) days after the termination of the former marriage.
It is moreover suggested for you not to get married immediately after the issuance of the decree of annulment to avoid prosecution for the crime of premature marriage punishable under Article 351 of the Revised Penal Code, which provides for penalty to any woman who shall marry within three hundred and one (181) days AFTER her marriage shall have been annulled or dissolved.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column of Atty Persida Acosta with emphasis provided by Broker Rem
I am waiting for the result of my annulment but I am planning to have a baby with my present boyfriend, who is single and will acknowledge the baby. Will there be any problem on the processing for the legitimation if my baby is born while my annulment is still on process? When can we start processing the legitimation of our child?
Jaja
Dear Jaja,
Under the Family Code, an illegitimate child who is born to parents who are not married at the time of his birth may become a legitimate child upon the subsequent marriage of his parents following the provision of Article 177 of the Family Code, which states that ONLY children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.
The application for the annotation of the legitimation in the child’s birth certificate may be processed immediately after the marriage of the parents in the local civil registry of the place where the child was born.
Based from the foregoing, a child with your present boyfriend, who would be born while the annulment of your previous marriage is on process, cannot be legitimated by your subsequent marriage because of such existing marriage, which disqualifies you from marrying his father.
Moreover, there is a presumption in the Family Code that a child who is conceived or born during the marriage of parents is considered their legitimate child even if the mother may have declared against its legitimacy or may have been sentenced as an adulteress (Article 164 and Article 167, Family Code).
The above provision of law means that a child born to a woman who is married is presumed to be her legitimate child with her husband. This presumption may be overcome if the father would impugn the legitimacy of the child within a limited period. The child would be considered legitimate if said husband failed to impugn said legitimacy.
In order to avoid any difficulty or problem regarding the status of your child, it is best that you wait for your marriage to be annulled and after the lapse of three hundred (300) days thereafter.
The lapse of three hundred days is required to avoid any controversy which could arise in connection with Article 168 of the Family Code, which states that:
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born BEFORE one hundred eighty (180) days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred (300) days after the termination of the former marriage;
(2) A child born AFTER one hundred eighty (180) days FOLLOWING the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred (300) days after the termination of the former marriage.
It is moreover suggested for you not to get married immediately after the issuance of the decree of annulment to avoid prosecution for the crime of premature marriage punishable under Article 351 of the Revised Penal Code, which provides for penalty to any woman who shall marry within three hundred and one (181) days AFTER her marriage shall have been annulled or dissolved.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column of Atty Persida Acosta with emphasis provided by Broker Rem
Tuesday, June 18, 2013
Spouse who left conjugal home not entitled to support
Dear PAO,
My father died last year and I am one of his legitimate children, who are all of legal age. My parents were separated 27 years ago. We have no communication with my mother until the dying time of my father when she appeared and asked for forgiveness from my father. She left us to live with another man, whom she had two children. Later on, my mother also left that man and lived with another man.
My questions are: Can my mother still claim for the SSS death benefits of my father even if they had been separated for 27 years? Can my brother and I still be beneficiaries in the SSS even if we are both of legal age?
Van
Dear Van,
The death benefit of a deceased member of the Social Security System (SSS) is granted to his primary beneficiaries and, in the absence thereof, to his secondary beneficiaries. The primary beneficiaries are his/her dependent spouse until he or she remarries and dependent children either legitimate, legitimated, legally adopted, or illegitimate. A spouse is considered “dependent” if he or she is the legal spouse, who by law is entitled for support, while a child is considered “dependent” if he is unmarried, not gainfully employed and has not reached 21 years of age, or if above 21 years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally. On the other hand, the secondary beneficiaries of deceased SSS member are his dependent parents or such other person designated by such member, in the absence of the parents (Section 8[e], Section 8[k], Section 13 of Republic Act [R.A] No. 8282 or the “Social Security Act of 1997”).
