Correcting entries in birth certificates

Dear PAO,
The spelling of my brother’s first name in his marriage certificate is incorrect. He wants to correct this error to prevent future problems. We’ve read in several articles that erroneous entries in birth certificates can be corrected without going to court. Is such remedy also available to correct errors in marriage certificate? Will it require him to stay in the Philippines for a long time? He is already based in the US.                 
Joyce

Dear Joyce,
The remedy you mentioned that is available to correct entries in birth certificates without going to court is prescribed by Republic Act (as amended by RA 10172). Under the law, clerical or typographical error, which refers to mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register may be corrected through an administrative procedure provided such is harmless and innocuous, visible to the eyes or obvious to the understanding, and can be corrected or changed by reference to other existing record or records. This includes misspelled name or misspelled place of birth, mistake in day and month of birth, or the sex of the person (Sec. 2(3), RA 9048, as amended).

In case of problems with the first name, the law also allows change of first name or nickname in case the same is ridiculous, tainted with dishonor or extremely difficult to write or pronounce, or the new first name or nickname has been habitually and continuously used by the person and he has been publicly known by that name, or to avoid confusion (Sec. 4, RA 9048, as amended).

The remedy is widely known to be available in correcting an entry in birth certificate, but the scope of the law is actually wider than that. It can be used to correct clerical or typographical error in an entry found in the civil register. The civil register refers to the various registry books and related certificates and documents kept in the archives of the local civil registry offices, Philippine Consulates and of the Office of the Civil Registrar General (Sec. 2(4), RA 9048, as amended). By reference to the Rules of Court, the entries in the civil register include not only birth, but also marriage, death, legal separation, judgment of annulment or declaration of nullity of marriage, legitimation, adoption, change of name, among others (Sec. 2, Rule 108). Thus, an error in the entry of first name in the marriage certificate can also be administratively corrected, that is, without going to court.

In order to avail of the remedy, your brother need not stay in the Philippines for a long time. In fact, it will not even require him to come back to the Philippines. The petition may be filed abroad. The law states that “Filipino citizens who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates” (Sec. 3, RA 9048, as amended). In this regard, I advise your brother to coordinate with the Philippine Consulate nearest his place of residence to seek assistance in correcting the spelling of his first name in his marriage certificate.

We hope you find our opinion helpful. Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary should actual facts and circumstances change.

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

Court declaration needed to establish death of ‘absentee’ wife

Dear PAO,
After years of hesitation, I finally found the strength to seek for a CENOMAR from the NSO for my husband. To my dismay, I found out that my husband had been married in 1993. We were married in 2005. When I confronted him about this, he said that he was only with his wife for a week when she left for the province. He said his wife never returned. Since he did not know her relatives, he really had no one to ask of her whereabouts. Is our marriage valid? Please enlighten me on the matter. Thank you.
Katrina

Dear Katrina,
Our laws provide that a marriage which has been contracted during the subsistence of a previous marriage is considered null and void, unless the prior spouse has been declared as presumed dead by the court. Article 41 of the Family Code states:

“Article 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purposes of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided for in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”

Therefore, in order for your husband’s first wife to be validly presumed dead and for your marriage to be considered as a valid subsequent marriage, the following must be present: (1) The absent spouse has been missing for four consecutive years or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code; (2) The present spouse wishes to remarry; (3) The present spouse has a well-founded belief that the absentee is dead; and (4) The present spouse files a summary proceeding for the declaration of presumptive death of the absentee (Republic vs. Nolasco, G.R. No. 94053, 17 March 1993, 220 SCRA 20). The belief that the absent spouse is dead must also be “the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the present spouse and whether the absent spouse is still alive or is already dead” (Republic vs. Court of Appeals and Alegro, 513 Phil. 391, 2005).

In order for your marriage to be valid, your spouse must have obtained an order from the court declaring his first wife as presumptively dead. Even if your husband has reason to believe that his wife is dead, he still has to go to court to have her declared presumptively dead. The validity of your marriage will depend on this.

In addition, without this judicial declaration, you and your spouse may even be prosecuted for bigamy under the Revised Penal Code for contracting a subsequent marriage during the subsistence of a prior valid marriage.

