Consummated crime

Is a person still liable for the crime of bigamy despite the fact that after contracting the second marriage, his first marriage has been judicially declared null and void? This is the question raised and resolved in the case of Charlie.

Charlie has been civilly married to Tina for almost 9 years. Since they got married before a Judge of a Metropolitan Trial Court of Muntinlupa City on Oct. 25, 1992, Tina left to work abroad and would only come home to the Philippines for vacations. Such situation apparently led Charlie into the arms of another woman, Nena whom he courted and eventually married on Nov. 12, 2001 in Meycauayan, Bulacan according to the rites of a Protestant Church.

So when Tina went home for a vacation in 2002, she was informed of such marriage between Charlie and Nena. To verify the information, she went to the National Statistics Office and secured a copy of the marriage certificate confirming the marriage of Charlie and Nena. But since she was working abroad, she had no time to immediately take any steps against Charlie.

It was only on March 14, 2006, when Tina’s uncle filed before the Office of the Provincial Prosecutor of Malolos, a complaint accusing Charlie of committing the crime of bigamy. And on May 7, 2006, Charlie was charged before the Regional Trial Court (RTC) of Bulacan with bigamy defined and penalized under Article 349 of the Revised Penal Code as amended.

It turned out however that Charlie had also filed an action before the RTC of Caloocan City for the declaration of nullity of his marriage to Tina on the ground of the latter’s psychological incapacity to comply with her essential marital obligation. The RTC of Caloocan has already rendered a decision declaring his marriage to Tina null and void which became final on May 28, 2006.

Using this final judgment declaring his first marriage to Tina null and void, Charlie claimed that there is no bigamy to speak of because there is in effect no such first marriage to Tina. He tried to differentiate between a previously valid but voidable marriage and a marriage null and void from the beginning (ab initio) and contended that while a voidable marriage requires a judicial dissolution before one can validly contract a second marriage, a void marriage need not be judicially determined.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

But the RTC nevertheless convicted Charlie of the crime of bigamy and sentenced him to suffer the penalty of imprisonment of 4 years, 2 months and 1 day, minimum to 6 years and 1 day as maximum. Was the trial court correct?

Yes. A judicial declaration of absolute nullity of a previous marriage is necessary before a person can contract a second marriage. Parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of that marriage before they can be allowed to marry again.

In this case, Charlie legally married Tina on Oct. 25, 1992. He contracted a second and subsequent marriage with Nena on Nov. 12, 2001. At the time of his second marriage to Nena, his first marriage to Tina was still legally subsisting. The decision declaring his first marriage to Tina became final only on May 28, 2006 or about 5 years after his second marriage to Nena. It is evident therefore that he has committed the crime charged. Criminal culpability attaches to the offender upon commission of the offense.

If Charlie’s contention will be allowed, a person who commits bigamy can simply evade prosecution or conviction by immediately filing a petition for declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him or before he is convicted of the crime charged (Teves vs. People, et. al. G.R. 18775, August 24, 2011, 656 SCRA 307).

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E-mail: attyjosesison@gmail.com

A LAW EACH DAY(KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star) 

Illegitimate child has to use mother’s surname

Dear PAO,
I recently went to the DFA office to apply for a passport and was declined. I was told that I still need to secure an affidavit to use my father’s surname. I got really confused because although I have my mother’s surname on my birth certificate, I’ve been using my father’s surname ever since, and that was the first time someone told me that.

My parents only got married seven years after I was born. My father was able to secure an Affidavit of Admission of Paternity and an Affidavit for Delayed Registration of Birth. Both of these documents were attached to my birth certificate. Are these documents enough proofs that I am a legitimate child, and have the right to bear my father’s surname? What should I do regarding these concerns?
Christine

Dear Christine,
The law is clear that a child born out of wedlock is illegitimate. An illegitimate child shall use the surname of his/her mother. Nevertheless, he/she may use the surname of his/her father, provided he/she was acknowledged by the latter (Article 176, Family Code of the Philippines as amended by Republic Act No. 9255).

Based on your narration, it is clear that you were an illegitimate child when you were born, since your parents were yet to marry each other at the time and were only able to do so seven years later. Being illegitimate, you shall bear the surname of your mother, but you may use the surname of your father provided that you were recognized by the latter as his child.

Perhaps, this was explained to you at the Department of Foreign Affairs (DFA), when you tried to obtain a passport there. To formally use the surname of your father under the law, you have to register with the Office of the Local Civil Registrar where your Certificate of Live Birth is registered, the fact that you were expressly recognized by your father, together with the Affidavit to Use the Surname of the Father, among other things.

