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