The 4 elements of bigamy

Dear Loveliness,
Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines. In order for a person accused of the commission thereof to be held criminally responsible, the following elements must exist: The offender is legally married; the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; a second or subsequent marriage is contracted; and such second or subsequent marriage has all the essential requisites of a valid marriage.

In the situation of your cousin, it is apparent that the first and second elements are present. The presence of the third and fourth elements, however, is doubtful. While your cousin signed a document, which was purported to be a contract of marriage, that document alone will not suffice to conclude that he is, in fact, married to his former girlfriend. Keep in mind that there is only a valid contract of marriage if the following essential and formal requisites are present: legal capacity of the contracting parties who must be a male and a female; consent freely given by the parties in the presence of the solemnizing officer; the solemnizing officer has authority to solemnize the marriage; a valid marriage license, except in the cases allowed by law; and a marriage ceremony that takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not fewer than two witnesses of legal age (Articles 2 and 3, Family Code of the Philippines).

Since your cousin and his former girlfriend did not appear to have secured a valid marriage license, and neither was there a marriage ceremony that took place in accordance with the tenets of our law, it cannot be argued that all the elements to a valid contract of marriage are present. Thus, we are inclined to believe that there exists no true contract of marriage between them. Taking these into consideration, we are not persuaded to conclude that a case for bigamy against your cousin will prosper in court.

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

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

Conjugal share of unfaithful wife

Can a wife who has abandoned her husband and lived with other men still claim her share in the conjugal properties? This is answered in this case of Marissa.

Marissa has been married to Victor for six years when Victor filed an application for a homestead patent over several hectares of land they were occupying and cultivating. In his application, Victor described himself as “married to Marissa.” But after 9 years of marriage and while his application for a homestead patent was still pending, Marissa abandoned Victor and their three daughters. Since Marissa abandoned him and their children, Victor had not heard from her or even cared to know her whereabouts. To him Marissa was already “dead.” Unknown to Victor and their 3 daughters, Marissa had adulterous relations with other men. In fact she begot 11 children with the second man.

It was during his estrangement from Marissa when Victor’s homestead application was finally granted 14 years after he filed the application. The original certificate of title over the homestead was issued in favor of Victor, who described himself as a “widower.”

Twelve years later, Victor died. Soon after his death, Marissa reappeared and tried to assert her conjugal rights as the surviving wife of Victor. After abandoning Victor during his lifetime to live with other men, Marissa had the gall to go to the Land Registration Court and filed a motion praying that the description in Victor’s Certificate of Title be changed from “widower” to “married to Marissa.” The daughters naturally opposed said motion. Could the title be changed as requested by Marissa?

No. The change sought by Marissa is not authorized by law. The amendment of a certificate of title is allowed under Sec. 112, Act 496 only if there is unanimity among the parties, or there is no adverse claim or serious objection on the part of any party in interest. In this case, the daughters of Victor rejected and opposed the amendment. Hence the title cannot be simply amended. The proper process is to institute the intestate proceedings of the estate of Victor where Marissa may file against its administrator the corresponding ordinary action to claim her alleged right over the lot in question (Sotto vs. Jarena 144 SCRA 116).

Unfaithfulness does not pay.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

E-mail: attyjosesison@gmail.com

source:  A LAW EACH DAY (KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star)

Mothers should have custody of illegitimate children

Dear PAO,
Can my ex-boyfriend get the custody of our child? According to him, since our child used his surname, he is then the rightful parent to take custody of our child. 
Kailyn

Dear Kailyn,
The status of a child born out of wedlock is illegitimate. Being illegitimate, parental authority over his/her person is exclusively exercised by his/her mother. Likewise, the child shall use the surname of his/her mother, but if he/she was acknowledged by his/her father, he/she may use the latter’s surname. This is according to Article 176 of the Family Code of the Philippines, which provides:

“Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. xxx”

Clearly, the mother of an illegitimate child shall always enjoy the right to take the custody of the child. This is her right which cannot be denied from her, it being part and parcel of her parental authority over the child. Save for those compelling reasons which render her unfit to exercise the same. The Supreme Court in the case of Joey D. Briones vs. Maricel P. Miguel et al. (G.R. No. 156343, October 18, 2004) had the opportunity to enumerate these compelling reasons, to wit:

“Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else. In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.”

On the other hand, the act of a father recognizing his illegitimate child gives him the right to see or at least visit the child especially so if he is extending financial support to the child. It does not however bestow upon him the right to demand the custody of the child.

Thus, your child shall remain in your custody even if he/she was recognized by his/her father and he/she is using the latter’s surname, unless the father can prove that you are unfit to perform your duties and obligations as the sole custodian of the child and he was given the custody of your child in relation to the abovementioned instances.

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

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

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

No middle name for illegitimate children

Dear PAO,
I am an illegitimate child. I am using the surname of my mother, and have no middle name in my birth certificate. I am applying for work abroad, and I was advised by my recruitment agency to put a middle name in my passport. Can I use the middle name of my mother as my middle name? How can I have a middle name?
KT

Dear KT,
Section 1 of Republic Act (R.A.) No. 9255 provides that illegitimate children shall use the surname and shall be under the parental authority of their mother. They may only be allowed to use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father, provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime.

You did not mention if you were duly recognized by your father as his own illegitimate child. If this is the case, you may still be able to use his surname even if you were previously registered under the surname of your mother. You may do so by going to the Local Civil Registry Office of the place where your birth certificate was registered and submitting to them their documentary requirements. Once you were able to use the surname of your father, you shall be using the surname of your mother as your middle name.

