Wednesday, December 06, 2006

Family Code of the Philippines: Primer on void and voidable marriages



(Note: Click the picture to download a free PDF newsletter on this topic.)

The complete provisions of the Family Code on void and voidable marriages are Articles 35 up to 54. What marriages are void from the beginning?

Article 35 of the Family Code provides that the following marriages are 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 the marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered under the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
What is the famous “Article 36” of the Family Code? What is psychological incapacity?

Article 36 states that “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 Family Code does not define what “psychological incapacity” is. But the Supreme Court in several decisions has clarified what “psychological incapacity” is. In the case of Santos vs. Court of Appeals, the Supreme Court 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."
What marriages are considered incestuous and thus void?

 Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
What marriages are void by reasons of public policy?

The following marriages are void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other party, killed his own wife or her own husband, or the other person's spouse.
The Family Code prohibits marriage “between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree.” What does “fourth civil degree” mean?

For example, Boy and Girl are first cousins:
Boy’s father is A. Girl’s mother is B. A and B are brother and sister. From Boy to his father A, one civil degree. From A to his parents (Boy’s grandparents), two civil degrees. From the parents down to B, three. From B to Girl, four civil degrees.
Boy and Girl therefore cannot get married since they are related within four civil degrees.

Who are people related by four civil degrees (and are therefore prohibited from getting married)?

First cousins (as in the example I gave above) are related by four civil degrees. An uncle and a niece (or an aunt and a nephew) are also within four civil degrees.

Can persons who find out that their marriage is bigamous simply declare by themselves that the marriage is void?

No, they cannot. They must file a petition asking the court to declare the marriage as void. (Article 40)  

If the husband or wife has been missing for several years and could not be located despite earnest and diligent efforts, can the present spouse get married again?

Article 41 provides that a marriage contracted by any person during subsistence of a previous marriage is void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead.

In case of disappearance where there is danger of death under the circumstances stated in Article 391 of the Civil Code, an absence of only two years is sufficient.  

What step must the present spouse take to get married again?

For the purpose of contracting the subsequent marriage under Article 41, the spouse present must file a summary proceeding for the declaration of presumptive death of the absentee.  

What happens if the spouse declared presumptively dead reappears later on?

The subsequent marriage is automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance must be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person; due notice must be given to the spouses of the subsequent marriage. The fact of reappearance can be disputed in court.  

What are the effects if the subsequent marriage is terminated?

Article 43 provides that the termination of the subsequent marriage produces the following effects:
(1) The children of the subsequent marriage conceived before its termination are legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be, will be dissolved and liquidated, but if either or both spouses contracted marriage in bad faith, their share of the net profits of the community property or conjugal partnership property will be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage will remain valid, except that if the donee contracted the marriage in bad faith, the donations will be revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if the designation is stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the innocent spouse by testate and intestate succession.
What are the reasons for annulling a marriage?

Republic of the Philippines vs. Liberty Albios, G.R. No. 198780, October 16, 2013

Issue:

Is a marriage, entered into for the sole purpose of acquiring American citizenship in exchange for $2,000, void on the ground of lack of consent?

Background facts:

Liberty Albios asked Daniel Lee Fringer to marry her so that she can acquire American citizenship. In return, Albios promised to give Fringer $2,000. After the wedding, they went their separate ways. Fringer returned to the United States and never again communicated with Albios. In turn, Albios did not pay Fringer the $2,000 because he never processed her petition for citizenship.

Regional Trial Court rules that Albios and Fringer’s marriage is void for lack of consent

Albios filed with the Regional Trial Court a petition for declaration of nullity of her marriage with Fringer. She described their marriage as made in jest and, therefore, null and void ab initio (from the start). The RTC ruled that the essential requisite of consent was lacking and that when marriage was entered into for a purpose other than the establishment of a conjugal and family life, the marriage was a farce.

Court of Appeals affirms RTC ruling

The Court of Appeals affirmed the RTC ruling that the essential requisite of consent was lacking. The CA stated that Albios and Fringer clearly did not understand the nature and consequence of getting married and that their case was similar to a marriage in jest. It further explained that Albios and Fringer never intended to enter into the marriage contract and never intended to live as husband and wife or build a family. It concluded that their purpose was primarily for personal gain, that is, for Albios to obtain foreign citizenship, and for Fringer, the consideration of $2,000.

Supreme Court rules that the marriage is valid

Albios and Fringer's marriage is not void ab initio (from the start) and continues to be valid and subsisting.

Consent was not lacking between Albios and Fringer. Their consent was conscious and intelligent as they understood the nature and the beneficial and inconvenient consequences of their marriage. Their consent was freely given as best evidenced by their conscious purpose of acquiring American citizenship through marriage. Such plainly demonstrates that they willingly and deliberately contracted the marriage.

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of life that a couple chooses to lead. Thus, marriages entered into for other purposes, limited or otherwise, such as convenience, companionship, money, status, and title, provided that they comply with all the legal requisites, are equally valid. Love, though the ideal consideration in a marriage contract, is not the only valid cause for marriage. Other considerations, not precluded by law, may validly support a marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with Fringer to be declared void would only further trivialize this inviolable institution. The Court cannot declare such a marriage void in the event the parties fail to qualify for immigration benefits, after they have availed of its benefits, or simply have no further use for it. These unscrupulous individuals cannot be allowed to use the courts as instruments in their fraudulent schemes. Albios already misused a judicial institution to enter into a marriage of convenience; she should not be allowed to again abuse it to get herself out of an inconvenient situation.
Article 45 provides that a marriage may be annulled for any of the following causes existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless after coming to reason, the party freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless the party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, the party afterwards freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and the incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
Article 45, paragraph (3) speaks of fraud that may annul a marriage. What constitutes fraud?

Any of the following circumstances constitutes fraud referred to in Number 3 of Article 44:
(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 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, homosexuality, or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity constitutes fraud that will give grounds for the annulment of marriage.
Who can file for the annulment of a marriage and within what periods?
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before the party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other spouse's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage.
What is the duty of the Court in cases of annulment or declaration of nullity of marriages?

Article 48 provides that in all cases of annulment or declaration of absolute nullity of marriage, the Court must order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.  

During the course of the trial for the annulment or declaration of nullity of marriages, how can the rights of the spouses and their children as to support, visitation rights, etc. be ensured?

Article 49 provides that during the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court must provide for the support of the spouses and the custody and support of their common children. The Court must give paramount consideration to the moral and material welfare of the children and their choice of the parent with whom they wish to remain under Title IX. It must also provide for appropriate visitation rights of the other parent.

What are the things to be decided upon by the Court in cases of annulment or declaration of nullity?

Article 50 provides that the final judgment of the Court must provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been decided upon in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership must be notified of the proceedings for liquidation.  

How can the rights of the children be guaranteed?

Article 51 provides that in the partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, must be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

Does this mean that the children will no longer inherit from their parents?

No, the delivery of the presumptive legitimes will not prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents. But the value of the properties already received under the decree of annulment or absolute nullity will be considered as advances on their legitime.  

What are required to be done with the judgment, partition, etc.?

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 must be recorded in the appropriate civil registry and registries of property; otherwise, it will not affect third persons.  

When can the former spouses get married again to other persons?

Article 53 provides that either of the former spouses may marry again after complying with the requirements of Article 52; otherwise, the subsequent marriage will be void.  

What is the status of the children in these cases?

Article 54 provides that children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory are legitimate. Children conceived or born of the subsequent marriage under Article 53 are also legitimate.

Related posts:

[1] If husband and wife have not seen each other for more than seven years, does it mean their marriage is already void?

[2] If a person gets married while his petition for declaration of nullity of his first marriage is ongoing, can he be charged with bigamy?

[3] Quickie marriages under Article 34 of the Family Code: Is the marriage void if the affidavit of marital cohabitation is false?

[4] Legal lessons from the Kris Aquino - James Yap breakup: legal separation, annulment, declaration of nullity, essential and formal requisites of marriage

[5] Irreconcilable differences not a ground for declaring a marriage null and void

[6] When a man is married to or living in with several women successively or simultaneously, who has the right to inherit from him?

[7] Family Code of the Philippines: Primer on marriage

97 comments :

Anonymous said...

Dear Atty,

My marriage to my husband is void from the very beginning since this is his 2nd marriage already. I have the necessary authenticated documents from NSO to prove this. My problem is the money to get a lawyer so I decided to seek for a public lawyer. But I know I still have to pay some money for this. Atty., how much will it cost me so I can prepare? Please help me.. Thank you...