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

Identity of paramour needed in adultery complaint

Dear PAO,

I found out that my wife has a boyfriend. We had a big fight when I learned about this. The next day she ran away taking all the money in our safety box and some pieces of my jewelry. I am really mad about what she did and I want her to suffer in jail for cheating on me and getting all the valuables that I have mentioned. What case could I file against her and how do I start the process?             
Mr. M.D.

Dear Mr. M.D.,
As to the infidelity of your wife, the pertinent provisions of Article 333 of the Revised Penal Code provides that “Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.” In order for a complaint for adultery to succeed, it is important that you know, first, the identity of your wife’s paramour and you should have pieces of evidence sufficient to prove that your wife had sexual intercourse with her paramour. A complaint for adultery is initiated by the filing of a complaint-affidavit or sinumpaang-salaysay ng pagrereklamo with the Office of the Prosecutor having jurisdiction of the place where the sexual intercourse was committed.

A complaint for the crime of theft is likewise initiated by the filing of complaint-affidavit or sinumpaang-salaysay ng pagrereklamo with the Office of the Prosecutor having jurisdiction of the place where the personal property was stolen. However, you can only file a civil case and not a criminal complaint for theft against your wife for taking the money in the safety box and some pieces of your jewelry because Article 332 of the Revised Penal Code, states that “no criminal, but only civil liability shall result from the commission of the crime of theft, swindling, or malicious mischief committed or caused mutually by the following persons:

Spouses, ascendants and descendants, or relatives by affinity in the same line;

The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and

Brothers and sisters and brothers-in-law and sisters-in-law, if living together. ”

We hope that we have answered your queries. Our legal opinion may vary if other facts are stated 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

Filing an adultery case involves legal intricacies

Dear PAO,
I am a public school teacher and I want to know how I can file a case for adultery against my wife. I hope you can help me.
Mr. X

Dear Mr. X,
The Revised Penal Code defines certain wrongdoings as crimes and makes them punishable. Article 333 thereof defines adultery:

“Article 333. Who are guilty of adultery. — Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and maximum periods.

If the persons guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”

The crime of adultery has the following elements: 1) that the woman is married; 2) that she has sexual intercourse with a man not her husband; and 3) that as regards the man with whom she has sexual intercourse, he must know her to be married (Luis B. Reyes, Revised Penal Code, Book II, 14th Ed., page 849). It should be noted that adultery is a private crime that may only be prosecuted by the offended spouse. Furthermore, the offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders (Section 5, Rule 110, Rules of Court). If all of the foregoing were present, the offended spouse may initiate the prosecution of adultery by executing a sworn written statement charging his spouse with the offense of adultery. This shall be subscribed before the prosecutor of the place where the adulterous act is committed.

We can only imagine the difficult situation that you are currently in. But the filing of a criminal case, especially against the one person whom you have decided to share your life with, involves legal intricacies that a person without legal background may not be familiar with. On this note, we highly recommend that you consult a lawyer or go to the nearest Public Attorney’s Office (PAO) in your place so you can tell the whole details of your concern. Should you qualify as a PAO client, we have trained and dedicated lawyers who are more than willing to provide you with the necessary legal assistance that you need.

We hope that we were able to address your concern. 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

Adoption can only be canceled by adoptee

Dear PAO,
My friend adopted a child. Her petition was granted by a court in Quezon City way back in 2001. She thought that adopting a child was the best thing for her because she was already in her mid-forties at the time, had a stable job but was not in a relationship. Several years after the adoption, she and the child were having conflicts which, oftentimes, led to the child verbally and physically hurting my friend. She is wondering if there is any possibility of having the adoption canceled. I am hoping you can enlighten us. Thank you and more power.
Edna

Dear Edna,
Adoption is a legal process that creates lawful ties between persons who are commonly known as adoptee and adopter. It is not a simple process. In fact, it may be said that adopting a child involves a very complex process whereby the court determines the qualifications of the adopter and the availability of the adoptee, in consonance with the provisions of the Rules on Adoption (A.M. No. 02-6-02-SC).

As all other legal ties, adoption may be canceled or rescinded and this may be initiated through a verified petition for rescission of adoption filed before the Family Court of the city or province where the adoptee resides (Section 20, Rules on Adoption).