But the subsequent marriage of your parents, assuming that they have no legal impediment to marry each other during the time that you were conceived up to the time that they were married, through the process of legitimation, changed your status from illegitimate to legitimated.

By way of legitimation, an illegitimate child, by operation of law is considered legitimate, by virtue of the subsequent marriage of his/her parents, granting that during the period of his/her conception until the time of the said marriage, his/her parents had no legal impediment to marry. This is according to Articles 177 and 178 of the Family Code of the Philippines as amended by Republic Act 9858, which provides:

“Article 177. 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, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated.

“Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.”

Being legitimated, you are entitled to all the rights and privileges enjoyed by a legitimate child and the same shall retroact to the time of your birth. One of such rights is to bear the surname of your father (Articles 174(1), 179 and 180, Family Code of the Philippines).

To register your subsequent legitimation, all you have to do is to visit the Office of the Local Civil Registrar where your Certificate of Live Birth is registered. You just have to comply with all the requirements and follow the procedure established for the purpose. Once registered, you may now officially use the surname of your father.

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

The woman without a country?

A petition to disqualify Grace Poe has been lodged by my pal, Dean Amado Valdez, with whom I am normally in agreement — and am I surprised when we differ. He contends that the Senator is not qualified in the 2016 presidential elections on the following grounds:

1. Assuming that Grace Poe was a natural-born citizen, she lost her status as natural-born when she

Renounced her Filipino citizenship in 2001 to become an American citizen. She never regained her natural born status. At best, she is a repatriated Filipino citizen under RA 9225.

It seems to me being a natural-born Filipino is a one-time permanent thing. As Chief Justice Roberto Concepcion taught us in senior law, a natural-born Filipino “is one born a Filipino.” One is born only once. That concept, to me, is unchanging. One is a natural-born Pinoy, Martian or Manchurian Candidate. Losing one’s natural-born status seems an impossibility, like losing my birthplace of Mauban, Quezon, my sainted mother, my birth date, etc. Immutable. We cannot square the circle.

2. She has not completed her ten-year residency reckoned, at the earliest, from july, 2006 when she re-acquired her Filipino citizenship, and at the latest on 20 october 2010 when she renounced her American citizenship.

Residence was required to make sure one was aware of what was going on in the community and the country. For a caring Pinoy, that is now the easiest thing to do, without being physically present. We are talking of only a few months and therefore the issue has de minimis significance, if at all. The intent of the law is to exclude a stranger and a newcomer, unacquainted with the conditions and needs of the community and not identified with the latter. That may well be but it represents the best thinking of a jurassic era.

When I was in Rizal High, I would walk two or three kilometers for lunch at home and to catch the one o’clock Sports Parade of Willie Hernandez, to find out how the New York Yankees had fared the day before. Today we can watch sports events world-wide, live. And edifying presidential debates.

I chat with my family at home and then I am told my daughter Lara, with a doctorate in philosophy – children’s studies, now teaching tenure-track in New York, is there, on screen, to chat with her siblings here, live. There is the I-Pod, computer, cellphones, etc.
that make it possible for concerned Pinoys abroad who care to follow daily what goes on here.

Art. 15 of the Universal Declaration of Human Rights guarantees against statelessness. Art. 25 says to care for love children. In Makati Elementary, we read about Philip Nolan, The Man Without a Country. Was Grace ever The Woman Without a Country?

I may sound Emotionalized. I prefer Passionate, for all my life I have preferred to be on the side of the one being dumped on and kicked around. Do we kick around a Poe-Lot who comes to this world with two strikes against him/her? Underdogs, weeping alone, my kind of people, for whom I have worked, prayed and fought with that kind of passion that whips the blood.

I don’t want the unelected Commission on Elections and the unelected Supreme Court ruling on the tough issue. Not even the partly elected Senate Electoral Tribunal, whose widely-admired Chair, Justice Tony Carpio, inexplicably and uncharacteristically prejudged Grace’s case on Day One, without waiting for all the arguments to be in, leaving him no wiggle room. He should have waited until after all the evidence and arguments are in.

The choice of who will lead the country is the quintessential political question falling under its second kind.

The concept of “political question” is limited to two: 1) when the matter is exclusively left to a body to decide, like disorderly behavior of a member of Congress for something said say, in a privilege speech; it may be questioned there but not in any other place, such as the courts; or 2) when it is left to the people to decide in their sovereign capacity.

“But where the matter falls under the discretion of another department or especially the people themselves, the decision reached is in the category of a political question and consequently may not be the subject of judicial review.” I. Cruz and C. Cruz, Phil. Political Law 140 (2014).