Atty. Galacio said...
This comment has been removed by a blog administrator.
Anonymous said...

pls help me,my kids are 7 and 6 years of age,but my former husband wont allow me to be with them?what rights do i have?pls reply soon...thanks

Atty. Gerry T. Galacio said...

Under Article 213 of the Family Code, children below seven years of age cannot be separated from the mother. However, in custody disputes, the courts will determine the fitness of one parent over another, on the basis of the paramount interest and welfare of the children.

Anonymous said...

good day attorney;
is the marriage considered void if we are already separated for more than 8 yrs already???
and that there is no support and communication ever since??? do i still need to undergo the annulment process or is it already automatic?? pls help me.. thanks....

Atty. Gerry T. Galacio said...

Your marriage is NOT considered void even if you and your spouse have been separated for more than eight years already. Please let me explain.

The Family Code, specifically Articles 41 to 44, deals with the declaration of presumptive death for purposes of remarriage. There are a lot of misconceptions about this part of the FC. Clarifications are listed below:

[a] Article 40 provides that persons cannot take the law into their own hands and simply declare that their marriage is void or annulled because of the absence or lack of communication between the spouses. A person wanting to remarry must first obtain a court decision declaring the previous marriage null and void before getting married again.

[b] The FC only provides for a period of 2 years (extraordinary absence like in war, shipwreck, storm, etc) or 4 years (ordinary absence) for a person to be able to go to court and file a petition for declaration of presumptive death of the missing spouse. The seven years separation that people usually refer to was previously provided for under the New Civil Code. We now follow the FC.

[c] The court will however require the petitioner (you for example) to present proof that he or she exerted earnest and diligent efforts to locate the whereabouts of the missing spouse. These efforts include asking the police or NBI for help in locating the missing spouse, using the media like newspapers or radio, etc. The court will deny the petition if the petitioner cannot present such evidence of earnest and diligent efforts to locate the missing spouse.

[d] If the court declares the missing spouse as presumptively dead, then the petitioner will be able to remarry.

[e] But the problem is if any person (friend, relative, barangay official, etc) discovers that the missing spouse is really alive, then that person can file an affidavit of reappearance with the Local Civil Registrar. If the petitioner had already gotten married, then that subsequent marriage is automatically terminated. This is provided for by Article 42 of the FC.

5. Instead of filing a petition for declaration of presumptive death for purposes of remarriage, you can file for declaration of nullity based on Article 36 (psychological incapacity) of the FC.

The term annulment refers to voidable marriages while declaration of nullity refers to marriages that are null and void. The term annulment is used in a generic sense by Filipinos to refer to both kinds of marriages. The procedure for annulling a marriage or declaring a marriage null and void is found in the Legal Procedures section of my Family Matters website.

The grounds that could make a marriage null and void are found in Articles 33 to 54 of the Family Code. Please read the following articles:

Annulment and declaration of nullity
http://famli.blogspot.com/2005/12/annulment-and-declaration-of-nullity.html

Psychological incapacity
http://famli.blogspot.com/2005/12/psychological-incapacity.html

Effects of Art. 36
http://famli.blogspot.com/2005/12/effects-of-art-36.html

Legal separation and declaration of nullity
http://famli.blogspot.com/2005/12/legal-separation-and-declaration-of.html

The Amy Perez case: Psychological incapacity in annulment of marriages
http://famli.blogspot.com/2006/07/amy-perez-case-psychological_30.html

sagittarius said...

Hi Atty.submitted for decision na po ang annulment ko po na which I filed for it since 2003.But then it only been submitted for decision last year,July 2008.I expect it to have the decision after 90 days but wala parin pong decision anopo ba ang dapat gawin pina follow up po naman ng counsel ko.Eight months na po ngayon.May maisa suggest po ba kayo?
Thanks po Atty.

Atty. Gerry T. Galacio said...

When the case is submitted for decision, a judge has a period of ninety (90) days within which to render his or her decision. This 90-day period however is directory and not mandatory, meaning the judge can issue the decision even after this period. But the judge can be subject of an administrative case for his failure to observe this period.

An extreme solution that lawyers often resort to is filing with the court a Motion To Resolve with copy furnished the Office of the Court Administrator of the Supreme Court. The OCA supervises judges all over the country and judges often are afraid of being reported to the OCA. But this could backfire on you because this technique can antagonize the judge handling your case.

You said that your lawyer is following up the case. You just have to trust your lawyer and wait for the court to issue its decision.

Anonymous said...

Hi attorney,
I'm filipino with dual citizenship, Filipino and Canadian. I live in Canada and my wife is in Manila. We got a civil marriage in Dec/06. However, we did not get marriage license as I was only there for 2 weeks. We got married with the information what we have lived for 5 years or more, which is not true. I believe this marriage is null and void.

My question again is how do I make this marriage valid or legal?

Thanks in advance for the help.

Atty. Gerry T. Galacio said...

Please correct me if I am wrong. You got married using an affidavit stating that you and your wife have been living in as a couple for five successive years without any legal impediment. You probably got married in the city hall of places like Manila or Quezon City.

This affidavit is provided for under Article 34 of the Family Code and is called ratification of marital cohabitation. This situation is one of the exceptions in the marriage license requirement. What if it is not true that you have been living in as husband and wife for five successive years without legal impediment?

Dean Rufus Rodriguez in his book “The Family Code of the Philippines Annotated” states that:

If the affidavit is falsified because in truth they have not lived together as husband and wife for at least five years, it is as if there is no marriage license. Under the first paragraph of Art. 4 of this Code, absence of a formal requisite (marriage license) shall render the marriage void ab initio.

It is a complicated process: (1) You have to file for declaration of nullity of your marriage under Article 40 of the Family Code; (2) Then, after the court declares your marriage null and void, then you can now get married legally.

However, you and your wife can possibly be charged criminally with perjury (lying under oath) for having executed that affidavit.

Anonymous said...

Thanks attorney for the prompt reply. Can't we just get married again, doing the proper procedure, in church or civil again?

Atty. Gerry T. Galacio said...

Simply getting married again, (1) you will have to apply for a marriage license where you will have to state details of previous marriage; (2) once the solemnizing officer submits the marriage certificate to the NSO, you and your wife will have TWO certificates on file with the NSO.

As of now, if no one questions your marriage’s validity because of the false entries in the affidavit of marital cohabitation, your marriage stands as valid. Complications and questions could arise later on however as to property relations between you and your wife, inheritance of children (whether as legitimate or illegitimate), etc.

Please consult other lawyers who might be able to give you other perspectives or options for your situation.

Anonymous said...

attorney, just a follow up question from the last inquiry. If we will get married again civilly again. Would there be any legal complication if we will have 2 documents/marriage certificates from NSO? Will the 2nd marriage be considered legal or not? Canadian embassy wants us to get a marriage license, and we were thinking to just get married again without going through the process of annulment. Do you think that would work?

Atty. Gerry T. Galacio said...

One of the entries in an application for a marriage license is that of the status of any previous marriage. You could be committing perjury in this area since you are already married (although with an irregularity). You could possibly be compounding your present problems.

As I said, you should consult other lawyers who might be able to give you other perspectives and option regarding your situation.

Anonymous said...

Dr Attorney,

Thank you for your resource. My girlfriend had a final hearing and the Judge ordered that the marriage is null. They said that the final decree papers will not be released for 90 days due to a supreme court oversight. Is this consistent with a new law or existing part of the code? Thank you so much.

Atty. Gerry T. Galacio said...

When the parties to a case have fully presented their evidences and witnesses, the case is then submitted for decision. Under the rules, a judge is given a period of ninety days within which to come up with his decision. The said period however is not mandatory but merely directory, meaning, the release of the decision could go beyond ninety days. Unreasonable delays in the release of the decision beyond ninety days however could lead to an administrative case being filed against the judge.

Anonymous said...

Dear Atty,

i am "technically married" for 8 years now. But for that 8 years we didnt have any communication.

Our marriage was contracted thru that quickie one (we went to Manila City Hall without applying properly for Marraige License and on that day we got married), I have checked from NSO and requested a copy of the contract and they furnished me one, which ever since I had a hand on that contract I presumed that I was married until lately I found out that the marriage license which was used as reference does not exist on the file of the Local Civil Registrar where in it was taken, I even requested a certification and they issued me one with the same content. Will this be then a strong ground or grounds at all to make my marriage NULL AND VOID? PLease advise. Thanks and more power.

Anonymous said...

I came to realize thta through this site I know u cna help me a lot...Atty..I just would like to ask that I was married last year to a foreigner and when we apply for marriage..I send the copy of my Cenomar to prove that I am not really narried to anyone.For requesting the cenomar ang nakalagay sa cenomar ko i am not appear married to anyone yet the purpose of my certifcation is for employment abroad yun na lang ang ipinasa ko sa Local civil registrar and they accepted that..la bang provblema kong anong purpose ung kunin mong cenomar as long as hindi ka talaga married at my karapatan kang magpakasal..please help?tnx

Atty. Gerry T. Galacio said...