We would like to emphasize, however, that a petition for rescission of adoption may only be filed by the adoptee who is over eighteen (18) years of age, or with the assistance of the Department of Social Welfare and Development, if he is a minor, or by his guardian or counsel if he is over eighteen (18) years of age but is incapacitated. It may never be initiated by the adopter. As can be gleaned from the law, “x x x Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. x x x” Moreover, such petition may only be filed on the basis of any of the following grounds: (1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling; (2) attempt on the life of the adoptee; (3) sexual assault or violence; or (4) abandonment or failure to comply with parental obligations (Section 19, Rules on Adoption).

In the situation that you have presented before us, we regret to inform you that your friend may not seek redress from the courts for the cancelation of the adoption that was granted in her favor in 2001. Being the adopter or the one who adopted the child, she is not qualified to file a petition in court. Nevertheless, she may opt to deprive her adopted child of his or her legitime through the process of disinheritance. This may be done by your friend through the execution of a last will and testament, specifying therein such denial of legitime and the cause for such denial. It bears stressing that under Article 919 of the New Civil Code of the Philippines, “The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: x x x (6) Maltreatment of the testator by word or deed, by the child or descendant; x x x”

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.

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

Abuse exists even in absence of its physical manifestation

Dear PAO,
I have been silent for far too long and I want to take action now. I am in a relationship with a man for about seven years now. We had plans of marriage then but it never really materialized. It was fine by me because I have always thought that marriage is just a mere piece of paper. I thought that what was more important is that my partner and I are living together.

We were already in a relationship and in this kind of arrangement for two years, when I started noticing that he gets easily irritated even with the small details. When my daughter was growing up and as years passed, the irritation became a combination of resentment and anger. He would shout at me and our daughter, and it did not matter if we were at home or in a public place. There were even occasions when he would humiliate me in front of strangers like sales ladies in department stores or delivery personnel. He would often say that I am stupid and would curse me in front of our daughter.

His behavior has not only traumatized me but also our daughter. She is afraid to talk to other people, especially older men even if they are our relatives. I kept this to myself because I was ashamed to admit to my family and friends what I was going through. But I have reached my limit when two weeks ago he shouted at me and embarrassed me in a restaurant full of people. How do I protect myself as well as my daughter from him? Is there a case I can file against him considering that he has never actually inflicted physical harm on me? Please enlighten me. I do not know who else I can run to.
K2B2

Dear K2B2,
It is common for victims, women in particular, to feel repressed of the abuse and violence they are experiencing. We can never blame them because, somehow, society pressures us to only display what is good, and hide what is bad about our lives. But this should not be encouraged. Rather, we should promote openness and acceptance so that people will learn to choose to speak up so as to lessen violence especially against women and children.

As in your case, you should stop feeling ashamed of what you are going through because, before anyone else can help you, you should first help yourself. And you are not only saving yourself from an abusive person, you are also saving your own child.

Even if there is no physical manifestation of abuse, it does not mean that abuse does not exist at all. In fact, Republic Act (RA)  9262 or the “Anti-Violence Against Women and Their Children Act of 2004,” does not only limit the definition of abuse and violence to bodily or physical harm. It encompasses all aspects of abuse, which includes sexual, psychological or economic harm or suffering.

Furthermore, the application of the law is not merely confined to husbands and wives.

Section 3 (a) of the  law defines “violence against women and their children” as “any act or a 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. x x x” (emphasis supplied)

Applying the foregoing, you may file a complaint against your partner under this law. While it may be true that he has not inflicted physical harm on you, there appears to be psychological violence, or as the law puts it: “acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. x x x” (Section 3 (c), RA 9262)

You may also secure from your barangay a Barangay Protection Order (BPO) so as to immediately safeguard you and your daughter and prevent your partner from committing further acts of violence. Such order is valid for fifteen (15) days. Once the complaint is filed, you may secure from the court a Temporary Protection Order (TPO), which is valid for thirty (30) days, and prior to or on the date of the expiration thereof seek for the issuance of Permanent Protection Order (PPO).

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.

