How do we divide assets fairly?

By: Queena N. Lee-Chua / @inquirerdotnet

Philippine Daily Inquirer

A reader who does not want his name mentioned asks:  What would be a fair division of assets for a Filipino-Chinese family of four siblings, two males and two females?  Assets include a family business, where all four have been working for since graduation; and the primary residence of parents, with the male children and their families living with the parents.  The female children are married and living in their own homes.  The spouses of the male siblings are also working in the business, having married into the family.  What is a fair way to distribute assets since parents are near retirement?

My reply:  Fair is in the eye of the beholder, and fairness is more a perception rather than a strict mathematical division.  Fairness does not necessarily imply equality (see my column on March 21, 2014), though the easiest way to divide assets is to convert everything into current value and divide accordingly, liquidating assets if contentious issues arise.

However, the ancestral home may hold more value than what the market prices it to be.  For instance, how much is sentimental value worth, especially if you have lived all your life there and loved the house?  For many who have happy childhoods, their first home would be priceless.

Since fairness has various connotations, I am not surprised you get different answers from your friends.

Most parents prefer strict division—that is, dividing the entire assets (converted to current peso value) by four in your case. Parents declare that they love their children equally, and they believe that to show their love, they need to divide everything fair and square.

However, the second or third generation in many family businesses I know do not favor strict division, because some siblings believe they deserve a bigger share.  Perhaps they were the ones who built the business together with the parents, and so they deserve the lion’s share.

Sometimes, the males believe they deserve more just because they supposedly have the responsibility to continue the family bloodline, while the females are supposedly under the care of other families once they marry.

While I may find this antiquated, I respect tradition—as long as the female siblings do not resent this arrangement.

Some parents divide assets and give more (often, secretly) to their favorite children (parents try hard not to have favorites, but they are human and often do).

Some families decide to leave the decision to luck.  One family (whom I have written about) divided assets by drawing lots, with far better results than families with lawyers representing individual interests.

Sit down now with your parents and siblings, while the former are still alive, to counsel everyone. Ask everyone what they believe a fair division should be, and work from there.

If your family members are close and have the company’s best interests at heart, you will work things out.  But do this earlier than later, and if needed, get a professional who can be objective to guide you through the process.

The best division is the optimal compromise that everyone can live with.

Catholic Mass Media Awards

I’d like to thank the Catholic Mass Media Awards for the Special Citation for this column.  Thank you, too, to Raul Marcelo, Tina Arceo-Dumlao, and Princess Ominga of the Business Section, for ensuring that what you read comes out in the best way possible.

Thank you, readers, for your sustained support.  Rest assured I will continue to focus on best practices and feature family businesses from which we can all draw inspiration.

No reason to void Jodi, Pampi marriage – CA

The Court of Appeals (CA) threw out the decision of the Parañaque City regional trial court declaring null and void the marriage between actress Jodi Sta. Maria and Panfilo “Pampi” Lacson Jr., son of Sen. Panfilo “Ping” Lacson.

In a 19-page decision, the CA’s Eighth Division junked the ruling of the Regional Trial Court Branch 194 of Paranaque City that Sta. Maria and Lacson’s marriage was void from the start. The decision was penned by Associate Justice Carmelita Salandanan Manahan and concurred in by Associate Justices Japar Dimaampao and Franchito Diamante.

Sta. Maria and Lacson met at the set of the television series “Tabing Ilog” in 2000. They became sweethearts after several month of courtship.

In March 2005, they were married in Nevada and in June of the same year, they also got married before a court in Parañaque. On December 23, 2005, their only son, Panfilo Sta. Maria Lacson 3rd, was born.

However, their union turned sour and Sta. Maria file an amended petition for declaration of nullity of their marriage before the court on grounds of psychological incapacity.

The court granted her petition but the Office of the Solicitor General elevated the case before the CA.

In its September 28, 2016 ruling, the appellate court thumbed down the verdict.

“While we do not dispute the finding of the RTC, we cannot subscribe to its conclusion that the acts and behavior of Sta. Maria indicate psychological incapacity which rendered her incapable of complying with the essential marital obligations,” the appeals court said.

The CA also held that Lacson’s psychological incapacity was not sufficiently proved.