First of all, a CENOMAR is not an essential or a formal requisite of marriage under the Family Code. You can be issued a marriage license even if you do not present a CENOMAR. Secondly, what’s important is that the NSO certified that there is no existing marriage certificate in your name; the reason for the application (like employment) is not really important. It will not affect your application for a marriage license.

Of course, a properly applied for and regularly issued CENOMAR may be important to your foreigner-spouse.

Anonymous said...

Hi Attorney,

You can call me jane, just want to seek your assistance.
My live-in partner was married. He separated from his wife
3 years ago. We work for the same company but we have a different
agency. He was still living with his wife when we met, sometime in
june 2006. He always come near me and courted me. I resisted because
he was already married. He and her wife separated in dec on the same
year. He courted me again, i gave him chance and we became bf/gf
on feb 2007. We lived on a same house on aug 2007. His wife learned
of our relationship and confronted me. It seems its okay with her and ayaw na rin daw nya talaga
January 2008, we found out that his wife was having an affair with the uncle of their ninong sa kasal
since they was still together as( hindi pa nya ako namimeet) what has been told by us by my stepdaughter.
Lagi kaming tinatakot ng asawa nya na idedemanda kami. Ngayon, may 1 year
old daughter na kami ng kalive-in ko...Totoo po bang ppwede nya pa kaming
idemanda even na mayroon na rin syang ibang karelasyon, na wala naman daw
kaming ebidensya, pero mismong sa mga anak nila ng kalivein ko nanggaling
na may kinakasama ang mother nila, dun nakatira ang mother nila sa karelasyon
nya na married din...3 years na ang lumipas nung nalaman ng asawa ng kalivein ko
ang tungkol sa amin, may chance po ba na talagang makulong kami? ako po
ay may anak din sa una pero ako po ay hindi kasal. Ppwede pa po bang humingi ng
support ang asawa ng kalive-in ko kahit na mayroon na syang kinakasama. Ako po
halos ang gumagastos sa lahat. Attorney, please enlighten me.

Anonymous said...

Hello Atty,
I find your site very informative and helpful. I wanted to ask about my own situation wherein I was married to a foreigner some 30 years ago when I was only 14. He left me two years after we were married to go back to his country w/c was war-stricken that time. He informed me that he may not be able to come back bec. of his country's situation and that he will join the army. I never heard anything from him since then, and our son was left without any support from him. Even his friends who stayed behind do not have any news about him. Presently, I am looking to remarry. How do I go about it attorney? Can a file a petition to remarry due to presumptive death or should I seek for an annulment. May I just reiterate that my prior marriage was with a foreign national. How long does the court proceedings take?

Thank you so much and more power.

sagittarius said...

Dear Atty.,

My marriage has been nulled and void ab initio since april,2008.This what my problem is my only daughter who is in 3rd year of college has been asking me to help her for the tuitions fee.I do the payment when I was working in other country but since I am now here and no longer working she still putting the pressure on me while her father works in other country too he still in Iran working there she ask him to call me to talk to me ask me to give her money for the school fee she is actually live with him every since .In my anullment papers said that it was her father supposed to help her out in everything I told her before when she needs help she can always call me.Now that I told her I couldn't help as I am no longer working she make it sounds that I am so bad.I did support her even though she lives with her father family.Since I came back she only visited me six times shes turning nineteen this december what else can I do to make her understand to make her understand our situation now, she didn't grow up with me as she live with her father.I would like to ask what legal action should I take just to make them stop putting pressure in me.I love my daughter but that doesn't mean they can use her to make me feel guilty.

Atty. Gerry T. Galacio said...

You got married in 1978 when the prevailing law was the New Civil Code of the Philippines and not the Family Code. The FC became effective in August 1988. Under the NCC, a 14 year old woman can get legally married.

Under the circumstances, it is better to file for a petition for declaration of presumptive death for purposes of remarriage. Please read my Legal Updates post entitled “If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?” or download my free PDF newsletter with the same title from www.familymatters.org.ph . These articles discuss the procedure and requirements.

As to the length of time, it will depend on the case load of the Family Court handling the case. Metro Manila Family Courts are overloaded with cases and you can expect to spend a year or two on this petition. In the provinces, Family Courts have a relatively lighter case load. First step is for you to retain the services of a lawyer.

Anonymous said...

Dear Atty.,

Thank you very much for you prompt reply. I wanted to ask further about the cost of pursuing a court a petition for declaration of presumptive death for purpose of remmariage. And also, I have read in your legal updates post "if the husband and wife have not seen for more than seven years..." that I need to present proof that I exerted efforts in finding him. Atty, I dont have such proof because he left with my full knowledge that he is not coming back anymore. Do you think the court would accept this? I need help. Thank you again and more power.

Atty. Gerry T. Galacio said...

Jane,

1. If and when the legal wife files a case against her husband (your live-in partner) for concubinage for example, you and your live-in partner can file what is called a countercharge. The charge will be for adultery. As you said however, “walang ebidensya” except for the potential testimony of the children. But a lot of lawyers will discourage any father or mother from putting children through the ordeal and trauma of taking the witness stand against one parent.

2. As to the issue of support, the husband may have a valid ground for refusing to give any. However, if the wife resorts to RA 9262, the husband (your live-in partner) may be forced to give support. Under our legal system, we follow the principle of equity which means that ”he who comes to court must come with clean hands.” If your live-in partner can prove in court that the wife is now living in with someone, the court may possibly not grant a Protection Order for support.

Atty. Gerry T. Galacio said...

sagittarius,

A legal action will only make matters worse between you on one hand and your daughter and ex-husband on the other.

You should very patiently explain again and again to your daughter that under the decree handed out by the court, her financial support is supposed to come from her father and not you. When you do finally get a job again, that’s the time you can help out in her educational expenses.

If you want people to pray for you for your situation, please follow this link to a prayer room for men and women:

http://womentodaymagazine.com/chat/share.html

Atty. Gerry T. Galacio said...

The cost will depend primarily on the qualifications of the lawyer you will retain. Well-known lawyers will of course charge higher fees than lawyers just beginning their legal careers. You can inquire from the chapter offices of the IBP (Integrated Bar of the Philippines) names of lawyers who render pro bono (meaning “free”) service, or who will not charge too much.

As you already know, the court will require that you present evidence that you exerted earnest and diligent efforts to locate the whereabouts of the missing spouse. Without such evidence, the court will dismiss your petition. In the first place, no lawyer will file such a petition for you if could not provide such proof.

helping a friend said...

dear atty.

a friend of mine married a lady who's a month short of becoming 18. both parties are not in good terms and want to separate. they found out that their marriage in the philippines is void in the first place. since their marriage is recorded in the census for almost 10 years, what are the procedures to officially delete the record in the census? do they have to annul or divorce?

Atty. Gerry T. Galacio said...

1. Under the Family Code, nobody below 18 can get married (even with parental consent). For purposes of remarriage, however, Article 40 of the FC provides that a petition must be filed for the declaration of nullity of the marriage. (“Annulment” refers to a voidable marriage while “declaration of nullity” refers to a void marriage.) Your friend and his wife cannot take the law into their own hands and simply declare by themselves that their marriage is void. If they get married to other parties without resorting first to Article 40, then they can be charged with bigamy.

2. Please ask your friend to read my salt and Light blog post entitled “Priceless counsel from a bargain sale book: “How to save your marriage alone” The link is http://-salt-and-light-.blogspot.com/2006/08/priceless-counsel-from-bargain-sale.html

Anonymous said...

Hi Atty.!your site is very helpful.Thank God for people like you. I do have a question,it's for my friend,he was married for almost 12years now,he's been a good husband to 4kids and her wife,but for 12 years they are on an on and off fight..tanong ko lang kasi last month yung friend ko was already fed up kasi yung wife niya continuously lying to him kahit na nagkaroon na ng kasulatan na she will not lie,physically or emotionally abuse her kids,etc. etc.(and btw yung kasulatan na yun came from her wife under her free will),she's been lying about her whereabouts,yung mga lakad niya na she says its impt pero hindi naman na to the pt yung mga kids napapabayaan na and ang pagkakaalam ko nag aaway sila kasi di magkasundo sa ugali eversince..also yung wife kept telling him for years na ayaw na niya,iiwan na siya etc etc..and now,he wants to file an annulment,tanong ko lang po would it be possible to file an irreconcilable differences or kung ano pong pwede niyang ifile na case for annulment?please help.thankyou so much.hope to hear from you.