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

Wife can dip into joint account only after proving husband ‘really’ left her

Dear PAO,
My husband and I have a joint savings account in a bank. I want to withdraw the money so that my eldest son could go to college. I understand that because it is a joint account, I need the consent of my husband to make a withdrawal. Unfortunately, I could no longer locate him. He abandoned us two years ago, and we have not heard from him since. . .What should I do?
Elena

Dear Elena,
Under the Family Code, the default property regime of the spouses is the absolute community of property. With respect to the scope of pieces of property considered as community property of the spouses, the law states that it consists of all the pieces of property owned by the spouses at the time of the celebration of the marriage or acquired thereafter (Art. 91, Family Code [FC]). The rule, however, is not absolute such as when there is a marriage settlement providing otherwise.

Other exceptions include property acquired during the marriage by gratuitous title by either spouse, property for personal and exclusive use of either spouse other than jewelry, and property acquired before the marriage by either spouse who has legitimate descendants by a former marriage (Art. 92, FC). It does not appear that your joint savings account belongs to any of the exceptions mentioned. Hence, the joint savings account you and your husband maintain in the bank can be considered community property.

Now, according to the law, the administration and enjoyment of community property belongs to both spouses jointly, but in the event that one spouse is incapacitated or is unable to participate in the administration of the common pieces of property, the other spouse may assume sole powers of administration (Art. 96, FC). In line with this provision, the law grants an aggrieved spouse the right to petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community should he or she be abandoned by the other spouse without just cause or should the latter fail to comply with his or her obligations to the family (Art. 101, FC).

Please take note, however, that abandonment has a definite meaning in law. Article 96 of the Family Code states that “a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.” In one case, the Supreme Court interpreting a similar provision found in the Civil Code explicitly held that there must be real abandonment, not mere separation. It must not only be physical estrangement but also amount to financial and moral desertion. There must be absolute cessation of marital relations and duties and rights, with the intention of perpetual separation (Dela Cruz vs. Dela Cruz, 22 SCRA 333).

From the foregoing, it is clear that if you can prove “real” abandonment, then you may file a petition in court to ask for sole administration of your property regime and ask the court for authorization to withdraw money from your joint savings account to finance the education of your eldest son.

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

Separated husband who remarries commits bigamy

Dear PAO, 
I found out recently that my husband married another woman. What case can I file against him? We have been separated for many years already. He said I can’t do anything anymore since we’re already separated. 
Thank you,
Cheska

Dear Cheska,
You did not say whether the status of your separation is a legal separation or just a separation in-fact. Legal separation means that your separation underwent the process of seeking a declaration of legal separation from our courts. In separation in-fact, there was no declaration of legal separation from the courts, but you have been living apart. Nonetheless, whether your separation is legal or in-fact, the marriage bond remains. According to Art. 63(1) of the Family Code, “The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed [.]”

Since you and your husband remain married despite the separation, you may file a criminal case for bigamy against your spouse. Bigamy is defined under Article 349 of the Revised Penal Code, which states:

“Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.”

The Code provides two instances when bigamy may be committed by a person who contracts a second marriage: first, when his former marriage has not yet been legally dissolved, and second, before the absent spouse has been declared presumptively dead by means of a judgment by the court. The provision means that in order to contract a marriage that is not bigamous, a person who desires to marry another must first make sure that his former marriage was either nullified or if he is unsure if his spouse is dead, must confirm it with the courts.

Since you said that you are only separated from your husband and is still very much alive, you may file a criminal case for bigamy against him.

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

Kids from marriage on presumed death of first husband legitimate

Dear PAO,
Our parents were married in 1975. Before that marriage, our mother was married to her first husband in 1960 but due to the onslaught of a typhoon in 1963, her first husband went missing. She never heard of him since then and presumed that he was already dead. After 12 years, my mother married our father.  My question is: Are the children of my mother from her second marriage legitimate?
Leona

Dear Leona,
The answer to your question hinges on the validity of the marriage of your mother to her second husband, as under the law, children conceived or born during the marriage of their parents are legitimate (Article 164, Family Code of the Philippines).

According to you, your mother was married twice, first in 1965 and second in 1975. The law that was in effect during those times was the New Civil Code of the Philippines. It is clear from the letter of this law that a bigamous marriage is null and void. By plainly looking at the second marriage of your mother, it appears that it is null and void considering that she was still married to her first husband when she contracted a subsequent marriage.