Based from the foregoing, a wife shall only be entitled to the death benefit of his deceased husband if she is the legal wife who is entitled by law for support and such benefit shall be granted to her until she remarries. The legal wife, under Article 195 of the Family Code, is entitled for support from her spouse. However the spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not be entitled to support (Article 100, Family Code). On this ground, your mother may not be entitled to the death benefit from the SSS by reason of the death of your father because, as you have stated, your mother left your house 27 years ago to live with other men.
As to your entitlement to the death benefit, you and your brother cannot anymore claim said death benefit as primary beneficiaries because you are not considered as dependent children anymore. However, you may be entitled to the said benefit if your father has designated you and your brother as beneficiaries in his record with the SSS assuming that your paternal grandparents are also dead. As to this matter, you may inquire with the SSS Office regarding the beneficiaries which were designated by your father regarding death benefits.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column by PERSIDA ACOSTA
My father died last year and I am one of his legitimate children, who are all of legal age. My parents were separated 27 years ago. We have no communication with my mother until the dying time of my father when she appeared and asked for forgiveness from my father. She left us to live with another man, whom she had two children. Later on, my mother also left that man and lived with another man.
My questions are: Can my mother still claim for the SSS death benefits of my father even if they had been separated for 27 years? Can my brother and I still be beneficiaries in the SSS even if we are both of legal age?
Van
Dear Van,
The death benefit of a deceased member of the Social Security System (SSS) is granted to his primary beneficiaries and, in the absence thereof, to his secondary beneficiaries. The primary beneficiaries are his/her dependent spouse until he or she remarries and dependent children either legitimate, legitimated, legally adopted, or illegitimate. A spouse is considered “dependent” if he or she is the legal spouse, who by law is entitled for support, while a child is considered “dependent” if he is unmarried, not gainfully employed and has not reached 21 years of age, or if above 21 years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally. On the other hand, the secondary beneficiaries of deceased SSS member are his dependent parents or such other person designated by such member, in the absence of the parents (Section 8[e], Section 8[k], Section 13 of Republic Act [R.A] No. 8282 or the “Social Security Act of 1997”).
Based from the foregoing, a wife shall only be entitled to the death benefit of his deceased husband if she is the legal wife who is entitled by law for support and such benefit shall be granted to her until she remarries. The legal wife, under Article 195 of the Family Code, is entitled for support from her spouse. However the spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not be entitled to support (Article 100, Family Code). On this ground, your mother may not be entitled to the death benefit from the SSS by reason of the death of your father because, as you have stated, your mother left your house 27 years ago to live with other men.
As to your entitlement to the death benefit, you and your brother cannot anymore claim said death benefit as primary beneficiaries because you are not considered as dependent children anymore. However, you may be entitled to the said benefit if your father has designated you and your brother as beneficiaries in his record with the SSS assuming that your paternal grandparents are also dead. As to this matter, you may inquire with the SSS Office regarding the beneficiaries which were designated by your father regarding death benefits.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' Column by PERSIDA ACOSTA
Saturday, June 15, 2013
Young child should stay with mother
A common love story scenario usually occurs between two people who
work and spend too much time together. In this case, a married
businessman in Angeles City had an illicit relationship with his
secretary. Their union resulted in three children, a son and two
daughters.
Their relationship was not a secret. The businessman’s wife was aware of her husband’s extramarital activities as the secretary even brought their son to the legitimate family’s house to introduce him to the legal wife. After this, all three illegitimate children were accepted by the legal family and freely brought to the businessman’s house.
One summer, the businessman asked the secretary if he could take their son to Boracay with his legitimate family. The secretary agreed. After the trip however, the businessman refused to give back their son and even enrolled him in a school for the upcoming school year. The secretary filed a habeas corpus case to get her son back. The Regional Trial Court granted custody of the minor to his natural mother, the secretary, and ordered the businessman to give a monthly support of P3,000 for the support of his illegitimate children.
The Court of Appeals (CA) reversed the decision, holding that since the businessman was more financially well off than the secretary, it was in the best interest of the son to remain under the custody of his father.