Aia

Atty. Gerry T. Galacio said...

Aia,

Please read the FAQ of www.familymatters.org.ph for you to know the differences among legal separation, annulment of voidable marriage and declaration of nullity of a void marriage. I also discussed there what “psychological incapacity” is all about.

“Irreconcilable differences” is NOT a ground for having a marriage annulled or declared null and void.

helping a friend said...

thank you very much for your help. i would definitely rely this information to him. have a wonderful day. =D

Anonymous said...

good day,

i am unhappily married for 10 years now and it started 1998, i was mentally depressed going into marriage after the child was born, that i only married her FOR THE SAKE of the child.
is it possible for me to file an annulment that all through the years passed by we both know we are extremely living for the child alone and that theres no harmony and love inside our marriage, and that we have an awful time adjusting with one another.
please help, many thanks

ben

Atty. Gerry T. Galacio said...

Ben,

Please read the FAQ section of www.familymatters.org.ph for you to know what grounds are allowed for annulment (voidable marriage), declaration of nullity (void marriage), and what “psychological incapacity under Article 36 of the Family Code is all about.

From what you stated however, the lack of love and unhappiness are not grounds for declaring a marriage null and void.

Please read my Salt and Light blog articles on marriage.

Anonymous said...

dear atty.,

you can call me JUAN pero po,bago po ang lahat gusto ko po muna kayo batiin ng magandang araw..gusto ko po sanang humingi ng tulong tungkol sa aking problema sa aking kasal na gusto kong malaman kung may bisa ito...ito po ang aking kwento, nung 1994 po 18 years old po ako,at ang kinakasama ko ay 19 years old nagka anak po kami ng lalaki ngayun po sa kagustuhan ko pong mabigyan ng pangalan ang aking anak nagpagawa po ako ng marriage certificate sa manila city hall tapos po pinirmahan namin mag asawa na walang parents consent para lang po maipakita ko sa simbahan at maisunod sa apelyido ko ang bata...tapos po pag karaan po ng dalawang taon nag hiwalay po kami makalipas po ulit ng 3 taon nag karoon po ulit ako ng anak tapos ganun po ulit ang ginawa namin para maisunod lang ang pangalan ng batas a apelyido ko di bale po 24 years old po kami ng kinakasama ko at year 2000 po ako nag kaanak ulit at naikasal ng hindi ko alam kasi po ang buong akala ko hindi ma i rerehistro yun kasi po ginamit lang po namin sya para po sa apelyido ng bata kung baga parang formality lang po ngayon po nag verify po ako sa NSO 2 po ang kasal ko isang 18 years old ako at 24 years old ako atty. itatanong ko lang po sana kung may bisa po ba ang nauna kong kasal kahit na under age ako at walang parents consent ng mga magulang naming dalawa??? sana po matulungan nyo ako ...maraming salamat po.


gumagalang,

JUAN

Atty. Gerry T. Galacio said...

JUAN,

Article 45 of the Family Code applies to your situation. The said article states:

A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;


You got married when you and the woman were 18 and 19 respectively without parental consent. You had what is called VOIDABLE marriage. When you or the woman reached 21, you (or the woman) should have filed a petition to have your marriage declared void. The Family Code provides a period of five years from reaching the age of 21 for the filing of this kind of petition.

But since you freely cohabited (lived together) as husband and wife and did not file the petition I mentioned above, the defect or lack of parental consent has been cured (in legal terms). Thus your first marriage is now considered valid.

Anonymous said...

dear atty,

Maraming salamat po atty., sa inyong pagsagot sa aking suliranin ,, itatanong ko lang po sana kung ano ang dapat kong gawin para po mawalang bisa ang una at pangalawa kong kasal at ano po ang mga hakbang na dapat kong gawin? kasi po hindi ko po maipag laban ang karapatan ko sa aking anak sa pangalawa kong asawa kahit na sya ay mayroon na ring asawa at kasal na at may mga anak na, at naninirahan sila sa korea di bale 3 taon na po sya dun at ever since po hindi nya sinama ang anak kong babae sa kanya at iniwan lang sa kanyang ina at sa tuwing kukunin ko ang bata lagi nilang sinasabi na wala akong karapatan gusto ko lang po sanang itanong kung papaano ko po ipaglaban ang aking karapatan at makuha ang aking 8 taon na anak na babae ,upang sa akin na tumira kasi po gustong gusto na nya tumira sa akin kaya nga lang po lagi lang kami ginugulo ng ng kanyang ina at mga kamag anak ng kanyang ina sa tuwing madidisisyon syang tumira sa akin kaya po ang nangyayari po pati pag aaral ng anak ko naapektuhan na sa dahilang litong lito na sya kung saan ba dapat sya tumira at sino ba dapat ang makama nya,, ano po ba ang dapat kong gawin atty. upang maipag laban ko ng legal ang aking karapatan at papaano ko po sila mapapahinto sa ginagawa nilang panggugulo sa amin ng anak ko??pwede ko po ba sila kasuhan?at ano po ang pwede kong ikaso sa kanila?? sana po matulungan nyo ulit ako. maraming maraming salamat po


Ang Masugid Nyong Tagahanga;

JUAN

Atty. Gerry T. Galacio said...

JUAN,

As I explained in my first reply to you, your first marriage is valid despite the lack of parental consent. Your second marriage is therefore bigamous and void. With regards your second marriage, a petition for declaration of nullity should be filed. But not by you, since you will be admitting to the court that you committed bigamy. It should therefore be your second wife who should file the petition.

Because of the bigamous nature of your second marriage, your children from that marriage are illegitimate. You have what is known as “visitation rights” which cannot be denied to you. Please read my post “Visitation rights over illegitimate children” (look for the link in the sidebar).

Anonymous said...

hello Atty.

im glad that i found your website.. i just wanted to know po, kung pwede ba ako magpakasal sa US? but im still married here in the phlilppines 5 years na po..at american din po. but we are in the situation na nagsasama kami dahil sa mga bata.. ano po ang pwede kung gawin? matetrace po ba na ako ya kasal dito sa pinas?

maraming salamat po.

Atty. Gerry T. Galacio said...

Before getting married again (here in the Philippines or abroad), you should first have your present marriage annulled or declared null and void.

Anonymous said...

hi atty. gerry! una po sa lahat salamat po sa mga impormasyong inyong ibinabahagi sa lahat ng mga mambabasa. maliban sa nakakatulong kau ay nakakapagbigay linaw pa kau sa mga problema ng iba.

gusto ko po sana itanong yung naging sitwasyon ng aking kapatid. kinasal po kasi sya nung taong 2005 pero yung napangasawa nya ay kasal pa sa iba ngunit hiwalay na sila ng ilang taon. magpapa-annul sana yung lalaki kaso kinulang sa pera pero dahil kelangan nila ng papeles sa abroad ay napilitan sila magpakasal kahit di pa annul. Nung taong 2007 ay nag-file na sya ng annulment at nitong october nga ay lumabas na ang decision na void ang kasal sa una.

ang tanong ko po ay ngayong void na ang unang kasal e automatic po ba na magiging legal na yung kasal nila ng kapatid ko kahit na lumabas ang annulment ng 2008 pero nagpakasal sila ng 2005?

asahan ko po ang inyong payo. maraming salamat po!

Anonymous said...

Hi Atty. your website is very informative, thanks. Tanong ko lang po sana iyong about sa situation ng mama ko, medyo complicated po kasi.

Arranged marriage po ang naging sitwasyon ng kasal ng mama ko sa tatay ko noong 1979 at the age of 16. Nagsama lang sila ng 5 years. Wala silang communication hanggang ngaun.

After 3 years of separation, nakilala ng mama ko ang stepfather ko at nagsama sila ng almost 20 years. Sa loob ng 20 years, they got 3 kids na dala ang apelyido ng stepfather ko even they are not married but nagawa nilang magpakasal in the later part of their relationship. Naghiwalay sila kasi nagkaroon ng ibang babae ang stepfather ko to the point na nagmakaawa pa ang mama ko na bumalik siya sa amin. Wala rin siyang suporta na ibinigay sa mga kapatid ko (half-brother).

Since my mom is married to my father, that means her marriage to my stepfather is void? Kung nakaregister po ang marriage niya sa stepfather ko sa NSO, pano po ba mawawala ang record niya doon?

Puwede bang kasuhan ng stepfather ko ang mama ko ng bigamy (since laging nananakot ang stepfather ko na kakasuhan niya ang mama ko ng bigamy)? Ano po ba ang puwedeng ikaso naman sa stepfather ko? She is a battered wife, naging witness ako sa pagsasama nila. In fact meron pa siyang record sa police station kung saan may picture ang mama ko na may malaking pasa sa mukha kasi sinampal siya ng stepfather ko. Pinatawag ang stepfather ko para pag-usapan ang nangyaring iyon pero hindi siya sumipot.

