What makes a marriage null and void

Dear PAO,
I got married in 1995 but I had it declared null and void because of the absence of a marriage license when I contracted the marriage. However, right after the decision of the court, I married my second husband. I was told that I should have registered the decision of the court before I remarried. Is this true? Is my second marriage valid? Is my son from my second marriage illegitimate?
Ms. Pisces

Dear Ms. Pisces,
Indeed, a marriage celebrated without a marriage license where the parties are not exempted is null and void (Article 35(3), Family Code (FC) of the Philippines).

It is likewise provided that before the parties to a null and void marriage can remarry, they must first have their marriage declared null and void by the court (Article 40, FC).

Having complied with this, the former spouses can eventually remarry. However, there are things that they still need to do before getting married again. The Family Code of the Philippines requires them to register the decision of the court before the local civil registry. Likewise, the partition of the properties of the parties to the null and void marriage and the distribution of the presumptive legitimes of the children shall be recorded in the registry of property. This is particularly provided by Article 52 of the said law, which states:

“Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.”

Failure to fulfill the aforementioned provision shall render the succeeding marriage of the former spouses null and void (Article 53, FC).

Since you failed to register the decision of the court declaring your marriage null and void, the subsequent marriage you entered into is likewise null and void. However, your child from your second marriage is legitimate. This is according to Article 54 of the Family Code of the Philippines, to wit:

“Art. 54. xxx. Children conceived or born of the subsequent marriage under Article 53 shall likewise be 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 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

Proper middle name and surname of illegitimate child

Dear PAO,
I am a single parent and I have questions concerning the legal name of my daughter. The first relates to her middle name. In the birth certificate of my child, I erroneously wrote my middle name as her middle name. I thought that as an illegitimate child, my daughter should adopt my middle name and surname. How can I correct my mistake?

The second question relates to her surname. The father of my daughter never acknowledged her so she is using my surname. Now, I am in a relationship with another man and we plan to settle down soon. Is it possible to let my daughter use his surname instead, and then adopt my surname as her middle name?

Mimi

Dear Mimi,
It is a mistake to let an illegitimate child use the middle name of her mother as his own middle name. While it is true that our laws are silent with respect to middle names of illegitimate children, our Filipino custom or tradition is to add the surname of the child’s mother as the child’s middle name (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, 454 SCRA 541). Further, no less than our Supreme Court ruled in one case that an illegitimate child who is not recognized by the father bears only a given name and his mother’ surname, and does not have a middle name (Philippines vs. Capote, 514 SCRA 76). Applying the foregoing to your case and considering that you mentioned that your daughter was not recognized by her father, she should not have a middle name. Thus, her birth certificate should be corrected by deleting the entry on the middle name line.

To rectify the mistake, you may file a verified petition in court to correct the birth certificate of your child in accordance with Rule 108 of the Rules of Court. The said Rule covers cases which involves cancellation or correction of entries in the civil register relating to birth, marriages and deaths, among others which may not be administratively corrected under Republic Act No. 9048 as amended by Republic Act No. 10172.

Going to your second question about the possibility of letting your daughter use the surname of your present boyfriend and then use your surname as her middle name, the same may only be possible if you and your boyfriend get married and then adopt your child.

Through adoption, a relationship of parent and child is created between persons who are not generally related by nature (Persons and Family Relations Law, 4th ed., Sta. Maria, Melencio, p. 624). It creates a parental tie between the adopter and the adoptee. But this does not mean that a biological parent cannot adopt his own child. Our law on adoption expressly allows the adoption of an illegitimate child for the purpose of improving or raising his status to that of legitimacy (Sec. 8 (c), Republic Act (R.A.) No. 8552).

Upon the adoption of your daughter, she shall be considered your and your husband’s legitimate child for all intents and purposes and as such entitled to all the rights and obligations provided by law to a legitimate child (Sec. 17, R.A. No. 8552). As we know, a legitimate child has the right to bear the surnames of the father and the mother (Article 174, Family Code). Hence, your child will have the right to use the surname of your husband as her surname, and your surname as her middle name.

To realize your goal then, you and your boyfriend must marry first. After your marriage, you and your husband may jointly file a petition for adoption of your illegitimate daughter in order to create a parental tie between her and your husband as well as raise the status of your child to legitimate.
We hope the foregoing discussion shed light on the matter. Bear in mind that our opinion is based solely on the facts you narrated and our appreciation of the same. Our opinion may vary if actual facts and circumstances change.