The Supreme Court overturned the CA, reiterating Article 213 of the Family Code: No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
The fact that the businessman is well-off is not a reason for depriving the [secretary] of the custody of her children, especially considering that she has been able to rear and support them on her own since they were born . . . [The mother] and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that [the mother] is earning a decent living and is able to support her children according to her means.
The Court further reminded that the recognition of an illegitimate child may be a ground for ordering the father to give support to the child, but not for granting him custody of the child.
[The businessman] observed his son “to be physically weak and pale because of malnutrition and deprivation of the luxury and amenities he was accustomed to when in the former custody of the [the businessman].” He prayed that he be given the custody of the child so that he can provide him with the “proper care and education…”
[He] has expressed willingness to support the minor child. The order for payment of allowance need not be conditioned on the grant to him of custody of the child. Under Art. 204 of the Family Code, a person obliged to give support can fulfill his obligation either by paying the allowance fixed by the court or by receiving and maintaining in the family dwelling the person who is entitled to support unless, in the latter case, there is a ‘moral or legal obstacle thereto’… Indeed, if private respondent loves his child, he should not condition the grant of support for him on the award of his custody to him (David v. Court of Appeals, G.R. No. 111180, 16 November 1995, J. Mendoza).
source: Manila Times' by Benchpress
Their relationship was not a secret. The businessman’s wife was aware of her husband’s extramarital activities as the secretary even brought their son to the legitimate family’s house to introduce him to the legal wife. After this, all three illegitimate children were accepted by the legal family and freely brought to the businessman’s house.
One summer, the businessman asked the secretary if he could take their son to Boracay with his legitimate family. The secretary agreed. After the trip however, the businessman refused to give back their son and even enrolled him in a school for the upcoming school year. The secretary filed a habeas corpus case to get her son back. The Regional Trial Court granted custody of the minor to his natural mother, the secretary, and ordered the businessman to give a monthly support of P3,000 for the support of his illegitimate children.
The Court of Appeals (CA) reversed the decision, holding that since the businessman was more financially well off than the secretary, it was in the best interest of the son to remain under the custody of his father.
The Supreme Court overturned the CA, reiterating Article 213 of the Family Code: No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
The fact that the businessman is well-off is not a reason for depriving the [secretary] of the custody of her children, especially considering that she has been able to rear and support them on her own since they were born . . . [The mother] and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that [the mother] is earning a decent living and is able to support her children according to her means.
The Court further reminded that the recognition of an illegitimate child may be a ground for ordering the father to give support to the child, but not for granting him custody of the child.
[The businessman] observed his son “to be physically weak and pale because of malnutrition and deprivation of the luxury and amenities he was accustomed to when in the former custody of the [the businessman].” He prayed that he be given the custody of the child so that he can provide him with the “proper care and education…”
[He] has expressed willingness to support the minor child. The order for payment of allowance need not be conditioned on the grant to him of custody of the child. Under Art. 204 of the Family Code, a person obliged to give support can fulfill his obligation either by paying the allowance fixed by the court or by receiving and maintaining in the family dwelling the person who is entitled to support unless, in the latter case, there is a ‘moral or legal obstacle thereto’… Indeed, if private respondent loves his child, he should not condition the grant of support for him on the award of his custody to him (David v. Court of Appeals, G.R. No. 111180, 16 November 1995, J. Mendoza).
source: Manila Times' by Benchpress
Divorced Filipino spouse can remarry
Dear PAO,
I married a foreigner but retained my Filipino citizenship. Due to our differences, we obtained absolute divorce abroad. May I have it recognized in our country? What are the requirements?
Maggie
Dear Maggie,
As a rule, our laws do not allow divorce. However, an exception is provided in the second paragraph of Article 26 of the Family Code. It states that:
“Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to marry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.”
It is clear from that above provision that our State will only recognize the divorce if it is the alien spouse who filed or initiated the absolute divorce. An absolute divorce initiated by the Filipino spouse does not fall within the exception. Hence, it will not be recognized in our country for the reason that it is against public policy (Cang vs. Court of Appeals, 293 SCRA 128).