Is there a way po ba na ma-annul ang first marriage niya since naghiwalay sila 24 years ago without communication? If ever po na ma-annul man ang marriage niya sa tatay ko, magiging valid po ba automatically ang marriage niya sa stepfather ko? These things confuse me.

I wish you could help me. Thanks a lot.

Rose

Atty. Gerry T. Galacio said...

Rose,

Despite the separation of more than 20 years, your mother’s first marriage is still valid. Please read my post “If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?” (look for the link in the sidebar).

Your mother’s second marriage is bigamous and void. There is no way that her marriage certificate can be made to disappear form the records of the NSO. Even if the first marriage is annulled, that will not make the second marriage valid.

Your mother can thus be sued for bigamy (unless she can prove that the second husband knew about her first marriage).

Your mother can sue your stepfather for violation of RA 9262 Anti-Violence Against Women and their Children Act of 2004. Please read my RA 9262 posts in this blog (look for the links in the sidebar).

Since you are affected psychologically by the abuse your stepfather inflicts on your mother, you yourself can avail of RA 9262 and file the case against your stepfather.

Anonymous said...

Atty. thanks po talga, naliwanagan ang isip ko. Kaya lang may tanong pa po sana ako kung ok lang. Ang apelyido po kasi na gamit ng mama ko sa mga ID niya at sa ibang mga documents gaya ng passport ay apelyido ng stepfather ko. Is there an official documents po ba na available sa pilipinas na puwedeng mai-present namin na nagsasabing void ang kasal niya sa stepfather ko para mapalitan ang apelyidong gamit niya?

Rose

Atty. Gerry T. Galacio said...

Rose,

The Local Civil Registrar and the National Statistics Office will not simply change the entry for your mother’s surname on the basis of an affidavit. A court order is necessary.

Besides, under Article 40 of the Family Code, people are not allowed to declare by themselves that their marriage is void. The proper petition must be filed in court to have the marriage declared void.

kc_21 said...

Hi Atty:
Merry Christmas to you and your family! I wish that you will have a blessed New Year as you have been so helpful to others thru your blogs.

I have posted this same query in your other page, but as I explored more of your blogs, I see that this page is more up to date. Please bear with me if I am posting my query twice. I am just hoping that you get to read my questions and help me.

Here is my current situation. My husband and I got married early this year. After we got married, I immediately went back to the US. We got married by a lady reverend, who works for one of the Councilors in QC., and in good faith thought that every thing is being handled properly and within the system. However, when my husband got a copy of our marriage contract, the person who signed our marriage contract is different from the person who married us. It turned out the lady reverend's license expired, so the lawyer in the Councilor's office signed in the documents. Also, they put that we didn't need a marriage license because we were living together. We couldn't possibly live together because I am living in the US. The US Embassy saw all these errors during my husband's interview and was denied. We are planning to appeal his case at the US Embassy because we have all the proof of our 6 years long distance relationship. However, our marriage contract will play a big part in the appeal. Here are my questions: 1. Is our marriage voidable since we got married without a marriage license, and the person who married us turned out to have an expired license?
2. Is our marriage still valid if my husband and I dont contest it?
3. Who can appeal for our marriage be voided? My husband and I dont want to contest our marriage.
4. How can we make our situation right without having to go through an annulment and remarrying?

I read one of the blogs and it seems like we have the same situation. I believe the only difference is that my husband and I didnt sign any affidavit stating that we are living in together. To why the lady reverend decided to put that, I don't know. My husband went back to the lady reverend who married us, but she offers no help. The lawyer who signed said that he can make an affidavit. Will an affidavit from the lady reverend and lawyer attesting to their mistake fix our misery and dilemma?

As you can see, I am in great need of your advice. Coming across your website is a true blessing for me, and the start of my prayers being answered. I hope you can at least give us an advice to which direction we can take to start fixing this mess we got into. My husband and I just want to be married and be together. Please help. Thank you very much.

Atty. Gerry T. Galacio said...

kc_21,

1. I received in my e-mail your first comment/question. Blogger automatically e-mails me every time someone posts a comment. It takes me three days to a week in answering comments or inquiries.

2. Quezon City has acquired a reputation as a place where anyone can get a quickie marriage. In all probability, you and your husband simply went to the City Hall where the solemnizing officer asked you to sign several documents. Unknowingly, you and your husband probably signed the Affidavit of Marital Cohabitation under Article 34 of the Family Code. Under this article, the affidavit is supposed to substitute for the marriage license. The racket for these solemnizing officers is to make use of Article 34 in order to be able to perform quickie marriages. Sadly, Article 34 has been misused and exploited by persons who solemnize quickie marriages.

3. Article 34 requires a live-in relationship for five consecutive years without legal impediment, and not simply a long-distance relationship.

The falsity of the facts stated in the Affidavit of Marital Cohabitation, in the view of Dean Rufus Rodriguez, makes the marriage void. The lack of authority of the lady reverend (due to the expired license) is usually a ground for declaring a marriage void. The exception is provided under Article 35 FC (when one or both parties believe in good faith that the solemnizing officer had the proper authority).

Please also take note that under Article 40, a petition must be filed in court to have the marriage declared void.

If no one questions the validity of your marriage, then as far as the records show, you and your husband are legally married.

However, as you have already experienced and as other counselees have told me, the US embassy (and that of Canada, Belgium, and UK, among others) is very strict with marriages performed under Article 34. For immigration purposes therefore, you cannot use your marriage certificate or contract. It is practically useless for you to appeal with the US embassy.

There are companies that specialize in difficult immigration issues. They might be able to help you in your petition for immigration by using grounds other than marriage.

Anonymous said...

Hi Atty,
I am a permanent residence here in uk and planning to marry a woman who has a questionable marraige status in the philippines. Her husband has previous marraige (civil wedding) which appeared in NSO. In order to justify a second wedding, the guy converted to muslim persuaded her to get married in a muslim rites which is hastily done not following muslim rules. Now it appears that her husband has two marraige registration in NSO. My question is: Is her marraige to the guy legally binding? Can she declare her marraige to the guy as void?

Atty. Gerry T. Galacio said...

Article 40 of the Family Code provides that for purposes of remarriage, a petition must be filed in court. A person cannot take the law into his or her own hands. The court must declare the marriage null and void before a subsequent marriage can take place.

Filipino Muslims are not covered by the Family Code but by the Code of Muslim Personal Laws. For questions regarding matters concerning these laws, please communicate with the Office of the Jurisconsult (created under this Code). Go to the Philippine government portal www.gov.ph and try to find a link there to that office.

Wena said...

Dear Atty,

Please help me,my husband and i separated ways since 2000,since then I wasnt able to see him,I went back to our former house but they have moved to another place already.At present,my boyfriend and I are already living together and we wanted to get marry.I want to file for an annulment but I dont know where to find my ex-husband..Please give me an advice on what to do...

Many thanks,
Wena

Atty. Gerry T. Galacio said...

Wena,

In your petition for declaration of nullity, you have to indicate the last known address of your husband. If the summons (order from the court) cannot be served on his last known address, then your lawyer will request the court to have the summons published in a newspaper of general circulation. Once the summons has been published in the newspaper, then the court can proceed with the petition.

Anonymous said...

Good day! A friend of mine got married in 1996. He is 22 years old at that time and the girl is 23 years old. They got married civilly at Manila. I got a chance to see their marriage contract, and I saw that the portion for Persons who gave consent or advice is blank. Is their marriage valid?

francis said...

Dear Atty,

Good day po!Gusto ko po sanang iconsult sa inyo itong problem namin ngayon ng misis ko about our marriage put by our solemnizing officer under Article 34 without explaining the real meaning of this to us during our application for our marriage and even during the wedding day. Nalaman lang po namin ang ibig sabihin ng article 34 nung nagpada ng notice ang canadian embassy sa kin to provide a signed affidavit with explanation kung bakit nakalagay under Article 34 ang kasal namin. Nasa Canada na po kasi ngayon ang misis ko and umuwi lang po sya last june 2008 para po magpakasal kami at maipetisyon nya ako para dun na kami magsama.Almost 5 yrs na po ang relasyon namin bago po kami nagpakasal.naka 2 yrs na po kami ditong magkarelasyon bago po sya umalis papuntang Canada.Pareho na po kaming 25 yrs old nung nagpakasal kami nung June 23, 2008.Ako po ang pumunta nuon sa Manila City Hall para po mag-ayos ng kasal namin at kasama ko po ang father in law ko.Nagpunta po kami sa male reveren duon kasi po dun din nagpakasal ang kapatid ng misis ko.Ngayon po ang problema namin,.dpat po ba naming ipasa yung affidavit stating na ngayon lang namin nalaman yung meaning ng Article 34 or kausapin nlng namin yung nagksal sa min na sabihin nyang ing consider nlng nya yung tagal ng relasyon namin, closeness namin ng misis ko sa bawat family namin,and keeping our relationship kahit na long distance..hindi po kasi kami nag live-in ng misis ko,and may pinasa po kaming history ng relasyon namin ng misis ko sa canadian embassy.
buntis po kasi ang misis ko ngayon at manganganak na po sa april..gusto po sana namin na makapunta ko na dun para hindi po sya masyadong mahirapan..nag-iisa lang po kasi sya dun ngayon and wala pong syang relative dun.nakarating lang po sya dun kasi po nag-apply sya as caregiver..
we are in need of legal advice atty.
meron pong due date na binigay ang embassy sa kin to reply and as of today meron nlng po akong 3 weeks to reply..