But since her first husband had been missing for a total of thirteen (13) years before she married again and, according to your letter, she had no inkling whether her first husband was still alive as he was a victim of a typhoon before he went missing and your mother even presumed that her first husband was already dead, then her second marriage is valid. This is according to Article 83 of the New Civil Code of the Philippines, which provides:

“Article 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.”

It is worthy to mention that under Article 390 of the New Civil Code of the Philippines, it is provided that if a person has been missing for seven (7) years and there is no information whether  the person is still alive, the latter is presumed dead for all purposes except for those which have something to do with succession.

Also, Article 391 of the same law provides for the instances when a person is presumed dead for all purposes, to wit:

“Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.”

In addition, there is no need for the interested parties to file a petition in court for the declaration of the presumption of death of the person under the instances mentioned in the above provisions of law, the same presumption having arisen by operation of law. In the case of Angelita Valdez vs. Republic of the Philippines (G.R. No. 180863, September 8, 2009), the Supreme Court enunciated the following:

“For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.”

As can be gleaned from the foregoing, your mother’s marriage to her second husband is valid. Therefore her children from her second marriage are legitimate.

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 guide you with our opinion 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

Spouses can seek separation of property

Dear PAO,

I have been married to my husband for almost five years. While we both have our own jobs and a steady income, my husband has made it his responsibility to support his parents and siblings in the province. I am also six months pregnant with our second child. There have been moments that my husband placed my child and I in the least of his priorities. He basically controls our money, and he told me that I cannot complain as my income is his income because our property is conjugal. Is there any way for me to be able to enjoy my own income and properties exclusively? I am afraid that all of our savings will just go to his parents and siblings and none for our family. I just want to make sure that my children will still be prioritized despite their father’s other obligations.

Theresa
 

Dear Theresa,

If you had no ante-nuptial agreement on your property regime, Article 75 of the Family Code states that the system of absolute community of property shall prevail. Absolute community shall consist of all the properties owned by the spouses at the time of the celebration of the marriage or those acquired thereafter (Article 95, Family Code).

However, some properties are excluded from the community property of spouses. These are enumerated in Article 92 of the Family Code and consist of (1) the property acquired during the marriage by gratuitous title by either spouse and the fruits and income thereof, (2) property for the exclusive use of either spouse, except for jewelry, and (3) property acquired before the marriage by either spouse who has legitimate descendants (children, grandchildren, and the like) by a former marriage, including its fruits and income.

The law allows a spouse to seek dissolution of the absolute community regime only through a court order. Article 143 of the said law states that, “In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may be voluntary or for sufficient cause.”

You and your husband may agree to voluntarily file a petition for the dissolution of your absolute community and for separation of your common property. The law does not require that you seek separation of your property for cause if it is a voluntary petition.

However, if it is not voluntary, it must be for at least one of the causes enumerated in Article 135 of the Family Code. Therefore, if you and your husband do not agree on having your community property separated, you must look at the causes enumerated in Article 135 and see if at least one of the causes applies to you. These are: “Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:

(1)    That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

(2)    That the spouse of the petition has been judicially declared an absentee;

(3)    That the loss of parental authority of the spouse of petitioner has been decreed by the court;

(4)    That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

(5)    That the spouse granted the power of administration in the marriage settlements has abused that power; and

(6)    That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.”

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

Dad’s income determines support for his illegitimate children

Dear PAO,
After our marriage, my husband told me that he has two illegitimate children and they are currently in the custody of their grandparents. I also learned that my husband had an agreement with the mother of his children that he will shoulder the school expenses of the children and he will still be sending them their allowances. Lately, I observed that the mother demanded too much from my husband and more often I feel that it is getting excessive. I am troubled with this kind of set-up and I want to set things straight. My question is, can we make this agreement legal so that finally the amount of support is pegged to a certain amount? 
Sarah

Dear Sarah,
Our law recognizes the rights of illegitimate children. One of these rights is the right to demand for support. Under the law, support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Article 194, Family Code). Further, the education of the person entitled to be supported shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Support for education also includes the fare in going to and from the school.

