Frequently
Asked Questions
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If my children
and I are abandoned by my husband (or live-in partner), how can
I get financial support from him?
Please
read my Legal Updates blog post Support
for abandoned woman and family.
Through
a Protection Order under RA
9262 “Anti-Violence Against Women and Their Children Act
of 2004”, the court will order your husband (or live-in
partner) and his employer to set aside a certain percentage of
his salary to be remitted directly to you and your children on
a monthly basis. If your husband (or live-in partner) and his
employer fail to do so, they can be charged with contempt of court.
The Family Code does not provide a specific percentage of the
monthly salary for the support. It only provides that the amount
of support is balanced between the necessities of the person asking
for support and the financial capability of the person from whom
support is being asked. Support will be reduced or increased proportionately,
according to the reduction or increase of the necessities of the
recipient (the abandoned woman and her children) and the resources
or means of the person obliged to furnish the support. Please
read also Hold
Departure Orders for OFWs under RA 9262.
My father died
leaving some properties to my mother and three children, including
me. How can we divide up his properties? What are the respective
shares?
You and your fellow
heirs can simply ask a lawyer to draw up a deed of extra-judicial
settlement of your father's estate. You can then have it notarized,
and then have the notice published in a newspaper of general circulation
once a week for three weeks. After you pay the corresponding taxes,
you can then present the deed, the notarized affidavit of publication
and the official receipts, to the Register of Deeds so that new
titles can be issued to your names (assuming of course that your
father left real properties).
Your mother gets one-half
of the estate as her conjugal share. The remaining half will then
be divided among your mother, you and your two other siblings.
(But nothing prevents heirs from giving up their share of the
inheritance, or from choosing and getting a lesser amount. For
example, instead of getting the farm in the province, one of the
heirs may choose to get as inheritance the brand new car.)
Please read
the following Legal Updates blog posts:
Heirs and inheritance
(Part 1): If
your spouse dies without a last will, who will inherit?
Heirs and inheritance (Part 2):
Legitimes, free portions, and intestate shares
Heirs and inheritance (Part 3): Rights
of illegitimate children when their parent dies without a last
will
Heirs and inheritance (Part 4): Who
inherits from an illegitimate child?
Heirs and inheritance (Part 5): The
right of legitimate children to inherit
Heirs and inheritance (Part 6): Settle
the estate of your deceased spouse before marrying again
Heirs and inheritance (Part 7): Is
property acquired before marriage the exclusive property of each
spouse or does it belong to both spouses?
Heirs and inheritance (Part 8): Do
inherited properties belong exclusively to the spouse who inherited
them or to both spouses?
Heirs and inheritance (Part 9): Last
will must be probated; Preterition (when a compulsory heir is
omitted in a last will)
Heirs and inheritance
(Part 10): Can
nephews and nieces inherit from their grandparents, unmarried
aunts or uncles?
Heirs
and inheritance (Part 11): Disinheriting
children and descendants, legitimate as well as illegitimate
Heirs
and inheritance (Part 12): Disinheriting
your spouse
Heirs
and inheritance (Part 13): When
a man is married to or living in with several women successively
or simultaneously, who has the right to inherit from him?
Heirs
and inheritance (Part 14): Article
176 Family Code: how to compute the inheritance of legitimate
and illegitimate children; An illegitimate child gets only 50%
of what a legitimate child is entitled to
Heirs and inheritance (Part
15): Who inherits from a man or woman who died single and with
no last will?
My husband has
an affair with his officemate. Can I charge him with adultery?
No,
you cannot charge your husband with adultery. Under the Revised
Penal Code, adultery is a crime committed by a wife and her paramour.
The case you should file can either be (1) concubinage against
your husband AND the other woman, or (2) psychological violence
against
your husband alone under
RA
9262 “Anti-Violence Against Women and Their Children Act
of 2004”.
Please
read my Legal Updates blog post Adultery,
concubinage, marital infidelity and psychological violence (read
also the comments and my replies to the comments).
What is the so-called
single parent leave under Republic Act No. 8972 “Solo
Parents’ Welfare Act of 2000”?
Section 8 of Republic
Act No. 8972 states that “in addition to leave privileges
under existing laws, parental leave of not more than seven (7)
working days every year shall be granted to any solo parent employee
who has rendered service of at least one (1) year.” Please
take note of the phrase “in addition to leave privileges
under existing laws.”