Many thanks,
Francis

Atty. Gerry T. Galacio said...

The parties were 22 and 23 at the time of the marriage, meaning only parental advice (not parental consent) was needed. Article 15 of the Family Code states:

Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.

[1] The lack of parental advice merely suspends the issuance of the marriage license for three months.

[2] Even if there was no sworn statement filed as required by Article 15, this statement is not an essential or formal requisite of marriage under Articles 2 and 3 of the FC. The marriage is therefore valid.

Atty. Gerry T. Galacio said...

Francis,

Article 34 of the Family Code deals with what is called “ratification of marital cohabitation.” If the man and woman have been living in as husband and wife continuously for at least five years without any legal impediment, then a marriage license is not necessary. An affidavit of marital cohabitation can be used instead of a license.

"No legal impediment" means that you are not married to another person during your live-in relationship, or you did not start such live-in relationship when you were below 18 years of age.

The problem as you now know is that embassies like the US, UK and Canada are very strict with marriages celebrated under Article 34. If you cannot present proof (testimonies of witnesses, receipts of apartment rentals, for example) that indeed you and your wife cohabited for at least five years without legal impediment, then your petition will be denied. You should consult lawyers, persons or companies specializing in immigration to Canada to help you out.

francis said...

Hi Atty,

Thank you so much for your advice..Now, we're enlightened with our case.Do you have any idea for the cost of anullment and how long will it takes?kailangan pa rin po ba namin maghintay ng matagal na desisyon kahit na kami pa rin pong dalawa ang magpapakasal?I mean, hindi nmn po kasi kami magpapa anull dahil maghihiwalay na kami.Kundi itatama lang nmn po namin yung kasal namin..Meron din po ba kayong mairerefer sa min na immigration lawyer, kc po taga subic po ako at wala po akong mahanap na immigration lawyer d2..

Atty. Gerry T. Galacio said...

A petition for annulment or declaration of nullity may be difficult as to what ground you can use.

If you look at newspapers like Bulletin or Inquirer, you will find advertisements of persons and company specializing in immigration to Canada.

Anonymous said...

Attorney:
Can my friend will be remarried after she annulled to his former husband knowing his husband have a wife too...what she will do??can you give your contact number of your mobile for coaching instead..I need your help....

Anonymous said...

Atty:
may kaibigan din akong nakipaghiwalay nasa kanyang dating asawa na may parehong kinakasama nagayon balak na ng babae na magfile ng annullment sa korte anu gagawin nya willing naman pong makipag annul yung lalake na lumagay sa tahimik e....salamat

Atty. Gerry T. Galacio said...

Either your friend or her husband should file a petition for declaration of nullity of their marriage. After the court has issued the decree of nullity and it has become final and executory, then that is the only time your friend or the man can remarry. As of now, the man can be charged with bigamy.

Atty. Gerry T. Galacio said...

Your friend should retain the services of a lawyer to file the petition for declaration of nullity of the marriage.

“willing naman pong makipag annul yung lalake na lumagay sa tahimik”

This is called COLLUSION and will be a ground for the dismissal of the petition.

mysterious girl said...

..i had a friend who separated by his wife 2 years ago ksi meron nang knakasama yong wife nya,at tsaka wife nya nman yong nkipaghiwalay at iniwam yong 3 bata nla sa kanya.could it be possible na makukuha nya pa yong mga bata nla despite the fact that she abondond her family?

Atty. Gerry T. Galacio said...

Please read my posts titled “Can a mother be deprived of custody of her child?” and “Custody battles over children: what determines fitness of a parent over another?” (look for the links in the sidebar).

Anonymous said...

hi attorney,
if a person got married and they got their license from cavite and the pastor who initiated the marriage is also from cavite but they both reside in quezon city, is that legal?
plus they never submitted any papers but still they got married. is that a factor to condider tht the mrriage is void?
thank you for giving some time to this inquery.
god bless!!!!

Didi said...

Hello Attorney,
My husband and I are not living together anymore since 2002. We have 2 kids. He’s still working abroad and still doing a lot of extra-marital affairs. During the first year of separation (not legally), he didn’t support the kid’s needs and at times he gave me threat to follow his orders in exchange for support. I have tried so many times to make our marriage works but he refuses, and I thought his decisions were because of the woman he’s having an affair with. After 5 years from 2002, he told me that he will file for an annulment, in which I did not agree with him (for fear of losing the rights of my children). Can he file for an annulment although he’s the one having an affair? Can he use internet materials such as messages, emails, diskettes as proofs to go against me as the one being psychological incapacitated, and had told me to cooperate with him as being on that state so the process of annulment can push through? What can I do to go against him?
Right now, I do believe that he had possibly contracted a marriage in Saudi Arabia to be with this nurse there (also a filipina). The kids didn’t like what’s happening with us and didn’t want us to get separated. What can I possibly do? Thank you for your help. I do appreciate it a lot.

Good Day,
Didi

Atty. Gerry T. Galacio said...

A marriage license is applied for in the town or city where the man or woman is a habitual resident. Once issued, the license is good for 120 days and can be used anywhere in the Philippines. Even if there is irregularity in the place where the license was obtained, this does not necessarily make the marriage void.

Pastors or religious minsters as rule are not bound by any limitations on where in the Philippines they can solemnize marriages.

“They got their license from Cavite” but “they never submitted any papers.” What do you mean by this?

A lot of times, people who get married in quickie marriages solemnized by religious ministers in the city halls of certain places in Metro Manila find out later on that the marriage licenses are issued from towns in Cavite. The problem is that usually these men and women are asked to sign papers they do not read. It turns out later on that what they are signing are applications for marriage licenses with the license already pre-dated and issued by some towns in Cavite. If these men and women inquire from the Local Civil Registrars of these towns and/or with the NSO, they discover that there are records of their applications and the license on file. Based on the presumption of regularity of performance of official duties, these documents are deemed therefore to be regular.

Even if the license was faked, the man and woman cannot simply take the law into their own hands and declare by themselves that the marriage is void. Article 40 of the Family Code provides that for purposes of remarriage, they must file a petition on court asking for the declaration of the nullity of the marriage.

Atty. Gerry T. Galacio said...

Didi,

Please check your e-mail. I already sent my reply.

Anonymous said...

hi good pm sir...i would like to seek legal advice from u with the ff concerns of mine. (1)i applied for a passport last 2008, at that time i applied using my married name.but then,i was advice by my uncle to apply for a new passport using my maiden name.by the way,me and my husband are not in good terms, we are not living together anymore.i would like to know ifi can apply for a new passport using my maiden name???and what are the steps to do in order for this to happen???what are the requirements??? (2) i would like to file for annulment. but what will i do, i dont have a job right now.can u give some help legally in order to file for petition for annulment?i just want to be of this marriage.i want to be free soon.and i want to use my father's last name again.please help me sir..

Anonymous said...

by the way sir here's my email add setski11@yahoo.com..tnx

Atty. Gerry T. Galacio said...

You are married and therefore bound by our law on surnames for married women. Please read my post “Miss, Ms. Mrs? Philippine law on surnames for married women” (look for the link in the sidebar). As to whether you can apply for a new passport using your maiden surname, you have to inquire with the DFA.

I have discussed the issues on annulment and petition for declaration of nullity of marriage numerous times already. Please read my posts on marriage, void and voidable marriages, the comments and my replies to the comments.

As a matter of practice, I will not send my reply through the e-mail address you stated. I do not have any assurance that this is really your own e-mail account.

Anonymous said...

Hello! Gud am po. Ask ko lang po kung me karapatan po ba ako na manghingi ng sustento sa tatay ng anak ko kahit na hindi kami kasal. Isa po siyang pulis at ako nmn ay walang trabaho sa ngayun...