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

Nephew qualified for adoption if parents are dead

Dear PAO,

I am 30 years old with a stable job. Am I qualified to legally adopt my nephew whose parents have died even if I’m only 30 years old?

Can I ask for assistance from PAO in filing the adoption?

Jackie

Dear Jackie,

Your nephew is qualified for adoption since his parents are already dead.

However, no proceedings for adoption shall be initiated within six (6) months from the time of death of his parents (Section 8, Republic Act (R.A.) No. 8552 or the Domestic Adoption Act of 1998). You are qualified to adopt him even if you are only thirty (30) years old as long as there is a sixteen (16)-year difference between your age and his age. Moreover, you should also meet all the qualifications provided in Section 7 of R.A. No. 8552, to wit:

In addition to the foregoing, you also need to get the written consent to the adoption of your nephew if he is ten (10) years of age or over and that of your husband, if you have any. If your have met all the qualifications, you may file your petition for adoption before the Family Court of the province or city where you reside. However, we regret to inform you that the Public Attorney’s Office (PAO) cannot provide legal assistance to you in filing a petition for adoption of your nephew pursuant to Section 8 of the PAO Operations Manual, to wit:

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

A child has right to financial support

Dear PAO,
I would like to ask for advice in behalf of my friend. Her father abandoned her since the time she was born. Her parents are not married.
She has been living with her maternal grandparents while her mother is currently living with another man abroad.
She is now 16 years old and will be entering college next school year. She wants to know whether she could still claim support from her father. If yes, what should she consider? Anticipating your soonest response.
Camilla

Dear Camilla,

Our laws recognize the right of a child to seek financial support from his or her parents which may be necessary to answer his or her needs for sustenance, dwelling, clothing, food, medical attendance, education and transportation. This right is granted not only to legitimate children but also to illegitimate children (Article 195 in relation to Article 194, Family Code of the Philippines).

However, we want to emphasize that the amount of support that a child may seek depends on her actual needs as well as to the financial capacity of her father. This is in consonance with Article 201 of the aforestated law which states that, “The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.”

Furthermore, we want to emphasize that the primordial responsibility of the child who is seeking support, or his or her legal guardian, is to establish his or her filiation with the parent or parents concerned, especially in the case of illegitimate children who are, more often than not, left under the care or custody of the other parent or other relatives.

Applying the foregoing in the situation of your friend, we submit that it will be essential for her to substantiate her claim that she is indeed the daughter of her alleged father in order for her to lawfully demand financial support from him. Accordingly, she must present proof of filiation, which may either be: (1) her record of birth appearing in the civil register or a final judgment; or (2) an admission of filiation in a public document or a private handwritten instrument and signed by her father. In the absence thereof, she may prove their filiation by: (a) her open and continuous possession of the status of an illegitimate child; or (2) any other means allowed by the Rules of Court and special laws (Article 172 in relation to Article 175, Family 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

Non-disclosure of premarital lewdness not a ground for marriage annulment

Dear PAO,
I’d like to annul my marriage to my husband. I recently found out that he slept several times with several of my friends and even one of my cousins before we got married. Worse, he never told me about it even after we agreed not to keep secrets from each other.
Although all of that happened before our marriage, I admit that I still feel betrayed since I would not have married him had I known about his hideous sexual exploits, which he fraudulently kept from me. So, can I use this as a ground to annul our marriage since I’ve read that you can annul a marriage if there is a fraud committed? I hope you can advice me on this matter.
Sharon
Dear Sharon,
In order to properly advice you with regard to your question, it is important that we first clarify that not all kinds of fraud can be a ground for annulment. The Family Code sets out the specific kinds of fraud that can be used as a ground to annul a marriage, 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.”
Note that after the cited law enumerated the specific forms of fraud for purposes of annulment of marriage, it clearly stated that no other misrepresentation can be used as a ground for it. Thus, considering the exclusive wording of the law, any other fraudulent act not among those mentioned here, no matter how grave it may seem, cannot be invoked to annul a marriage.
Furthermore, the question of whether such pre-marital relationships can be used as a ground for annulment has already been discussed by the Supreme Court in one of its enlightening decisions where it explained that:
“Non-disclosure of a husband’s pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that “no other misrepresentation or deceit as to . . . chastity” shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested” (Anaya vs. Palaroan, G.R. No. L-27930 November 26, 1970).
It can be seen here that while you may consider your husband’s non-disclosure of his pre-marital sexual relationship detestable and fraudulent, it still does not amount to fraud for purposes of annulling a marriage. As elaborated by jurisprudence, the law is clear and exclusive on what can be considered as fraud in relation to annulment of marriage. Thus, you cannot invoke your husband’s pre-marital activities to annul your marriage. Instead of lingering in the dark episodes of your husband’s past, focus on the present status of your marriage and on how both of you can improve your relationship.
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

Erroneous spelling in marriage certificate cannot invalidate marriage

Dear PAO,

I would like to inquire whether my marriage to my wife is valid considering that there is a discrepancy in our marriage certificate. My wife’s name is “Mary Ann” but her name is recorded in our marriage certificate as “May Ann”. To my knowledge, she has not noticed this error yet and I would like to use this as a ground to invalidate my marriage with her if it is possible. I hope your office can give me an advice. More power and God bless!