The Implementing
Rules and Regulations of RA 8972 state:
Section 18. Parental
Leave – In addition to leave privileges under existing laws,
parental leave of not more than seven (7) working days every year
shall be granted to any solo parent employee who has rendered
service of at least one (1) year. The seven-day parental leave
shall be non-cumulative.
Section 19. Conditions
for Entitlement of Parental Leave – A solo parent shall
be entitled to parental leave provided that:
(a) He/She has rendered
at least one (1) year of service whether continuous or broken
at the time of the effectivity of the Act;
(b) He/She has notified
his/her employer of the availment thereof within a reasonable
time period; and
(c) He/She has presented
a Solo Parent Identification Card to his/her employer.
Section 20. Non-conversion
of Parental Leave – In the event that the parental leave
is not availed of, said leave shall not be convertible to cash
unless specifically agreed upon previously. However, if said leave
were denied an employee as a result of non-compliance with the
provisions of these Rules by an employer, the aforementioned leave
may be used a basis for the computation of damages.
Section 21. Crediting
of Existing Leave – If there is an existing or similar benefit
under a company policy, or a collective bargaining agreement or
collective negotiation agreement the same shall be credited as
such. If the same is greater than the seven (7) days provided
for in the Act, the greater benefit shall prevail.
What if there
are already benefits under company policies or provisions of the
CBA? Can the parental leave still be availed of? The
question that should be resolved is: Are the benefits similar
to or greater than the parental leave under RA 8972? If not, then
such benefits under company policies or CBA provisions cannot
be credited under Section 21.
Companies, in seeking
ways to save on costs and expenses, sometimes refuse to grant
the solo parent leave. They claim that that there are existing
or benefits similar to the solo parent leave under company policies.
If you are a solo parent working for a company that refuses
to grant the solo parent leave by claiming that Section 21 of
the IRR is applicable, then you should seek the help of the Public
Assistance and Complaints Unit of the DOLE. The PACU
will help you file a complaint and then call you and your employer
to a mediation/conciliation conference. If nothing comes out of
the conciliation, the PACU will endorse your complaint to the
National Labor Relations Commission.
What is the difference
between adoption and simulation of birth?
Adoption is the legal
process by which a child becomes the legitimate child of the adopting
person/s. The law which governs domestic adoption is Republic
Act 8552 or the Domestic Adoption Act of 1998.
Simulation of birth
on the other hand occurs when a childless couple, for example,
comes into possession of a baby or child, given to them by a midwife,
an unwed mother or a relative, and this couple then applies for
a birth certificate, making it appear that the baby or child is
their biological offspring. Under RA 8552, simulation of birth
is a criminal offense punishable by eight years imprisonment and
a fine of fifty thousand pesos.
Please surf to my Salt
and Light blog for the procedures
in petitions for adoption.
My husband found
out that our marriage certificate is not on file with the National
Statistics Office. He said that our marriage is therefore not valid,
and that he can get married to another woman. Is my husband correct?
Your husband is wrong.
The lack or absence of a marriage certificate (or contract) in
the files of the NSO does not make your marriage invalid. The
marriage certificate (or contract) is not an essential
or formal requisite for the validity of a marriage under the Family
Code.
The marriage certificate
is a powerful documentary evidence of the existence of your marriage.
Even then, however, the existence or validity of your marriage
can be proven by other evidence - the marriage license, the testimony
of the officiating minister and the witnesses, wedding pictures,
etc.
Should your husband
therefore insist on getting married again, you can charge him
with bigamy under the Revised Penal Code.
What are the
rights of illegitimate children?
Under Republic
Act 9255, Article 176 of the Family Code has been amended,
allowing illegitimate children 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. The father, however,
has the right to institute an action before the regular courts
to prove non-filiation during his lifetime."
Also, whatever a legitimate
child gets in terms of inheritance, the illegitimate child is
entitled to one-half. For example, if the legitimate child gets
one hundred thousand pesos as his share in the inheritance, the
illegitimate child gets fifty thousand pesos.
Please take note that
even if the child is using the biological father's surname under
RA 9255, the child is still illegitimate. Thus, sole (exclusive)
parental authority belongs to the mother. What the biological
father has is visitation right.