I may be wrong but I should not have to be blamed for something drilled in me by Chief Justice Concepcion in San Beda and Prof. Albert Sacks in Harvard Law and adopted by Justice Isagani Cruz and his son, Carlo.

Let the sovereign people, the bosses, decide in a society that would be humane under our constitutional preamble.

Am I voting for Grace? Decency I always associate with FPJ and Susan. Osmosis should work and result in Designer Genes.

But, in fact, I have not made up my mind. It’s just that I don’t want any foundling being dumped on and kicked around. Art. 24 of the Civil Code says the system must be vigilant in protecting the handicapped, and ang putok sa buho, which Shakespeare lamented in King Lear, “Why bastard? wherefore base” – merits sympathy, understanding and compassion.

Campaign against her but let her be among the cards to be dealt our people in 2016.

source:  Manila Times Column by RENE SAGUISAG

Mother can’t renounce parental authority over illegitimate child

Dear PAO,
Can I be stripped of my right to the custody of my illegitimate son just because I signed an agreement that I am turning over the child to the parents of his father and waived my rights?            
Chony

Dear Chony,
Your son, being illegitimate, is under your sole parental authority. This is explicitly provided by Article 176 of the Family Code of the Philippines, which states:

“Article 176. 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. xxx”

Parental authority according to the Family Code of the Philippines is the parents’ natural rights and duties over the persons of their minor children to raise and rear them for civic consciousness and efficiency and the development of their moral, mental and physical character and well being (Article 209).

As such, the right to take the custody of your son shall be exercised by the one who enjoys parental authority over him. Since according to the above provision, you are the parent vested with parental authority, insofar as your illegitimate child is concerned, then it is only you who has the right over your child’s custody. Such right according to the law may not be renounced, waived or transferred to another person, except in the cases authorized by law. (Article 210, Ibid.)

Articles 228 and 229 of the said law enumerate the instances when parental authority terminates and may be transferred to another person, to wit:

“Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;

xxx

Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;

(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

(4) Upon final judgment of a competent court divesting the party concerned of parental authority; or

(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.”

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

The 4 elements of bigamy

Dear Loveliness,
Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines. In order for a person accused of the commission thereof to be held criminally responsible, the following elements must exist: The offender is legally married; the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; a second or subsequent marriage is contracted; and such second or subsequent marriage has all the essential requisites of a valid marriage.

In the situation of your cousin, it is apparent that the first and second elements are present. The presence of the third and fourth elements, however, is doubtful. While your cousin signed a document, which was purported to be a contract of marriage, that document alone will not suffice to conclude that he is, in fact, married to his former girlfriend. Keep in mind that there is only a valid contract of marriage if the following essential and formal requisites are present: legal capacity of the contracting parties who must be a male and a female; consent freely given by the parties in the presence of the solemnizing officer; the solemnizing officer has authority to solemnize the marriage; a valid marriage license, except in the cases allowed by law; and a marriage ceremony that 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 fewer than two witnesses of legal age (Articles 2 and 3, Family Code of the Philippines).

Since your cousin and his former girlfriend did not appear to have secured a valid marriage license, and neither was there a marriage ceremony that took place in accordance with the tenets of our law, it cannot be argued that all the elements to a valid contract of marriage are present. Thus, we are inclined to believe that there exists no true contract of marriage between them. Taking these into consideration, we are not persuaded to conclude that a case for bigamy against your cousin will prosper in court.

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

Conjugal share of unfaithful wife

Can a wife who has abandoned her husband and lived with other men still claim her share in the conjugal properties? This is answered in this case of Marissa.

Marissa has been married to Victor for six years when Victor filed an application for a homestead patent over several hectares of land they were occupying and cultivating. In his application, Victor described himself as “married to Marissa.” But after 9 years of marriage and while his application for a homestead patent was still pending, Marissa abandoned Victor and their three daughters. Since Marissa abandoned him and their children, Victor had not heard from her or even cared to know her whereabouts. To him Marissa was already “dead.” Unknown to Victor and their 3 daughters, Marissa had adulterous relations with other men. In fact she begot 11 children with the second man.

It was during his estrangement from Marissa when Victor’s homestead application was finally granted 14 years after he filed the application. The original certificate of title over the homestead was issued in favor of Victor, who described himself as a “widower.”

Twelve years later, Victor died. Soon after his death, Marissa reappeared and tried to assert her conjugal rights as the surviving wife of Victor. After abandoning Victor during his lifetime to live with other men, Marissa had the gall to go to the Land Registration Court and filed a motion praying that the description in Victor’s Certificate of Title be changed from “widower” to “married to Marissa.” The daughters naturally opposed said motion. Could the title be changed as requested by Marissa?