“A psychological report prepared by [Clinical Psychologist Dr. Visitacion Revita), which found Lacson to be suffering from a dependent type personality disorder, was offered in evidence,” the CA said.

“We note, however, that Lacson was not subjected to an actual evaluation by Dr. Revita, and the conclusions of Dr. Revita were exclusively derived from the information given by Sta. Maria and Abigail del Mundo who claims to be a common friend of Sta. Maria and Lacson,” the court said.

source:  Manila Times

Concealment of homosexuality ground for annulment

Dear PAO,
My husband and I have been separated for three years now. We got married in 2012. It all began when I discovered that he was having an affair, not with another woman, but a man. I did not know that he was gay as I never noticed this when he was still my boyfriend and he never told me about this even before we got married. I knew it only when I learned about his same-sex affair from a common friend. When I confronted my husband, he admitted that indeed he is gay. I just want to know if I can have our marriage annulled. Had I known about his being gay then, I would not have married him. We have no kids, by the way.
Girlie

Dear Girlie,
Homosexuality per se is not a ground for annulment of marriage. It can only be considered as such, if there is concealment of this condition prior to the marriage, as it constitutes fraud, which makes the marriage voidable. According to the Family Code of the Philippines, a marriage may be annulled if the consent of either party was obtained by fraud. (Article 45 (3), Ibid.)

The same Code likewise enumerates instances which establish fraud, to wit:

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

Based on the foregoing, you may file a case to petition the court to have your marriage annulled on the ground of fraud. You have five years within which to do so, to be reckoned from the day you discovered the fraud. (Article 47 (3), Id.)

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

Dissolve first marriage first before contracting second one

Dear PAO,
My mother relayed to me that she married my father when he was still below 18 years of age. This happened with the help of fixers in one of the cities here at the National Capital Region. My mother discovered after she obtained a certificate of no- marriage that my father contracted another marriage during the time of their marriage. She intends to file a case for bigamy against my father; however, our relative who is working in a law firm advised her that there is no need to file such case, because her marriage with my father is void from the very beginning. He even explained to her that the absence of essential requisites of marriage would render her marriage void. What shall we do?
Keir

Dear Keir,
Your relative is correct as to his statement that the absence of essential requisites of marriage would render the marriage void. If, however, the void marriage, for any reason, was already registered, you need to go to court for that marriage to be declared void. It is not for the parties to decide whether the marriage is void or not.

Article 40 of the Family Code of the Philippines provides that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”

The Supreme Court said in Montaṅez vs Cipriano (G.R. No. 181089, October 22, 2012), that:

“And in Jarillo v. People (G.R. No. 164435, September 29, 2009, 601 SCRA 236), applying the foregoing jurisprudence, we affirmed the accused’s conviction for bigamy, ruling that the moment the accused contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, the accused’s first marriage which had not yet been declared null and void by a court of competent jurisdiction was deemed valid and subsisting.

Here, at the time respondent contracted the second marriage, the first marriage was still subsisting as it had not yet been legally dissolved. As ruled in the above-mentioned jurisprudence, the subsequent judicial declaration of nullity of the first marriage would not change the fact that she contracted the second marriage during the subsistence of the first marriage. Thus, respondent was properly charged of the crime of bigamy, since the essential elements of the offense charged were sufficiently alleged.

Respondent claims that Tenebro v. CA (G.R. No. 150758, February 18, 2004, 423 SCRA 272) is not applicable, since the declaration of nullity of the previous marriage came after the filing of the Information, unlike in this case where the declaration was rendered before the Information was filed. We do not agree. What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage.”

Bigamy is committed by 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 in the proper proceedings (Article 349, Revised Penal Code of the Philippines).