Note, however, that the bar does not apply to a former Filipino citizen who has been naturalized in a foreign country. He/she may initiate a divorce. In such a situation, the Supreme Court ruled that the reckoning point is NOT the citizenship of the parties at the time of marriage, but their citizenship at the time the divorce is obtained (Republic vs. Orbecido, G.R. No. 154380, October 5, 2005). Hence, such case will be viewed as a divorce between two foreign citizens which will be governed by the laws of their respective nationalities.
Applying the foregoing to your case, you failed to mention who initiated the divorce. Nonetheless, if it is you who initiated the divorce, then it will not be recognized in our country. On the contrary, if it is your foreigner spouse who initiated the divorce, then it can be recognized in our country. In such a case, you have to initiate a proceeding in court for recognition of the foreign divorce.
Please note that our courts are not duty bound to recognize foreign divorce decree or judgment. Our courts do not take judicial notice of foreign judgments and laws. This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence. In this regard, Section 24, Rule 132 of the Rules of Court requires as proof of a public record or document, presentation of an official publication of the document or a copy attested by the officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, the Rules of Court further requires that:
1) it be accompanied by a certificate issued by the proper Philippine diplomatic or consular officer stationed in the country where the record is kept; and,
2) authenticated by the seal of his office.
Bear in mind also, that there are two things you have to prove: the foreign divorce decree itself, and the foreign law allowing the divorce. Evidence on both must be presented so that the petition for recognition of the foreign divorce decree or judgment may be granted (Corpuz vs. Sto. Tomas, G.R. No. 186571, August 11, 2010).
We hope that we were able to enlighten you on the matter. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' by Persida Acosta
I married a foreigner but retained my Filipino citizenship. Due to our differences, we obtained absolute divorce abroad. May I have it recognized in our country? What are the requirements?
Maggie
Dear Maggie,
As a rule, our laws do not allow divorce. However, an exception is provided in the second paragraph of Article 26 of the Family Code. It states that:
“Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to marry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.”
It is clear from that above provision that our State will only recognize the divorce if it is the alien spouse who filed or initiated the absolute divorce. An absolute divorce initiated by the Filipino spouse does not fall within the exception. Hence, it will not be recognized in our country for the reason that it is against public policy (Cang vs. Court of Appeals, 293 SCRA 128).
Note, however, that the bar does not apply to a former Filipino citizen who has been naturalized in a foreign country. He/she may initiate a divorce. In such a situation, the Supreme Court ruled that the reckoning point is NOT the citizenship of the parties at the time of marriage, but their citizenship at the time the divorce is obtained (Republic vs. Orbecido, G.R. No. 154380, October 5, 2005). Hence, such case will be viewed as a divorce between two foreign citizens which will be governed by the laws of their respective nationalities.
Applying the foregoing to your case, you failed to mention who initiated the divorce. Nonetheless, if it is you who initiated the divorce, then it will not be recognized in our country. On the contrary, if it is your foreigner spouse who initiated the divorce, then it can be recognized in our country. In such a case, you have to initiate a proceeding in court for recognition of the foreign divorce.
Please note that our courts are not duty bound to recognize foreign divorce decree or judgment. Our courts do not take judicial notice of foreign judgments and laws. This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence. In this regard, Section 24, Rule 132 of the Rules of Court requires as proof of a public record or document, presentation of an official publication of the document or a copy attested by the officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, the Rules of Court further requires that:
1) it be accompanied by a certificate issued by the proper Philippine diplomatic or consular officer stationed in the country where the record is kept; and,
2) authenticated by the seal of his office.
Bear in mind also, that there are two things you have to prove: the foreign divorce decree itself, and the foreign law allowing the divorce. Evidence on both must be presented so that the petition for recognition of the foreign divorce decree or judgment may be granted (Corpuz vs. Sto. Tomas, G.R. No. 186571, August 11, 2010).
We hope that we were able to enlighten you on the matter. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.
source: Manila Times' by Persida Acosta
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