Rap-rap

Dear Rap-rap,

An error in the spelling of your wife’s name in your marriage certificate cannot and will not invalidate your marriage. The validity of a marriage is not dependent on the mere error on the spelling of the names of the parties in a marriage contract. The validity of a marriage is primarily based on specific legal requirements set by law. These requirements are called the essential and formal requisites of marriage. The absence of any of these requirements may result to a void ab intio marriage (Article 4, Family Code of the Philippines).

For your reference, the following are the essential and formal requisites of marriage as stated in the Family Code of the Philippines:

“Art. 2. 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. (53a)
Art. 3. The formal requisites of marriage are:
(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. (53a, 55a)”

In addition to these requisites, the law also provides other bases for a possible declaration of nullity of marriage which are found in Articles 35, 36, 37, 38, 45 and 53 of the Family Code of the Philippines, none of which however mentions typographical errors as a ground for nullification of marriage. Thus, please be reminded that while you may confirm if the other grounds for nullity of marriage apply to your case, the said error in the spelling of your wife’s name has no effect on the validity of your marriage.

Lastly, since the error in the spelling of your wife’s name in your marriage certificate is obvious to the understanding and can be corrected by reference to other existing records, it is considered to be merely a clerical error which can be remedied by filing a petition for correction of entry before the local civil registry office where your marriage certificate was registered.

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

source: Manila Times Column of Atty Persida Acosta

Court order not needed for civil registrar to correct clerical error in birth certificate

Dear PAO,
I would like to ask if there is any probability that I can change my surname into my father’s surname. I am now using my mother’s surname. When I was born they were not yet married, because my father had an ongoing petition from my grandparents in the USA. When I was two years old, Papa was diagnosed with cancer and decided to marry my mother.
The problem is, my mom’s surname in their marriage contract was misspelled as “Villacorta” instead of “Villanueva”. In my birth certificate though, my father was able to sign as my father. I am really hoping that you will help me with my inquiry. If ever there is a way to do this, may I know the procedure? Thank you.
Sincerely,
OPZ

Dear OPZ,
Based on your letter, four facts may be established: First, you were born before your parents were married, and the only reason your parents were not yet married was because your father had an ongoing petition in the United States of America (USA). Second, your father was able to acknowledge you as his child in your birth certificate. Third, soon after, your parents eventually got married. Fourth, your mother’s surname was misspelled in the marriage contract.

We strongly advise that your mother should have her surname corrected in her marriage certificate, so there will be no question when you apply for the use of your father’s surname. Republic Act (R.A.) No. 9048 authorizes the city or municipal civil registrar to correct a clerical or typographical error in an entry without need of a judicial order. If it is evident in their marriage certificate that the misspelling was clearly a typographical or clerical error, then she can avail of this remedy. Otherwise, she must file a petition in court for the correction of her surname.

Since your parents had no legal impediment at the time of your birth and they subsequently got married, you are considered as a legitimated child. A legitimated child is similar to a legitimate child, except for the fact that you were born prior to your parents’ marriage. Article 177 of the Family Code defines legitimated children as those “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…” Therefore, as far as the law is concerned, you were legitimated when your parents got married.

For you to enjoy all the benefits of a legitimated child, including the right to use the surname of your father, the fact of legitimation must be recorded in your certificate of live birth. In order to do this, you must submit the following requirements to the civil registrar where your birth was recorded:

(1) Certificate of Marriage of your parents;
(2) Your Certificate of Live Birth;
(3) Acknowledgment, but you do not need this, as you were acknowledged by your father in your birth certificate; and
(4) Affidavit of legitimation executed by both parents.
Once you submit all the requirements and the civil registrar sees that everything is in order, your original name appearing in your birth certificate shall not be erased or deleted.

Instead, an annotation in the remarks space stating “Legitimated by Subsequent Marriage” indicating the family name which you shall bear because of legitimation shall be written.
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

source:  Manila Times