No. The change sought by Marissa is not authorized by law. The amendment of a certificate of title is allowed under Sec. 112, Act 496 only if there is unanimity among the parties, or there is no adverse claim or serious objection on the part of any party in interest. In this case, the daughters of Victor rejected and opposed the amendment. Hence the title cannot be simply amended. The proper process is to institute the intestate proceedings of the estate of Victor where Marissa may file against its administrator the corresponding ordinary action to claim her alleged right over the lot in question (Sotto vs. Jarena 144 SCRA 116).

Unfaithfulness does not pay.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

E-mail: attyjosesison@gmail.com

source:  A LAW EACH DAY (KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star)

Mothers should have custody of illegitimate children

Dear PAO,
Can my ex-boyfriend get the custody of our child? According to him, since our child used his surname, he is then the rightful parent to take custody of our child. 
Kailyn

Dear Kailyn,
The status of a child born out of wedlock is illegitimate. Being illegitimate, parental authority over his/her person is exclusively exercised by his/her mother. Likewise, the child shall use the surname of his/her mother, but if he/she was acknowledged by his/her father, he/she may use the latter’s surname. This is according to Article 176 of the Family Code of the Philippines, which provides:

“Article 176. 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. xxx”

Clearly, the mother of an illegitimate child shall always enjoy the right to take the custody of the child. This is her right which cannot be denied from her, it being part and parcel of her parental authority over the child. Save for those compelling reasons which render her unfit to exercise the same. The Supreme Court in the case of Joey D. Briones vs. Maricel P. Miguel et al. (G.R. No. 156343, October 18, 2004) had the opportunity to enumerate these compelling reasons, to wit:

“Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else. In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.”

On the other hand, the act of a father recognizing his illegitimate child gives him the right to see or at least visit the child especially so if he is extending financial support to the child. It does not however bestow upon him the right to demand the custody of the child.

Thus, your child shall remain in your custody even if he/she was recognized by his/her father and he/she is using the latter’s surname, unless the father can prove that you are unfit to perform your duties and obligations as the sole custodian of the child and he was given the custody of your child in relation to the abovementioned instances.

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

No middle name for illegitimate children

Dear PAO,
I am an illegitimate child. I am using the surname of my mother, and have no middle name in my birth certificate. I am applying for work abroad, and I was advised by my recruitment agency to put a middle name in my passport. Can I use the middle name of my mother as my middle name? How can I have a middle name?
KT

Dear KT,
Section 1 of Republic Act (R.A.) No. 9255 provides that illegitimate children shall use the surname and shall be under the parental authority of their mother. They may only be allowed to 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.

You did not mention if you were duly recognized by your father as his own illegitimate child. If this is the case, you may still be able to use his surname even if you were previously registered under the surname of your mother. You may do so by going to the Local Civil Registry Office of the place where your birth certificate was registered and submitting to them their documentary requirements. Once you were able to use the surname of your father, you shall be using the surname of your mother as your middle name.

On the other hand, if you were not duly recognized by your father, you will only be allowed to use the surname of your mother and will not have a middle name. Middle names serve to identify the maternal lineage or filiation of a person as well as to further distinguish him from others who may have the same given name and surname as he has. (In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang vs. Cebu City Civil Registrar, G.R. No. 159966, March 30, 2005). If you will use the middle name of your mother, you might be mistaken as your mother’s sibling rather than her child.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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

Six grounds for annulment of marriage

Dear PAO,
I am a mother of three children. My husband left us, and we have been separated for 15 years now. He has not given enough support for our children. For the most part, he will just give when and as he pleases. Now that our children are in college, he no longer provides support.

If truth be told, I am no longer after the support for my children. I was able to raise them with very little support from my husband. I am more after now for the nullification of our marriage so that I can finally free myself from him, and so that if ever I will invest in properties, it will not form part of our community property, because it will be unfair for me and for my children. What are the requirements needed and the process which I must undertake? I hope you can advise me. Thank you and more power.
Jhing

Dear Jhing,
Physical separation between spouses does not necessarily entitle either party to the filing of a petition to nullify or annul his or her marriage. Our laws require that there be legal basis in filing such petition in court.

Pursuant to our Family Code, only the following are considered as valid grounds for the declaration of absolute nullity of marriage: (1) either party is below 18 years of age, even with the consent of parents or guardians; (2) marriage was solemnized by a person not legally authorized to perform marriages, unless it was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) marriage was solemnized without license, except those allowed under the law; (4) bigamous or polygamous marriages not falling under Article 41; (5) marriage was contracted through mistake of one contracting party as to the identity of the other; (6) subsequent marriages that are void under Article 53; (7) either party was psychologically incapacitated to comply with the essential marital obligations of marriage at the time of the celebration of the marriage; (8) incestuous marriages; (9) marriages which are void from the beginning for reasons of public policy (Articles 35, 36, 37 and 38, Ibid.)

