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

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

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

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

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

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

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

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

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

Separated husband who remarries commits bigamy

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

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

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

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

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

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

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

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

Kids from marriage on presumed death of first husband legitimate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Spouses can seek separation of property

Dear PAO,

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

Theresa
 

Dear Theresa,

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

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

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

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

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

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

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

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

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

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

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

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

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

Dad’s income determines support for his illegitimate children

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

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

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

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

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

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

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

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

Illegitimate child entitled to share from father’s inheritance

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

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

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

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

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

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

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

We hope that we were able to enlighten you on the matter.

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

Married woman not obliged to use husband’s surname

Dear PAO,
Is it mandatory for a wife to use her husband’s surname? 
Nica

Dear Nica,

Under the law, a married woman may use the surname of her husband. This is clearly provided by the New Civil Code of the Philippines, which states:

“Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s surname, or

(2) Her maiden first name and her husband’s surname or

(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as ”Mrs.””

It is clear that the above law gives a married woman the option to use the surname of her husband. Since it is discretionary, a married woman is not obliged to use her husband’s surname. In the case of Maria Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs (G.R. No. 169202, March 5, 2010), the Supreme Court explained:

“Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent.”

It is settled in the aforesaid case, however, that if a married woman started to use the surname of her husband in her passport, she cannot revert to the use of her maiden name unless her marriage to her husband has already been annulled, declared null and void or she was divorced by her husband and the divorce was already recognized in the Philippines. The Supreme Court in the said case also explained:

“In the case of renewal of passport, a married woman may either adopt her husband’s surname or continuously use her maiden name. If she chooses to adopt her husband’s surname in her new passport, the DFA [Department of Foreign Affairs] additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden name.

Once a married woman, however, opted to adopt her husband’s surname in her passport, she may not revert to the use of her maiden name, except in the cases enumerated in Section 5(d) of Republic Act 8239. These instances are: (1) death of husband, (2) divorce, (3) annulment or (4) nullity of marriage. Since petitioner’s marriage to her husband subsists, she may not resume her maiden name in the replacement passport. Otherwise stated, a married woman’s reversion to the use of her maiden name must be based only on the severance of the marriage.”

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 in your concern.

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