Sana po ay masagot mo ang katanungan ko...
Maraming salamat po

Atty. Gerry T. Galacio said...

Yes, you can ask for support through a Protection Order even if you are not married to your child’s father. RA 9262 applies to a wife, former wife, mistress, former mistress, girlfriend, former girlfriend, sexual or dating partner, former sexual or dating partner.

Anonymous said...

hello atty.,
gusto ko po sanang humingi ng advice tungkol sa pakikipaghiwalay ko aking asawa, gusto ko po na mag pa annull. mula po nung 2003 ay hindi na kmi nagkita, bago ko po nag abroad ay mag away po ang asawa ko at magulang ko at nagkasakitan silang dalawa. at ng makapag abroad na ako sa taon din yun, sa kabila ng mga pangyayari tumulong pa rin ako sa kanya sa pagpapadala ng pera at pinag aral ko pa siya. Pero ng makapagtapos sya ay hindi pa rin sya nagtrabaho at umasa pa rin sa akin. wala kaming anak. Hanggang sa nawala na rin ang amor pagmamahal ko sa kanya. Nang umuwi ako ng pinas ay hindi na ko nagpakita sa kanya at tumuloy ako sa magulang ko ng 2 months at Muli akong nag abroad, 2007, pero may nakilala ako at nagmahal na ulit. nagkaroon kmi ng anak taong 2008. ano po ang dapat kong gawin? gusto ko pong maannul ang kasal ko dati. Para po sa kinabukasan ng anak ko. Pano po ang dapat kong gawin. Ngayon taon po ay may bakasyon lang ako na isang buwan sa pinas. at kya bang makapagfile ng ganon kabilis? at ano ang mga papeles na kakailanganin?
maraming maraming salamat po.

Atty. Gerry T. Galacio said...

Please read the following posts (look for the links to the sidebar):

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?
A petition for declaration of nullity will take more than a year to finish. PLUS, there is no guaranty that it will be granted by the judge.

Pleas also read my Salt and Light blog post titled “Biblical grounds for divorce and remarriage” at http://-salt-and-light-.blogspot.com/2005/12/divorce-and-remarriage_26.html

Anonymous said...

Good evening Atty. I just want to ask that I have a boyfriend but he still married my question is his wife caught having sex with other man years ago but after a year they reconciled due of his love to his son, but years to come even they were together they act civil but just a husband and wife, emotionally and physically they were nothing. His wife always use their son to let this man come back on her arms but the man doesn't love him anymore. what were going to do? the one who made first mistake is her, we want to our relationship in legal but her wife doesn't want to release him. she's asking a support for her. Is it ok?

Atty. Gerry T. Galacio said...

The Supreme Court ruled in the 2004 case of “David B. Dedel Versus Court of Appeals And Sharon L. Corpuz-Dedel a.k.a. Jane Ibrahim” that sexual infidelity or perversion does NOT necessarily constitute psychological incapacity. Meaning, the man will have difficulty having his marriage declared null and void because of the wife’s infidelity. Furthermore, the Supreme Court has ruled that every doubt must be resolved in favor of the validity of the marriage.

Anonymous said...

Dear Atty. Galacio,
I have a friend who had been separated from her husband since the birth of their child 14 years ago. They got married of course and the child is using the father's name in all her school records. Right after birth, the father disappeared and my friend handles the custody and upbringing of the child. She wanted to change the surname of her child to her name since the whereabouts of the father cannot be located. She has been separated for 14 years now, and as the law said, marriage can be considered null and void after 4-5 years of separation. I knew that nullification of marriage should be done in court for legality and formality. My question is, how long will it take to process the changing of the child surname to the mothers name if it is done in court. What documents are necessary to submit.

I am looking forward for your advice. Thank you very much.

Atty. Gerry T. Galacio said...

1. “She has been separated for 14 years now, and as the law said, marriage can be considered null and void after 4-5 years of separation.


The Family Code does NOT say that a marriage can be considered null and void after 4-5 or seven years of separation. This is a common misconception. Please read my post “If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?” (look for the link in the sidebar).

A possible option for your friend is to file a petition for “declaration of presumptive death for purposes of remarriage” under Articles 41 to 54 of the Family Code, as I discussed in the post I cited.

2. “She wanted to change the surname of her child to her name since the whereabouts of the father cannot be located.”


The child is legitimate and is therefore entitled to use the surname of the father. Your friend cannot ask the court to have the surname changed because of the child’s legitimacy. The only way the surname can be changed is when the child is validly adopted under the requirements of RA 8552 Domestic Adoption Act of 1998.

Anonymous said...

Dear Atty. Galacio,

My father had a lived-in partner from 1991 until his death in 2003. There are no annulment nor legal separation filed (both) by my parents. I have a half sister in my father's lived-in partner,she's turning 18 this december.Year 1991, my stepmonm moved into our house, while my mother was still working abroad without any knowledge of my father's affair. My brother was 9 and I was 10 y/o at that time. So we moved out of the house and lived in my uncle's house (brother of my father).My mother came home from abroad and filed a case against them, they were put in jail for a few days as I remember. But when my mother left again for abroad, they continue their affair. So when my father died, after his burial, my stepmom refused to step down from our house, we even went to the brgy but she still refused. after a few hearings, we were able to get a certificate to file action to the court, but we didnt file any case because as much as possible we would like to do it in a diplomatic way. The lot was acquired by my mom when she was still a Nurse in the hospital (already married to my father) and as an employee, one of the benefits is acquiring a lot, as what RA 7999 indicate.We have documents coming from the hospital that the lot was allocated to my mom. so there is no real land titles yet only rights. Before my stepmom lived with father, the house was already built out of my parents salaries when they are still working abroad. With regard to the land rights, The NHA survey of 1997, my stepmom and my father are the ones who where surveyed. And my stepmom insist that she has the rights over the house because she was surveyed by NHA on 1997.She even prevented us from entering our house and told us that we are trespassing. We wrote a letter to NHA stating our census claim over the lot. and the NHA said that the subdivision plan is not yet approve and we are still subject to a hearing once the arbitration and awards committee has its meeting.at this point, after 6 years of my father's death, my stepmom, her children from her first husband and some tenants are living in our house. We filed a complaint again at the brgy and we are decided to file a case against her at the court. So what are our chances? knowing that we are the legitimate heirs of my father. thank you very much.
JA

Atty. Gerry T. Galacio said...

JA,

As you stated, the NHA awards and arbitration committee is currently meeting over this issue. You should retain the services of a lawyer who can represent you in the NHA hearings and to pursue an appeal if that becomes necessary.

lheya526 said...

I wanted to file a legal separation, my husband is a seaman, for my husband abandoned me and my 2 kids. He is now 2 months having a relationship with another woman whom he tells me he wanted to have a child. my 2 kids are not his. i have 1 child before we marry that is he knows. we have a child then but is now dead. the third child i bear was not his but he knew it because we can’t have a child anymore because of his genes problems. my third child is legally his because we are married and his surname is use. He verbally and emotionally abused me. He tells me he will not support us and i will not receive any of his allotment anymore. he is now living at his parents house with his other woman. we don’t have any communications now……I just wanted to know if I could get this legal separation…..or is it legal for us to make an agreement in which we will sign a documents certifying that we no longer have any relationship and communications at all….. i don’t want to file a case against him.. please help me…i don’t have any job right now…so financially am not able…please send info in my e-mail address (lheya526@yahoo.com).. thank you very much. May God bless you more.

Atty. Gerry T. Galacio said...

lheya526,

1. I will not reply to the e-mail address you gave since I do not have assurance that the email is yours.

2. Legal separation is different from declaration of nullity or of annulment of a voidable marriage. Please read the "Frequently Asked Questions" section of www.familymatters.org.ph

3. Please read my Legal Updates post “Support for abandoned woman and family” or download my free PDF newsletter Issue no. 004 July 31, 2008 on the same topic.

Essentially, through a Protection Order, the court will order your husband 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 and/or his employer fail to do so, they can be charged with contempt of court.

The Family Code provides that 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 shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

4. “is it legal for us to make an agreement in which we will sign a documents certifying that we no longer have any relationship and communications at all”

This kind of agreement is immoral and illegal. Please read “Can a husband and wife in a notarized document declare that they are free to marry other persons and they will not file charges against each other?” (look for the link in the sidebar).

5. For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try asking for help from SALIGAN (Sentro ng Alternatibong Lingap Panligal) Manila, G/F Hoffner Building, Social Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City, Philippines; Tel. (632) 426-6001 loc. 4858-4860, Telefax: (632) 426-6124; E-mail: saligan@saligan.org; Website: www.saligan.org

You can also try asking for help from the Integrated Bar of the Philippines (IBP) chapter offices in your town or city. The IBP chapter offices are usually located in the Hall of Justice.