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

Marriages solemnized abroad valid in PH

Dear PAO,
If a marriage between two Filipinos was validly celebrated abroad and later on one of them divorced the other, is this divorce valid in the Philippines?
Philip

Dear Philip,
According to the Family Code of the Philippines, a marriage celebrated abroad is valid in the Philippines provided that the same is also valid in the place where it was celebrated. This is in accordance with Article 26 of the law, which states:

“Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

xxx”

Assuming that the marriage, which was validly solemnized abroad does not fall within the exceptions mentioned in the above-quoted law, the same is also valid in the Philippines. As such, considering that the parties to the marriage are both Filipinos, a divorce decree obtained abroad by any of them will not make them eligible to remarry. According to the Family Code of the Philippines, a divorce may be recognized in the Philippines, only if the marriage is between a Filipino and foreigner and the latter was the one who obtained the divorce. This is specifically provided in the second paragraph of Article 26 thereof, which provides:

“Art. 26. xxx

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”

On the other hand, the same is still applicable to the marriage between two Filipino citizens, where one of them becomes a citizen of another country and obtained a divorce decree thereafter. This was elucidated by the Supreme Court of the Philippines in the case of Republic of the Philippines versus Cipriano Orbecido III (G.R. No. 154380, October 5, 2005, 472 SCRA 114), as follows:

“Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. xxx”

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

Minority no longer an impediment to legitimation

Dear PAO,
I got pregnant and gave birth to a baby boy at the age of 17. Eventually, I married the father of my child when I was 23 years of age. I would like my son to be legitimated, hence, I have looked at the provisions of the Family Code as to the requirements of legitimation and I have read that under Article 177: “(O)nly children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.” What are these impediments, do they include minority?
Servanda

Dear Servanda,
Article 177 of the Family Code of the Philippines is already amended by Republic Act (RA) 9858 or An Act Providing for The Legitimation of Children Born to Parents Below Marrying Age, Amending for the Purpose the Family Code of the Philippines, as amended.

Section 1 of the above-mentioned law states:

Article 177 of Executive Order No. 209, otherwise known as the “Family Code of the Philippines,” as amended, is hereby further amended to read as follows:

“Art. 177. Children conceived and born outside of wedlock of parents who, at the time of 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.”

In your situation, you can have your son legitimated because minority is no longer an impediment as clearly stated by the above-mentioned provisions of law. Before a child may be legitimated, the following shall be established (Rule 3, National Statistics Office, Administrative Order No. 1, Series of 2010):

3.1 The parents are not disqualified to marry each other by any legal impediment at the time of conception of the child, or are so disqualified because either or both of them is/are minor parent/s;

3.2 The child is conceived and born outside a valid marriage.

3.3 The parents subsequently enter into a valid marriage.

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

Two marriages should be declared void

Dear PAO,
I married in 1997 without a marriage license when I was 24 years old. My husband and I did not live together, though, because we were very immature to face the obligations of a married couple. We had no communication for ten years now, and I am already married to another person whom I am living with in another country.

I want to file a Declaration of Nullity of my first marriage. Do I have to be physically present in the Philippines? Can I just hire a lawyer to process the case? God bless!
Lydia

Dear Lydia,
Before we address your query, let us first discuss the pertinent provisions of the Family Code which are relevant to your legal problem.

Article 40 of the Family Code, states, to wit:

“The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”

From the foregoing provision, it can be gleaned that before any married person, whose prior marriage is null and void, can contract a second marriage, it is required that his or her prior marriage must be declared by the court as null and void. In your case, you entered into another marriage without first securing a judgment from the court that your previous marriage is null and void.

Granting that your previous marriage is null and void because of the absence of a valid marriage license, still, you should have not contracted a subsequent marriage without first securing a final judgment before a competent court declaring that the marriage you contracted in 1997 is void ab initio.

With the assumption that you are a citizen of the Philippines but with a foreign country residency, at present, you have two (2) subsisting void marriages. Even your subsequent marriage with your present spouse is void for being contrary to Article 40 of the Family Code. Granting that even if your subsequent marriage was celebrated at a foreign country, it is worthy to note that Article 15 of the Family Code is a relevant provision because under the said provision, “laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” Therefore, the fact that you and your present spouse are residing abroad does not make your subsequent marriage valid. In your situation, you have two (2) marriages which should be declared void.

Regarding your query if you need to be in the Philippines to have your prior marriage be declared null and void, the answer is in the affirmative. You must be present at the trial of your petition and prove your case.

Pursuant to Section 5(3) on the “Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages”, the petition for declaration of nullity of marriage must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. It is also provided that if the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine Embassy or legation, consul general, consul or vice-consul or consular agent in the said country.