Insofar as filing a petition for annulment of marriage, any of the following grounds must be present: (1) either party was 18 years of age or over but below twenty-one, and the marriage was solemnized without the consent of his parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, he/she freely cohabited with the other party; (2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other; (4) the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other; (5) either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, Id.)

Accordingly, you may only file a petition to nullify or annul your marriage if any of the foregoing grounds exist in your marriage. Such petition must be filed before the regional trial court, sitting as a family court, of the place where you reside or where your husband resides, at your election. Should the court grant your petition, the absolute community of property or the conjugal partnership which was established between you and your husband during your marriage, as the case may be, shall be dissolved and liquidated. (Article 43 (2) in relation to Article 50, Id.) Any property acquired thereafter shall solely belong to the party who purchased or obtained it, or to whoever is named as donee if it be by reason of donation.

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

Establishing filiation of illegitimate children

Dear PAO,
Under our laws at present, how can a father show that he recognizes his child? Does a letter coming from a putative father addressed to the US Embassy allowing his child to travel constitute as sufficient form of recognition? Article 271 of the Civil Code mentions a manner of recognition by parents. Kindly explain what this means. Thank you.
RL 33

Dear RL 33,
You are correct in stating that Article 271 of the Civil Code made mention of a child’s recognition by his or her parents. We, however, want to emphasize that this legal provision has been repealed pursuant to Article 254 of Executive Order 209, as amended, or more commonly known as the Family Code of the Philippines.

Under our laws at present, the filial relationship of legitimate children may be established by any of the following means: (1) record of birth appearing in the civil register or a final judgment; or (2) 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 the open and continuous possession of the status of a legitimate child, or any other means allowed by the Rules of Court and special laws (Article 172, Family Code).

Where illegitimate children are concerned, their illegitimate filiation may be established in the same way and on the same evidence as legitimate children (Article 175, Family Code).

Applying the foregoing in the situation that you have presented, it may be said that the letter that was executed by the putative father addressed to the Embassy of the United States, allowing his child to travel may serve as a proof of such recognition, provided that he clearly and explicitly admits therein his illegitimate filiation with the child concerned. If the letter is not duly notarized or does not appear in a public instrument, it must be handwritten and signed by the father of the child.

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

source:  Manila Times

Marriage without license not valid

Dear PAO,
My husband is an Indian national. We got married in 2007. A year thereafter, I left him because I learned that he has a wife in India and they have two children. I just remembered that, prior to our wedding, he avoided getting his certificate of legal capacity to contract marriage, and so we were married without a marriage license. I also realized that he merely married me in order for him to continue staying here in the Philippines. Now, I just want to know if our marriage is even valid. If it is not, does that mean that I can marry another man? 
GS

Dear GS,
Marriage is a contract which binds the parties thereof. Like other contracts, our laws provide for a set of requisites in order to consider a contract of marriage valid and binding. According to Article 2 of the Family Code of the Philippines: “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.” Article 3 of the said law further provides the formal requisites of a contract of marriage, to wit: “(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.”

Given that a valid marriage license is one of the formal requisites mentioned under the law, the absence thereof renders a marriage void ab initio. (Article 4, Id.) This is further emphasized under Article 35 of the Family Code of the Philippines which provides that: “The following marriages shall be void from the beginning: x x x (3) Those solemnized without license, except those covered in the preceding Chapter; x x x”

Accordingly, your marriage with your husband is considered void from the very beginning because, as you have mentioned, your marriage was celebrated despite the absence of a valid marriage license.

Apart from that, your marriage may be considered bigamous if you can establish that your husband is, in fact, already married to another woman prior to the celebration of your marriage. This may serve as another basis for the nullity of your marriage. (Article 35 (4), Id.)

However, we want to emphasize that you cannot simply contract a subsequent marriage with another man. You must first seek for the declaration of nullity of your marriage before the proper court by filing the necessary petition. While a marriage may be considered void for causes provided under the law, it is not for the parties to declare the same on their own. The authority still rests upon our courts.

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

Amending the marital infidelity law

Inequalities in the law are no more harshly evident than  in the Revised Penal Code’s definition of marital infidelity and legal sanctions on perpetrators. Since 2013 a number of bills have been pending in Congress, seeking  to  amend if not to repeal Articles 333 and 334 of the RPC  to correct the imbalance in the treatment of men and women found guilty of the crime.

