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

Consummated crime

Is a person still liable for the crime of bigamy despite the fact that after contracting the second marriage, his first marriage has been judicially declared null and void? This is the question raised and resolved in the case of Charlie.

Charlie has been civilly married to Tina for almost 9 years. Since they got married before a Judge of a Metropolitan Trial Court of Muntinlupa City on Oct. 25, 1992, Tina left to work abroad and would only come home to the Philippines for vacations. Such situation apparently led Charlie into the arms of another woman, Nena whom he courted and eventually married on Nov. 12, 2001 in Meycauayan, Bulacan according to the rites of a Protestant Church.

So when Tina went home for a vacation in 2002, she was informed of such marriage between Charlie and Nena. To verify the information, she went to the National Statistics Office and secured a copy of the marriage certificate confirming the marriage of Charlie and Nena. But since she was working abroad, she had no time to immediately take any steps against Charlie.

It was only on March 14, 2006, when Tina’s uncle filed before the Office of the Provincial Prosecutor of Malolos, a complaint accusing Charlie of committing the crime of bigamy. And on May 7, 2006, Charlie was charged before the Regional Trial Court (RTC) of Bulacan with bigamy defined and penalized under Article 349 of the Revised Penal Code as amended.

It turned out however that Charlie had also filed an action before the RTC of Caloocan City for the declaration of nullity of his marriage to Tina on the ground of the latter’s psychological incapacity to comply with her essential marital obligation. The RTC of Caloocan has already rendered a decision declaring his marriage to Tina null and void which became final on May 28, 2006.

Using this final judgment declaring his first marriage to Tina null and void, Charlie claimed that there is no bigamy to speak of because there is in effect no such first marriage to Tina. He tried to differentiate between a previously valid but voidable marriage and a marriage null and void from the beginning (ab initio) and contended that while a voidable marriage requires a judicial dissolution before one can validly contract a second marriage, a void marriage need not be judicially determined.

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

But the RTC nevertheless convicted Charlie of the crime of bigamy and sentenced him to suffer the penalty of imprisonment of 4 years, 2 months and 1 day, minimum to 6 years and 1 day as maximum. Was the trial court correct?

Yes. A judicial declaration of absolute nullity of a previous marriage is necessary before a person can contract a second marriage. Parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of that marriage before they can be allowed to marry again.

In this case, Charlie legally married Tina on Oct. 25, 1992. He contracted a second and subsequent marriage with Nena on Nov. 12, 2001. At the time of his second marriage to Nena, his first marriage to Tina was still legally subsisting. The decision declaring his first marriage to Tina became final only on May 28, 2006 or about 5 years after his second marriage to Nena. It is evident therefore that he has committed the crime charged. Criminal culpability attaches to the offender upon commission of the offense.

If Charlie’s contention will be allowed, a person who commits bigamy can simply evade prosecution or conviction by immediately filing a petition for declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him or before he is convicted of the crime charged (Teves vs. People, et. al. G.R. 18775, August 24, 2011, 656 SCRA 307).

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E-mail: attyjosesison@gmail.com

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

Illegitimate child has to use mother’s surname

Dear PAO,
I recently went to the DFA office to apply for a passport and was declined. I was told that I still need to secure an affidavit to use my father’s surname. I got really confused because although I have my mother’s surname on my birth certificate, I’ve been using my father’s surname ever since, and that was the first time someone told me that.

My parents only got married seven years after I was born. My father was able to secure an Affidavit of Admission of Paternity and an Affidavit for Delayed Registration of Birth. Both of these documents were attached to my birth certificate. Are these documents enough proofs that I am a legitimate child, and have the right to bear my father’s surname? What should I do regarding these concerns?
Christine

Dear Christine,
The law is clear that a child born out of wedlock is illegitimate. An illegitimate child shall use the surname of his/her mother. Nevertheless, he/she may use the surname of his/her father, provided he/she was acknowledged by the latter (Article 176, Family Code of the Philippines as amended by Republic Act No. 9255).

Based on your narration, it is clear that you were an illegitimate child when you were born, since your parents were yet to marry each other at the time and were only able to do so seven years later. Being illegitimate, you shall bear the surname of your mother, but you may use the surname of your father provided that you were recognized by the latter as his child.

Perhaps, this was explained to you at the Department of Foreign Affairs (DFA), when you tried to obtain a passport there. To formally use the surname of your father under the law, you have to register with the Office of the Local Civil Registrar where your Certificate of Live Birth is registered, the fact that you were expressly recognized by your father, together with the Affidavit to Use the Surname of the Father, among other things.

But the subsequent marriage of your parents, assuming that they have no legal impediment to marry each other during the time that you were conceived up to the time that they were married, through the process of legitimation, changed your status from illegitimate to legitimated.

By way of legitimation, an illegitimate child, by operation of law is considered legitimate, by virtue of the subsequent marriage of his/her parents, granting that during the period of his/her conception until the time of the said marriage, his/her parents had no legal impediment to marry. This is according to Articles 177 and 178 of the Family Code of the Philippines as amended by Republic Act 9858, which provides:

“Article 177. 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, 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.”