On the other hand, if you were not duly recognized by your father, you will only be allowed to use the surname of your mother and will not have a middle name. Middle names serve to identify the maternal lineage or filiation of a person as well as to further distinguish him from others who may have the same given name and surname as he has. (In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang vs. Cebu City Civil Registrar, G.R. No. 159966, March 30, 2005). If you will use the middle name of your mother, you might be mistaken as your mother’s sibling rather than her child.

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

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

Six grounds for annulment of marriage

Dear PAO,
I am a mother of three children. My husband left us, and we have been separated for 15 years now. He has not given enough support for our children. For the most part, he will just give when and as he pleases. Now that our children are in college, he no longer provides support.

If truth be told, I am no longer after the support for my children. I was able to raise them with very little support from my husband. I am more after now for the nullification of our marriage so that I can finally free myself from him, and so that if ever I will invest in properties, it will not form part of our community property, because it will be unfair for me and for my children. What are the requirements needed and the process which I must undertake? I hope you can advise me. Thank you and more power.
Jhing

Dear Jhing,
Physical separation between spouses does not necessarily entitle either party to the filing of a petition to nullify or annul his or her marriage. Our laws require that there be legal basis in filing such petition in court.

Pursuant to our Family Code, only the following are considered as valid grounds for the declaration of absolute nullity of marriage: (1) either party is below 18 years of age, even with the consent of parents or guardians; (2) marriage was solemnized by a person not legally authorized to perform marriages, unless it was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) marriage was solemnized without license, except those allowed under the law; (4) bigamous or polygamous marriages not falling under Article 41; (5) marriage was contracted through mistake of one contracting party as to the identity of the other; (6) subsequent marriages that are void under Article 53; (7) either party was psychologically incapacitated to comply with the essential marital obligations of marriage at the time of the celebration of the marriage; (8) incestuous marriages; (9) marriages which are void from the beginning for reasons of public policy (Articles 35, 36, 37 and 38, Ibid.)

Insofar as filing a petition for annulment of marriage, any of the following grounds must be present: (1) either party was 18 years of age or over but below twenty-one, and the marriage was solemnized without the consent of his parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, he/she freely cohabited with the other party; (2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other; (4) the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other; (5) either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, Id.)

Accordingly, you may only file a petition to nullify or annul your marriage if any of the foregoing grounds exist in your marriage. Such petition must be filed before the regional trial court, sitting as a family court, of the place where you reside or where your husband resides, at your election. Should the court grant your petition, the absolute community of property or the conjugal partnership which was established between you and your husband during your marriage, as the case may be, shall be dissolved and liquidated. (Article 43 (2) in relation to Article 50, Id.) Any property acquired thereafter shall solely belong to the party who purchased or obtained it, or to whoever is named as donee if it be by reason of donation.

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

Establishing filiation of illegitimate children

Dear PAO,
Under our laws at present, how can a father show that he recognizes his child? Does a letter coming from a putative father addressed to the US Embassy allowing his child to travel constitute as sufficient form of recognition? Article 271 of the Civil Code mentions a manner of recognition by parents. Kindly explain what this means. Thank you.
RL 33

Dear RL 33,
You are correct in stating that Article 271 of the Civil Code made mention of a child’s recognition by his or her parents. We, however, want to emphasize that this legal provision has been repealed pursuant to Article 254 of Executive Order 209, as amended, or more commonly known as the Family Code of the Philippines.

Under our laws at present, the filial relationship of legitimate children may be established by any of the following means: (1) record of birth appearing in the civil register or a final judgment; or (2) admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by the open and continuous possession of the status of a legitimate child, or any other means allowed by the Rules of Court and special laws (Article 172, Family Code).

Where illegitimate children are concerned, their illegitimate filiation may be established in the same way and on the same evidence as legitimate children (Article 175, Family Code).

Applying the foregoing in the situation that you have presented, it may be said that the letter that was executed by the putative father addressed to the Embassy of the United States, allowing his child to travel may serve as a proof of such recognition, provided that he clearly and explicitly admits therein his illegitimate filiation with the child concerned. If the letter is not duly notarized or does not appear in a public instrument, it must be handwritten and signed by the father of the child.

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

source:  Manila Times

Marriage without license not valid

Dear PAO,
My husband is an Indian national. We got married in 2007. A year thereafter, I left him because I learned that he has a wife in India and they have two children. I just remembered that, prior to our wedding, he avoided getting his certificate of legal capacity to contract marriage, and so we were married without a marriage license. I also realized that he merely married me in order for him to continue staying here in the Philippines. Now, I just want to know if our marriage is even valid. If it is not, does that mean that I can marry another man? 
GS

Dear GS,
Marriage is a contract which binds the parties thereof. Like other contracts, our laws provide for a set of requisites in order to consider a contract of marriage valid and binding. According to Article 2 of the Family Code of the Philippines: “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.” Article 3 of the said law further provides the formal requisites of a contract of marriage, to wit: “(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.”

Given that a valid marriage license is one of the formal requisites mentioned under the law, the absence thereof renders a marriage void ab initio. (Article 4, Id.) This is further emphasized under Article 35 of the Family Code of the Philippines which provides that: “The following marriages shall be void from the beginning: x x x (3) Those solemnized without license, except those covered in the preceding Chapter; x x x”

Accordingly, your marriage with your husband is considered void from the very beginning because, as you have mentioned, your marriage was celebrated despite the absence of a valid marriage license.

Apart from that, your marriage may be considered bigamous if you can establish that your husband is, in fact, already married to another woman prior to the celebration of your marriage. This may serve as another basis for the nullity of your marriage. (Article 35 (4), Id.)

However, we want to emphasize that you cannot simply contract a subsequent marriage with another man. You must first seek for the declaration of nullity of your marriage before the proper court by filing the necessary petition. While a marriage may be considered void for causes provided under the law, it is not for the parties to declare the same on their own. The authority still rests upon our courts.

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