The National Commission for Women is in the forefront of a movement to amend laws that discriminate against women but favor men. In its agenda during the current 16th Congress the NCW is pushing Congress to check the imbalance. Representatives Emmi A. de Jesus and Luzviminda C. Ilagan go beyond amending laws as they are authors of HB 4377 which ask for the repeal of the offensive articles.

The NCW defines marital infidelity as “a violation or breach of good faith and confidence by one or both spouses to the matrimonial vows. It is also a major spousal pressure that eventually causes the breakdown of marriage as a foundation of the family.”      

Under marital infidelity, a breach of the marital relationship by a married woman constitutes adultery, and that by a married man is called concubinage.

The NCW says present laws on adultery and concubinage under the RPC “both constitute marital infidelity, but these are seen as discriminatory and nebulous. While both aim to punish marital infidelity of the spouses, there is higher burden put on wives than on husbands. This disparity in the treatment of the law is seen in the evidentiary requirement for the two crimes and there is a huge underlying difference if the infidelity was committed by the male or female spouse.”

For the wife, adultery means catching her in just one act of sexual intercourse with a man who is not her husband – provable through circumstantial evidence;  while for the husband, the  evidentiary requirement for concubinage is higher by proving that the sexual intercourse with a woman who is not his wife is 1) committed under scandalous circumstances; 2)that he is keeping another woman in the conjugal home, or 3) and that he is cohabiting with her in another dwelling.

Our present law also imposes higher penalty on  married women who commit infidelity as compared to married men. The penalty for women ranges from two years, four months and one day to a maximum of  six  years, while the penalty for men ranges from only six  months and one day to a maximum of  four  years and two months.

 Says the NCW: “The disparity in treatment stems from gender biases that use double standards in being more lenient thus seemingly accepting the infidelity  of men as normal, but more stringent on women who are expected to be faithful to their  husbands no matter what. These discriminatory provisions in the law should be amended.”

Existing laws or policy issuances call for amending the Articles 344 and 334. Section 12 of RA 9710 or the Magna Carta of Women (MCW) provides for the amendment or repeal of laws that are discriminatory to women.  The 1987 Philippine Constitution, Article II on Declaration of Principles and State Policies provides that the State “recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.”  

Article 2(g) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires the State to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against women. Article 16 also calls on the State Parties to take all appropriate measures to eliminate discrimination against women and ensure equality of men and women in all matters relating to marriage and family relations.

NCW posits that marital infidelity should remain an illegal act because it is not only a crime against the other spouse but also a breach to the marital vows. “Marriage is a special contract such that it is a three-party agreement that involves the spouses and the State. Although the personal rights of the spouses are involved, the State also considers itself as an offended party, not because of a breach of public order but because of the violation of marital vows which the State itself protects.”

It is hoped that the 16th Congress will act on the pending bills on marital infidelity.

FROM THE STANDS By Domini M. Torrevillas (The Philippine Star) | 

SC relaxes rules on psychological incapacity as ground to annul marriages

MANILA, Philippines—The Supreme Court has taken a liberal stand in allowing the annulment of marriage on the ground of psychological incapacity as it reversed itself and nullified the marriage of two individuals saying a strict implementation of the rules would allow diagnosed sociopaths, schizophrenics, narcissists and the like to stay married.

In a 25-page decision, the high court’s Special First Division through Associate Justice Lucas Bersamin reversed its September 2011 ruling “after taking a second hard look” at the facts of the case.

In the September 2011 ruling, the high court upheld the Court of Appeals’ decision in upholding the marriage of the two private individuals.

The high court said the lower court failed to make factual findings, which can serve as legal bases for concluding that one of parties is suffering from psychological incapacity.

But in its recent ruling, the high court said Article 36 of the Family Code should not be so strictly and too literally be applied.

Article 36 provides that “a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

The high court, in 1997 has set specific guidelines before a marriage can be nullified on the ground of psychological incapacity. Some of the guidelines include: the root cause of the psychological incapacity must be medically or clinically identified, alleged in the complaint, sufficiently proven by experts, must be proven to be existing at “the time of the celebration” of the marriage, clinically or medically incurable, among others.

“The foregoing guidelines have turned out to be rigid, such that their application to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection,” the high court said in its recent ruling.

“Instead, every court should approach the issue of nullity “not on the basis of a priori assumptions, predilections or generalizations, but according to its own facts” in recognition of the verity that no case would be on ‘all fours’ with the next one in the field of psychological incapacity as a ground for the nullity of marriage; hence, every “trial judge must take pains in examining the factual,” the high court said.

In this case, the high court granted the motion for reconsideration filed by the husband against the wife who loves to play mahjong and frequents the beauty parlor, displaying narcissistic behavior.