Being legitimated, you are entitled to all the rights and privileges enjoyed by a legitimate child and the same shall retroact to the time of your birth. One of such rights is to bear the surname of your father (Articles 174(1), 179 and 180, Family Code of the Philippines).

To register your subsequent legitimation, all you have to do is to visit the Office of the Local Civil Registrar where your Certificate of Live Birth is registered. You just have to comply with all the requirements and follow the procedure established for the purpose. Once registered, you may now officially use the surname of your father.

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

The woman without a country?

A petition to disqualify Grace Poe has been lodged by my pal, Dean Amado Valdez, with whom I am normally in agreement — and am I surprised when we differ. He contends that the Senator is not qualified in the 2016 presidential elections on the following grounds:

1. Assuming that Grace Poe was a natural-born citizen, she lost her status as natural-born when she

Renounced her Filipino citizenship in 2001 to become an American citizen. She never regained her natural born status. At best, she is a repatriated Filipino citizen under RA 9225.

It seems to me being a natural-born Filipino is a one-time permanent thing. As Chief Justice Roberto Concepcion taught us in senior law, a natural-born Filipino “is one born a Filipino.” One is born only once. That concept, to me, is unchanging. One is a natural-born Pinoy, Martian or Manchurian Candidate. Losing one’s natural-born status seems an impossibility, like losing my birthplace of Mauban, Quezon, my sainted mother, my birth date, etc. Immutable. We cannot square the circle.

2. She has not completed her ten-year residency reckoned, at the earliest, from july, 2006 when she re-acquired her Filipino citizenship, and at the latest on 20 october 2010 when she renounced her American citizenship.

Residence was required to make sure one was aware of what was going on in the community and the country. For a caring Pinoy, that is now the easiest thing to do, without being physically present. We are talking of only a few months and therefore the issue has de minimis significance, if at all. The intent of the law is to exclude a stranger and a newcomer, unacquainted with the conditions and needs of the community and not identified with the latter. That may well be but it represents the best thinking of a jurassic era.

When I was in Rizal High, I would walk two or three kilometers for lunch at home and to catch the one o’clock Sports Parade of Willie Hernandez, to find out how the New York Yankees had fared the day before. Today we can watch sports events world-wide, live. And edifying presidential debates.

I chat with my family at home and then I am told my daughter Lara, with a doctorate in philosophy – children’s studies, now teaching tenure-track in New York, is there, on screen, to chat with her siblings here, live. There is the I-Pod, computer, cellphones, etc.
that make it possible for concerned Pinoys abroad who care to follow daily what goes on here.

Art. 15 of the Universal Declaration of Human Rights guarantees against statelessness. Art. 25 says to care for love children. In Makati Elementary, we read about Philip Nolan, The Man Without a Country. Was Grace ever The Woman Without a Country?

I may sound Emotionalized. I prefer Passionate, for all my life I have preferred to be on the side of the one being dumped on and kicked around. Do we kick around a Poe-Lot who comes to this world with two strikes against him/her? Underdogs, weeping alone, my kind of people, for whom I have worked, prayed and fought with that kind of passion that whips the blood.

I don’t want the unelected Commission on Elections and the unelected Supreme Court ruling on the tough issue. Not even the partly elected Senate Electoral Tribunal, whose widely-admired Chair, Justice Tony Carpio, inexplicably and uncharacteristically prejudged Grace’s case on Day One, without waiting for all the arguments to be in, leaving him no wiggle room. He should have waited until after all the evidence and arguments are in.

The choice of who will lead the country is the quintessential political question falling under its second kind.

The concept of “political question” is limited to two: 1) when the matter is exclusively left to a body to decide, like disorderly behavior of a member of Congress for something said say, in a privilege speech; it may be questioned there but not in any other place, such as the courts; or 2) when it is left to the people to decide in their sovereign capacity.

“But where the matter falls under the discretion of another department or especially the people themselves, the decision reached is in the category of a political question and consequently may not be the subject of judicial review.” I. Cruz and C. Cruz, Phil. Political Law 140 (2014).

I may be wrong but I should not have to be blamed for something drilled in me by Chief Justice Concepcion in San Beda and Prof. Albert Sacks in Harvard Law and adopted by Justice Isagani Cruz and his son, Carlo.

Let the sovereign people, the bosses, decide in a society that would be humane under our constitutional preamble.

Am I voting for Grace? Decency I always associate with FPJ and Susan. Osmosis should work and result in Designer Genes.

But, in fact, I have not made up my mind. It’s just that I don’t want any foundling being dumped on and kicked around. Art. 24 of the Civil Code says the system must be vigilant in protecting the handicapped, and ang putok sa buho, which Shakespeare lamented in King Lear, “Why bastard? wherefore base” – merits sympathy, understanding and compassion.

Campaign against her but let her be among the cards to be dealt our people in 2016.

source:  Manila Times Column by RENE SAGUISAG