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

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

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

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

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

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

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

We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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

Separated husband who remarries commits bigamy

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

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

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

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

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

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

We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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

Kids from marriage on presumed death of first husband legitimate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to guide you with our opinion on the matter.

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

Spouses can seek separation of property

Dear PAO,

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

Theresa
 

Dear Theresa,

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

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

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

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

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

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

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

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

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

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

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

We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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