Aside from medical experts, the high court also gave credence to the testimony of Fr. Gerard Healy S.J., a canon law expert and a consultant of the Family Code Revision Committee who testified that the wife’s duties to her husband and children had become secondary to her beauty, being a former model, her going-out, going to beauty parlor and mahjong.

The high court added that taking her children with her while playing mahjong is exposing them to a culture of gambling, which was “a very grave and serious act of subordinating their needs for parenting to the gratification of her own personal and escapist desires.”

In relaxing the rules in determining psychological incapacity for nullification of marriages, the high court said they are “not demolishing the foundation of families but is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a psychological disorder, who cannot comply with or assume the essential marital obligations from remaining in that sacred bond.”

The high court added that the courts may be flooded by petitions for nullity of marriage but there is no reason to be worried because of ample safeguards such as intervention of the government.

“The court should rather be alarmed by the rising number of cases involving marital abuse, child abuse, domestic violence and incestuous rape,” the high court added.

source:  PH Daily Inquirer

Wife who leaves home with just cause still entitled to husband’s support

Dear PAO,
My wife left our family residence one year ago. Last month, I received a call from her asking for support because she lost her job. I refused because she was the one who left our house and we don’t have a child so I don’t have an obligation to give support. Is my reasoning correct?
Frank

Dear Frank,
Family relation creates legal rights and obligations between and among the members of the family. One of the legal rights and obligations arising from family ties is support, which comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation (Art. 194, Family Code). As provided by law, the following persons are obliged to support each other:

(1)The spouses;

(2)Legitimate ascendants and descendants;

(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; and

(5)Legitimate brothers and sisters, whether of the full or half-blood (Art. 195, Ibid).

It is clear from the above provision of law that support between spouses is separate from support between parent and child. It is an independent legal right that exists on its own, and which the person obliged to give support is mandated to fulfill. Thus, even though a couple has no child, they are still obliged to support each other. Yet, the right to receive support has limitations, and it may be lost in certain instances.

One instance where the right to support is lost is when a spouse leaves the conjugal home or refuses to live therein, without just cause (Art. 100, Id.). Under this law, there are two requisites before the right to support may be withdrawn under this provision of law, to wit: desertion or refusal to live in the family home, and there is no just cause for such action. The term just cause refers to a reasonable and lawful ground for action. It is a standard of reasonableness used to evaluate a person’s actions in a given set of circumstances (http://legal dictionary.thefreedictionary.com/just+cause). As emphasized by Prof. Santa Maria, the mere fact of separating from the family home is not a reason to withdraw the right to support unless there is evidence of any fault or guilt on the spouse who leaves (Persons and Family Relations Law, p. 451 citing Sumulong vs. Cembrano, 51 Phil. 719).

Applying the foregoing to your case, the fact that you and your wife have no child, and that she left the house you live in do not automatically disqualify her from receiving support. Your obligation to support subsists unless you can show that she left your house and refused to live there without just cause.

Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chaief Acosta may be sent to dearpao@manilatimes.net

Marriage voidable when either party is forced into it

Dear PAO,
My brother was forced to marry his girlfriend when he got her pregnant because the father of his girlfriend physically threatened him and even sent him death threats. Now that the father of his girlfriend passed away, my brother is wondering if he can have his marriage annulled considering that he only agreed to marry the girl because of the threats of his father-in-law against him. I hope you can advise us on what we can do about this. Thank you!
Edmayne

Dear Edmayne,
One of the essential requirements of a valid marriage is the consent of the parties freely given during their marriage (Article 2, Family Code of the Philippines). In situations when consent in marriage was obtained through force, intimidation or undue influence, the marriage is still considered valid until a proper action for its annulment on such ground is filed, proven and granted by the courts.

Based on your narration, your brother alleges that his consent to marry his girlfriend was caused by the threats made by his father-in-law. If this is true, then there is a defect in the essential requisites in the marriage of your brother since his consent was not freely given. This therefore makes his marriage voidable or valid until annulled.

Article 45 of the Family Code of the Philippines provides for the grounds for the annulment of a marriage. This law is relevant to the situation of your brother since it provides that:

“Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

xxx

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

xxx”

Thus, if indeed your brother was merely forced, coerced or threatened to obtain his consent to the marriage, then he may and he should bring the appropriate petition for annulment of marriage before the courts provided that he did not willingly cohabit with his wife after the exertion of the duress has ceased.

It is important to note that a petition for annulment of marriage must be filed before the lapse of a specific period otherwise the action will be barred by prescription. Under the law, the period within which to file a petition for annulment based on the ground of vitiated consent is “…within five years from the time the force, intimidation or undue influence disappeared or ceased” (Article 47(4), Family Code of the Philippines). Therefore, if the force and/or intimidation exerted by your brother’s father-in-law has ceased, then he must file the aforementioned petition in court within five (5) years counting from the time the said force and/or intimidation ceased.