Please read
the following Legal Updates blog posts:
DNA
testing to prove legitimacy or illegitimacy of children; Supreme
Court’s New Rule on DNA Evidence
Visitation
rights over illegitimate children
What
surname should illegitimate children use? Problems and issues
with RA 9255 and its implementing guidelines
Article
176 of the Family Code: computing the legitimes of legitimate
and illegitimate children; an illegitimate child gets one-half
If
a wife gets pregnant by a man not her husband, will the child
be legitimate or illegitimate?
My boyfriend
and I are both above 21 years of age, and we want to get married,
with our parents' consent. But the Local Civil Registrar won't issue
a marriage license because my boyfriend can't produce his birth
certificate. What can we do?
Please point out to
the LCR the last portion of Article 12 of the Family Code which
states,
"The presentation of birth
or baptismal certificate shall not be required if the parents
of the contracting parties appear personally before the local
civil registrar concerned and swear to the correctness of the
lawful age of said parties, as stated in the application, or when
the local civil registrar shall, by merely looking at the applicants
upon their personally appearing before him, be convinced that
either or both of them have the required age. "
Is there any
difference between annulment and declaration of nullity of marriage?
Under
Articles 35 up to 54 of the Family Code, some marriages are considered
either void or voidable. Technically speaking, annulment refers
to the legal action declaring void those marriages considered
as voidable (that is valid until annulled). On the other hand,
declaration of nullity refers to those marriages considered as
void from the very beginning.
In laymen's language,
however, annulment is often used as a generic term for the legal
action concerning both kinds of marriages.
What is the difference
between divorce and declaration of nullity?
In divorce (which is
non-existent in the Philippines), the grounds or reasons for such
arise during the marriage. In declaration of nullity of a marriage
(as provided for by the Family Code), the grounds or reasons are
already existing even before the marriage, but such grounds may
have manifested themselves only during the marriage.
In practical effect,
however, both divorce and declaration of nullity of a marriage
allow the former spouses to get married again to other persons.
What is psychological
incapacity?
Article
36 of the Family Code provides, "A
marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential
marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization."
The Supreme Court in the case
of Santos vs. Court of Appeals stated, "psychological incapacity
under Article 36 of the Family Code is not meant to comprehend
all possible cases of psychoses. It should refer, rather, to no
less than a mental (not physical) incapacity that causes a party
to be truly incognitive of the basic
marital covenants that concomitantly must be assumed and discharged
by the parties to the marriage. Psychological incapacity must
be characterized by (a) gravity, (b) juridical antecedence, and
(c) incurability."
The Supreme Court expounded, in greater detail,
in Republic
v. Court of Appeals what psychological incapacity
is:
(1) The burden of proof to
show the nullity of marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation
of the marriage and against its dissolution and nullity.
This is rooted in the fact that both our Constitution and our
laws cherish the validity of marriage and unity of the family.
Thus, our Constitution devotes an entire Article on the Family,
recognizing it as the foundation of the nation. It decrees marriage
as legally inviolable, thereby protecting it from dissolution
at the whim of the parties. Both the family and marriage are to
be protected by the state. The Family Code echoes this constitutional
edict on marriage and the family and emphasizes their permanence,
inviolability and solidarity.
(2) The root cause of the
psychological incapacity must be a) medically or clinically identified,
b) alleged in the complaint, c) sufficiently proven by experts
and d) clearly explained in the decision. Article 36 of the Family
Code requires that the incapacity must be psychological not physical,
although its manifestations and/or symptoms may be physical.
The evidence must convince the court that the parties,
or one of them, was mentally or physically ill to such
an extent that the person could not have known the obligations
he was assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be
given here so as not to limit the application of the provision
under the principle of ejusdem
generis, nevertheless such root
cause must be identified as a psychological illness and its incapacitating
nature fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be
proven to be existing at the time of
the celebration of the marriage. The evidence must show that the
illness was existing when the parties exchanged their “I do’s.”
The manifestation of the illness need not be perceivable at such
time, but the illness itself must have attached at such moment,
or prior thereto.