Although the law gives illegitimate children the right to be supported, the amount of support, however, is dependent on the financial capacity of the giver and the needs of the person entitled to support. The law does not peg the amount of support because the amount of support shall be in proportion to the resources or means of the giver and to the necessities of the recipient (Article 201, Family Code). That is, the mother of your husband’s illegitimate children cannot ask for more than what your husband can afford to give. This comes from the principle that a person cannot give more than what he has.

You mentioned that there is already an agreement reached by your husband and the mother of his illegitimate children and you want this to be in writing so that you can fix the amount. This can be done provided that both parties are agreeable to the terms and conditions as set forth therein. If the amount of support is pegged to a reasonable amount consistent with the capacity of your husband and the needs of his children as of the moment, the rights of both sides will be protected and future grudges may be prevented. But the amount that they may agree upon now is only for the time being because the law provides that the amount of support can be changed as circumstances warrant. It can be reduced or increased proportionately according to the necessities of the recipient and the resources or means of the giver (Article 202, Family Code).

We advise you to inform your husband of your predicament so that he can speak with the mother of his children and come up with an agreement that will be beneficial to both of them. Once an agreement is reached, every party to the agreement shall be bound by the same.

We need to remind you however that the amount of support never becomes final. It may be reduced when the resources of your husband and the necessities of his illegitimate children shrink but may also be increased should there be a need to increase the same. Be that as it may, the amount of support shall always be dependent on the means and resources of the giver and the necessities of the recipient.

We hope that we were able to address your query. 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

Illegitimate child entitled to share from father’s inheritance

Dear PAO,
I have a daughter with my ex-boyfriend. My ex-boyfriend acknowledged our daughter as his child and he even signed my daughter’s birth certificate. I recently found out, however, that my ex-boyfriend already passed away and that he left another child with his wife. Because of this, I want to know if there is any chance that my daughter can get any inheritance from his father since I know for a fact that my ex-boyfriend is well-off. I tried to communicate and discuss this with the family of my ex-boyfriend but I was told that my child has no right to inherit from her father and that she is not going to get anything. I just want to know if my child has a right to claim inheritance from her father even if she is an illegitimate child and how much will my daughter get from her father. I hope you can advice me on this matter. Thank you!             
Delilah

Dear Delilah,
Philippine laws provide for the rights of children, both legitimate and illegitimate, to inherit from their parents. Article 887 of the Civil Code of the Philippines enumerates the list of compulsory heirs, including illegitimate children along with legitimate children of the deceased, as among those entitled to compulsory inheritance from pieces of property left by the deceased parents. And in relation to this, the portion of the property left by a deceased parent for their children is called legitime, which is defined by law as:

“Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs, who are, therefore, called compulsory heirs” (Art. 886, Civil Code of the Philippines).

As stated in this cited law, legitimes are reserved for compulsory heirs. And since illegitimate children, such as your daughter, are recognized under the law as compulsory heirs, then it follows that she is also entitled to a share in the property left by her father that is reserved by law for her. Thus, there is no basis in the claim of your ex-boyfriend’s family that your daughter has no right to inherit from her father.

Note however that before illegitimate children can be considered as compulsory heirs, there is still a requirement for them to duly prove their filiation with their deceased parent. And in your situation, since you have mentioned that the father of your daughter signed her birth certificate, this is an acknowledgment of his relation as a father, which is a sufficient proof of his filiation to your daughter. Therefore, the status of being an illegitimate child of your daughter, by itself, is not an impediment to her right to inherit from her deceased father.

Finally, with regard to the share of your daughter from the legitime of his father, it is important to note that the law also provides for the size of the share to be received by an illegitimate child compared with the share of a legitimate child. The law states that an illegitimate child shall receive a share equivalent to half of the share that will be received by a legitimate child who in turn shall receive a share of half of the value of the whole legitime (Art. 895, Civil Code of the Philippines). As an example, if the total value of the legitime left by a deceased is two million pesos (P2,000,000.00), a legitimate child shall receive one million pesos (P1,000,000.00) from it, while an illegitimate child is entitled to only five hundred thousand pesos (P500,000.00), which is half of the value received by the legitimate child. Thus, although your daughter is entitled to a share in the legitime, the size of her share is limited by this 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.

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