Thus, your presence during the trial of the case is required. However, for the purpose of filing your petition with the Office of the Clerk of Court of the appropriate trial court where you will file your petition, you may ask your lawyer to file the case for you after you have authenticated the verification and certification against forum shopping before the duly authorized officer of the Philippine Embassy or legation, consul general, consul or vice-consul or consular agent in the country where you are residing.

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

Doubtful paternity not ground for annulment of marriage

Dear PAO,
I found out that my wife is still meeting her former boyfriend through the pictures posted on the social media account of our common friend. I have also some doubts if I am really the father of our first child considering that I cannot see any semblance of myself in this child. Can I file an annulment case based on these grounds?    
Leonardo

Dear Leonardo,
The grounds for declaring a marriage null and void are those provided under the Family Code of the Philippines, which are as follows:

“Section 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either[party] or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without a license, except those covered by the preceding chapter;

(4) Those bigamous or polygamous marriages not falling under Article 41;

(5) Those contracted through mistake on one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.”

Aside from the abovementioned enumeration, the following are also grounds for declaring a marriage void: psychological incapacity to comply with the essential marital obligations of marriage (Article 36, Ibid.), incestuous marriages (Article 37, Id.) and those marriages which are considered void for reasons of public policy (Article 38, Id.).

In your situation, doubt as to the paternity of your child and sexual infidelity or adultery are not included as grounds for annulment. The sexual infidelity of your wife, however, if proven, is one ground for legal separation under Article 55 of the Family Code of the Philippines. If, in case, there was concealment by your wife of the fact that at the time of your marriage, she was pregnant by another man, then this will constitute fraud, which could be a ground for annulment of marriage under Article 45 (3), Id.

The Supreme Court enunciated in Dedel vs CA(G.R. No. 151867, January 29, 2004) that: “Respondents sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity or sexual promiscuity.”

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

Emancipation lets children, not parents, decide for themselves

Dear PAO,
My mother left me and my brother in 2001 because she had to work abroad. Our father was supposed to look after us but all he ever did was gamble. My parents have been married for almost 22 years, but my mother told me that they do not have any savings because my father squandered them away. My brother and I had a hard time coping with our studies, because there were years that we had to be pulled out from school. This happened because my father did not pay the rest of our tuition even if my mother had sent him enough money to answer for a year’s worth of tuition.

Now my mother has decided to stay in the Philippines, to look after us, and make sure that we finish our education. I am already 20 years old, and I will only start studying for college next school year. My brother is 18 years old, and will be entering 4th year high school. But the problem is, my father does not want us to stay with our mother. He said that his decision will prevail, and we cannot do anything about it. Is this true? Don’t we have any say or right just because he is our father? Please enlighten and help us.
Morgan

Dear Morgan,
Under our law, parental authority over minor legitimate children shall belong to both their mothers and fathers. In case of disagreement, the father’s decision shall prevail, except when there is a judicial order to the contrary. Parental authority includes the right to care and rear for the children so as to enhance their civic consciousness and efficiency as well as the development of their moral, mental and physical character and well-being (Article 211 in relation to Article 209, Family Code of the Philippines).

It should be stressed, however,  that parental authority does not last perpetually. Parental authority terminates permanently upon the death of the parents, the death of the child or upon emancipation of the child (Article 228, Ibid.). Parental authority also terminates by reason of the adoption of the child, upon appointment of a general guardian for the child, upon judicial declaration of abandonment of the child in a case filed for the purpose, by reason of a final judgment of a competent court divesting the party concerned of parental authority or upon judicial declaration of absence or incapacity of the person exercising parental authority (Article 229, Id.).

Based on the foregoing, your father and mother no longer have the right to exercise parental authority over you and your brother because such right has already been terminated considering that both of you have already been emancipated. Emancipation, under the law, takes place by the attainment of majority and unless otherwise provided, majority commences at the age of eighteen years (Article 234, Id.).

Accordingly, your father is incorrect in claiming that his decision has to prevail. His choices will no longer prevail insofar as your personal decisions are concerned, particularly as to whom you and your brother wish to live with. You may decide for yourselves given that, as already mentioned, both of you are of legal age already. Thus, you should choose where or with whom you and your brother will have sound opportunities and a good fighting chance of having a better future.

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