Besides the IBP, you can also try to ask for help from the OLA (Office of Legal Aid) of the UP College of Law in Diliman, Quezon City. The San Beda College of Law in Mendiola, Manila also has a free legal clinic.

Minerva Ramirez said...

good afternoon attorney,

i was previously married to this guy, that was 1997. We were married by a judge in Pasay City Hall. Although we never live together because I found out that he was already married back then, he never told me that he has an existing wife before we got married and I was confronted by his wife. So I broke up with him and never seen him again up to this day. In my case, can I apply for a nullity of my previous marriage so that I can re-marry again and declare that marriage null and void? Hope you can provide me with some legal insight, thank you very much and God Bless.

Ritchee Jane said...
This comment has been removed by the author.
Atty. Gerry T. Galacio said...

Minerva,

Since your husband was already married at the time you got married, your marriage is bigamous and void. For purposes of remarriage, Article 40 of the Family Code requires that you must file a petition to have your marriage declared void.If the court grants the petition and the judgment has become final and executory, then you can get married again.

Minerva said...

Dear Attorney,

Thank you very much for your reply at least I have an idea on how will I handle this problem. Attorney I have a follow-up question, what if I get married abroad say in US, Australia or Japan, and I never went to court to make my marriage here in the Philippines voided, will they verify my records here in the Philippines as part of their requirements and if they found out that I have a previous marriage here in the Philippines that was not legally voided will they allow me to get married on their country? Thanks and God Bless.

Minerva

Atty. Gerry T. Galacio said...

Minerva,

I am not familiar with the procedures followed by other countries in their requirements for marriage. However, you will be creating a lot of legal complications if you get married without first having your marriage here declared null and void.

If it is discovered later on, for example, that you got married in that country without having your marriage here annulled, you can possibly be charged with bigamy over there.

Anonymous said...

dear atty,
ask ko lang po kung yong anotated birth certificate ay pwede pang palitan. kasi ganito po iyon.ang teacher po ng pamangkin ko ay di tatanggap ng birth certificate na anotated. ang apelyido po nadala niya ngayon ay sa tatay niya pero ang sa birth certificate ay apelyido ng nanay niya. pero anotated na po sa apelyido ng attay niya. aywa tanggapin ng teacher ang sabi palitan niya ang card na ang apelyido ay yong sa nanay nito. nagalit po ako dahil ang documents niya mula elemntary ay yong apelyido talaga ng tatay niya. sabi niya policy daw iyo sa school.
thank you po.

Atty. Gerry T. Galacio said...

Under RA 9255, an illegitimate child is allowed to use the surname of the father. This is why an annotated birth certificate has been issued to your “pamangkin”.

If the principal does not allow the use of that annotated birth certificate, then you should inquire or file a complaint with the Division Office which has jurisdiction over that school.

ding said...

hello atty:please help me sa problema ko tungkol sa asawa ko.ikinasal kami nung 1999.may 2 kaming anak na lalaki.maayos naman ang pagsasama namin pero noong 2007 nagsabi ang asawa ko na magabroad.hindi ko pinayagan pero nagsipumilit siya.pumunta sa manila para mag apply for abroad,doon niya nakilala ang isang security guard na nagiging karelasyon niya mula 2007,nagsama pala sila sa manila 2007,umalis ang asawa ko 2008 pero continous pa rin ang communication nila.naidownload ko lahat ang messages at call history nila sa internet.gusto ko ipadeport ang asawa ko,saan kaya ako pwede magpatulong o paano para madeport ang asawa ko.sana po matulungan mo po ako atty....salamat!!! ding

Atty. Gerry T. Galacio said...

Ding,

Please read my post on adultery, concubinage and psychological violence (look for the link in the sidebar). You should file a criminal case against your wife. After the case has been filed and the court has issued a warrant of arrest, you can coordinate with the Department of Foreign Affairs as to how your wife’s passport can be cancelled. If her passport is cancelled, then she will be forced to come back here to the Philippines.

ding said...

hello atty: kung sakali magfile ako ng criminal case against sa wife ko,may tendency ba na madamay ang kinabit niyang lalaki???napagisipan ko na kahit hindi ako magfile ng criminal case basta madeport sana siya.paano at saan ako pwede lumapit para madeport siya..kahit hindi ako magfile ng case laban sa kanya.thanks po atty.and hope to hear again from you..God bless you atty.

Atty. Gerry T. Galacio said...

Ding,

Your wife cannot simply be deported without any valid reason (like a pending criminal case here).

If you file a criminal case of adultery against your wife, the Revised Penal Code requires that the man (the adulterous partner) also be included in the case.

Anonymous said...

good day atty! i was married last 2002, i was only 23 yrs old at that time and as far as i remember i dont have any parental consent. i was still in college when i got married and my parents didnt know anything about it. during those times, mostly i stayed in the dorm while my wife stayed in their house. and even at the time we got our own place, mostly i still dont stay there. it was only her who stayed in our place bec it was near her workplace. until one, i came to realize that i really dont love this girl. and i only married her bec nahihiya akong humindi sa parents nya coz it was them who suggested that we get married na. in the later years of the said marriage, i no longer stayed with her. after finishing college, i went back to our province. there i met this woman, and we got into a relationship. she didnt know i was married. in 2006, i finally had the guts to say to the woman that i got married with that its over between us. same year, i had a son to the woman i met and we are now living together for 4yrs. also after a year, the woman i was married to also got into a relationship. and i believe that they are living together. i want to file an annulment, but the other party is giving me a hard time by not responding to my messages. informing her about my plans. when finally we got to talk, she kept on mentioning that the annulment will be more beneficial to me than her. i explained to her that it will be beneficial for both of us, coz once annulled. she can get married. now, she doesnt want to cooperate. and is threatening to sue me for bigamy bec she learned that i got married again to the woman im with right now. can i not file a adultery case to her to counteract her case against me? what is the best thing to do?

Atty. Gerry T. Galacio said...

1. “i was married last 2002, i was only 23 yrs old at that time and as far as i remember i dont have any parental consent”

Between the ages of 21 to 25, parental consent is not needed. What is needed is parental advice. Even if you did not have parental advice when you got married, this cannot be used as a ground to invalidate your marriage.

2. “and i believe that they are living together”

In filing an adultery case, you need proof of sexual relation between the wife and paramour. Your belief or suspicions are not enough to convict her. Please read my post “Adultery, concubinage and psychological violence” (look for the link in the sidebar).

On the other hand, bigamy is easy to prove. It is just a matter of records (the marriage certificates on file with the Local Civil Registrar and the NSO).

Anonymous said...

Hi Atty.


This is for my mom's situation. My mom was married to her 1st husband and left him 30 years ago with no communications at all. My mom met my dad years after, and they lived together for about 25 years. My dad suffered from a minor stroke because of his diabetes resulting to a slow recognition, however my dad can still recognize people and can make decisions if he wanted something or not, this was happened in year 2006, when my dad's relative heard of what happened they tried to get my dad away from my mom, they planned not to give him back. I went to them and asked to let my dad go home. Same year they decided to get married, 2months later, my dad's sister and her mother sue my mom for bigamous case. In year 2009 my dad died, after few months my mom submitted some requirements to received their SSS pension, However whitout our knowledge, my dads relatives submitted a report of filed sue against my mom, making SSS put the pension on hold. Right now my mom is getting nothing and every night I can't help but cry because of their situations, my mom is living together with their 2 adopted kids. Every time I get my salary, I always give some to my mom, I dont know what I can do to help her, is my mom dont have a right for the pension? she was the main beneficiary of my dad's sss. I dont know why is this happening since they both live together for long years until my dad died, my mom was there beside him. I hope you can give me thoughts..

Atty. Gerry T. Galacio said...

“is my mom dont have a right for the pension”

Please read the Supreme Court decision in SSS vs. delos Santos G.R. No. 164790, August 29, 2008.

Your mother’s marriage is bigamous and void since she was validly married to another person. Please take note that bigamy under the Revised Penal Code of the Philippines is a public crime. Anyone with knowledge of the facts can initiate the filing of the criminal complaint.

As to whether the SSS can invoke the bigamous nature of the marriage in order to avoid the payment of retirement benefits, that is a justiciable question (meaning, it is up to the courts to decide). If SSS refuses, than a proper petition can possibly be filed in court.

HOWEVER, please take note that Philippine courts follow the principle of equity (“he who comes to court must come with clean hands”). Any petition filed by your mother just might be denied on the basis of equity.

Please consult other lawyers who may have opinions different from mine or who may be able to suggest alternative courses of actions.