(4) Such incapacity must
also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard
to the other spouse, not necessarily absolutely against everyone
of the same sex. Furthermore, such incapacity must be relevant
to the assumption of marriage obligations, not necessarily to
those not related to marriage like the exercise of a profession
or employment in a job. Hence, a pediatrician may be effective
in diagnosing illnesses of children and prescribing medicine to
cure them but may not be psychologically capacitated to procreate,
bear and raise his/her own children as an essential obligation
of marriage.
(5) Such illness must be
grave enough to bring about the disability of the party to assume
the essential obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional
emotional outbursts cannot be accepted as root causes. The illness
must be shown as downright incapacity or inability, not a refusal,
neglect or difficulty, much less ill will. In other words, there
is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby complying
with the obligations essential to marriage.
(6) The essential marital
obligations must be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and wife as well as Articles
220, 221 and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also be
stated in the petition, proven by evidence and included in the
text of the decision.
Sexual infidelity, per se, however,
does not constitute psychological incapacity within the contemplation
of the Family Code. It must be shown that respondent Manuel’s
unfaithfulness is a manifestation of a disordered personality
which makes him completely unable to discharge the essential obligations
of the marital state and not merely due to his ardent wish to
have a child of his own flesh and blood.
An unsatisfactory marriage, however,
is not a null and void marriage.
Mere showing of irreconcilable
differences and conflicting personalities in no wise constitutes
psychological incapacity. As we stated in Marcos v. Marcos:
Article 36 of the Family Code, we stress, is not to be confused with a
divorce law that cuts the marital bond at the time the causes
therefore manifests themselves. It
refers to a serious psychological illness afflicting a party even
before the celebration of the marriage. It is a malady so grave
and so permanent as to deprive one of awareness of the duties
and responsibilities of the matrimonial bond one is about to assume.
In Barcelona
vs. Court of Appeals, a 2003 case, the Supreme Court stated,
"The
obvious effect of the new
Rules providing that expert opinion need not be alleged in
the petition is that there is also no need to allege the root
cause of the psychological incapacity. Only experts in the fields
of neurological and behavioral sciences are competent to determine
the root cause of psychological incapacity. Since the new Rules
do not require the petition to allege expert opinion on the psychological
incapacity, it follows that there is also no need to allege in
the petition the root cause of the psychological incapacity.
"Science
continues to explore, examine and explain how our brains work,
respond to and control the human body. Scientists still do not
understand everything there is to know about the root causes of
psychological disorders. The root causes of many psychological
disorders are still unknown to science even as their outward,
physical manifestations are evident. Hence, what the new Rules
require the petition to allege are the physical manifestations
indicative of psychological incapacity."
Please read the
following Legal Updates blog posts:
The
Amy Perez case: Psychological incapacity in annulment of marriages
Sexual
infidelity or promiscuity does not constitute psychological incapacity
“Irreconcilable
differences” not a ground for declaring a marriage null
and void
What
happens in an annulment case if the respondent fails to file an
Answer?
For
the legal procedures and steps, please read:
Supreme
Court Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages
What are the
effects when a marriage is declared null and void under Article
36 of the Family Code?
Articles
50 up to 54 of the Family Code provide for the effects when
a marriage is annulled or declared null and void. Among others,
the children are considered as legitimate, and their presumptive
legitimes must be given to them before the judgment can become
final.
What is the difference
between legal separation and declaration of nullity?
The grounds or reasons
are different, and more importantly, in legal separation, the
spouses are not allowed to get married again to other parties.
The wife also still has to use her husband's surname. (Practically
no one therefore wants to file for legal separation; almost everyone
in marital troubles will choose to have his or her marriage declared
null and void.)
Can I get married
to my first cousin?
No, you cannot. You
are related to your cousin by four civil degrees. This kind of
marriage is prohibited by public policy (Article
38 of the Family Code).
From you to your father
or mother, that is one degree. From your father or mother, to
your grandparents, that is another civil degree. From your grandparents
to your uncle or aunt, that is another degree. And from your uncle
or aunt to your first cousin, is another degree, making a total
of four degrees.
How can I have
my birth certificate corrected?
For change of first
name, and for correction of minor clerical errors, you can simply
file an administrative petition with the Local Civil Registrar
of your place of birth or residence, under Republic
Act 9048, also called the "Guinigundo Law."
For substantial errors,
however, like errors in birthdates, gender, etc. you will have
to file the proper petition with the Regional Trial Court of the
place that issued your birth certificate.
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