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

Due diligence needed for court to declare missing spouse dead

Dear PAO,
My husband and I haven’t seen each other for years already. I have heard that he may have been living with his siblings in their province and decided not to contact me anymore. I have been working and raising our children by myself and I realized that the least I can do for myself is to find another partner to marry and help me raise a complete family. Because of this, I have found a partner who I wanted to marry and we plan to marry soon. However, since I know I am still legally married to my husband, I am wondering if I can file an action to claim that my husband is dead by now considering that he has been missing in our family’s life for so long already. I am hoping for your advice. Thank you!
Rotanielle

Dear Rotanielle,
It appears from your statement that you plan to claim the presumption of death of your absent husband in order to legally marry your new partner. Considering your intention, we shall refer to the provision of the law related to your situation.

For purposes of contracting a subsequent marriage when there is a belief that an absent spouse is already dead, the law provides that the spouse present must file a petition for the declaration of presumptive death when the absent spouse has been absent or has not been heard of for four years and the spouse present has a genuine belief that his/her spouse is already dead. In case the disappearance or absence of the spouse happened under dangerous circumstances, such as sinking of a ship, a period of two years is sufficient (Art. 41, Family Code of the Philippines in relation to Art. 391, Civil Code of the Philippines).

Therefore, in order to validly file such a petition, your husband must be absent without any news as to his whereabouts for the period stated above, and that you must truly believe him to be dead. It is important to note that it is not enough to claim that your husband has abandoned you and your children. There is a requirement to prove before the court that you exerted efforts to locate your husband to support your genuine and well-founded belief that he has already died. The Supreme Court ruled that failure to exercise due diligence in ascertaining the whereabouts of the absent spouse is failure to satisfy the requirements of the law which will result to the denial of a petition to claim the presumptive death of the absent spouse (Republic of the Philippines v. Gregorio Nolasco, 220 SCRA 20).

In your case, it is important that you make an actual effort to locate your missing husband especially because you stated that you have an information on his possible location. Please note that the law, on declaration of presumptive death, requires your well-founded belief on your spouse’s death. The presence of any lead as to the whereabouts of your husband undermines your well-founded belief as to his death.

You must be able to show that you have been diligent in locating your husband. Until then, you may not be able to claim the presumptive death of your husband for purposes of remarriage.

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

Illegitimate child can use father’s surname

Dear PAO,

I would like to seek advice regarding my husband’s mistress whom he had a child with. Can the mistress seek support from my husband for their child even if the child doesn’t use my husband’s surname? Related to this, can the mistress’s child still have my husband’s surname in his birth certificate even after the lapse of a few years from the time of his birth? Lastly, can I sue the mistress of my husband for her continuous harassment of my family and for continuously sleeping around with my husband? Thank you for your advice!
Ida

Dear Ida,
The illegitimate child of your husband may claim support from your husband if he expressly recognizes the child as his own. Should your husband acknowledge his mistress’s child, this carries the obligation on his part to give support to his child and even include him among his heirs for purposes of succession (Article 105, Family Code of the Philippines, Article 887, Civil Code of the Philippines). On the other hand, should your husband refuse to acknowledge the said child, then the mistress first needs to prove the filiation of her child to your husband in the manner set forth by law before claiming the child’s right to support from your husband.

With regard to the use of your husband’s surname by the child of his mistress, the law provides that an illegitimate child may use his father’s surname if the father expressly recognizes the child as his own in a written document. The length of time before a father acknowledges his filiation will not affect the child’s right to use his father’s name as long as he was acknowledged by his biological father. Thus, the child of your husband’s mistress may use your husband’s surname if your husband signed the birth certificate of the said child, or if he voluntarily acknowledges his filiation in a public document or a private handwritten document (Republic Act No. 9255).

As to your desire to file a legal action against the mistress of your husband for her alleged harassment to your family, the Civil Code of the Philippines recognizes the right to file a suit for damages caused by the disturbance of family life, to wit:

“Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) xxx;

(2) Meddling with or disturbing the private life or family relations of another;

(3) xxx;

(4) xxx.”

Finally, you may also file a criminal case for concubinage against the mistress of your husband for her continuous sexual relation with your husband (Art. 334, Revised Penal Code of the Philippines). Please note, however, that should you decide to file such a criminal case, your husband is required to be included as an accused in the criminal complaint since while the mistress is considered to be a concubine, the crime of concubinage is primarily committed by a husband who has sexual relations with a woman not his wife.

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.