Saturday, June 16, 2007

Can you legally force your spouse to live with and to love you?

Summary:

“The obligation to, live together, observe mutual, respect and fidelity is prompted by the spontaneous, mutual love and affection between husband and wife and cannot be enforced by any legal mandate or court order.”

The Family Code mentions the word “love” only twice. The first mention of the word is found in Title III which covers Articles 68 up to 73 on the rights and obligations of spouses . The second mention of the word “love” is in Article 220 which states the rights and duties of parents towards their unemancipated children. Paragraph (2) of the said article states that among the duties of parents towards their children is “to give them love and affection, advice and counsel, companionship and understanding.”

Article 68 states, "The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support." Since living together and observing mutual love, respect and fidelity are obligations under the law, the question is, can a wife or husband legally compel his or her spouse to come home and comply with such obligations?

The Supreme Court in the case of Ilusorio vs. Ilusorio-Bildner (G.R. No. 139789 July 19, 2001 and G.R. No. 139808 July 19, 2001) stated among other things that “consortium” or “coverture” (the obligation to, live together, observe mutual, respect and fidelity) is prompted by the spontaneous, mutual love and affection between husband and wife and cannot be enforced by any legal mandate or court order.

The Ilusorio decision written by Justice Pardo revolved around this issue: “May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.”

The Supreme Court as a final note in the Ilusorio decision stated, “No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.”

46 comments :

Anonymous said...

my husband and i have been married for 7 years and we have 2 kids, eldest is 6 turning 7 this year and the youngest is 3. i have worked before but presently i am unemployed. 2 years ago, me and my husband had a a big fight that caused our separation. he lived in his parent's house and i stayed with our kids in his house which he acquired when he was still single. but just last year her mother asked me to move in to their house since nobody will be staying and for me to save. so, me and my husband lived together but not as husband-wife but more of the so-called "civil" status. we had no sexual activity since the separation (more than a year now). he left last year to work abroad. since i am unemployed, his parents were the one supporting me with the kids' expenses, plus the monthly rental i get from our previous house. only late last year my husband supports me but i still need to ask for it every month.
i have plans of moving back to manila where my family and relatives live. and i am also planning to build a house on the lot my father gave me when i was still single.
my questions are:
1. Is the lot and the house to be build conjugal even if i acquire the lot before the marriage? what rights does my husband have? would you advice to go on with the building of the house of just have it sold?
2. about the custody of our children,will i have it even if i am unemployed? but i am actively looking for a job now.
3. If i decide to leave the house of my inlaws and get an apartment, will i still have the right to ask for the financial support of my husband?
4. If i decided to file for annulment of our marriage, will physical violence be enough grounds? i have a police blotter and medical certificate as proof but that was a year ago. does it have any lapse period?
kindly advice. thanks.
from: anonymous

Atty. Gerry T. Galacio said...

1. If you got married AFTER August 1988 (the date when the Family Code became effective) and in your marriage contract you did not indicate what regime of property relations you want, then AUTOMATICALLY, absolute community of property became the rule for you and your husband. This means that ALL properties you and your husband brought into the marriage are part of your conjugal property.

Since your marriage has not been declared null and void, the house to be built will be deemed as part of the conjugal property. The presumption is that everything acquired during the marriage is conjugal.

2. Under Article 213 of the Family Code, children below the age of seven cannot be separated from the mother (except for compelling reasons). The fact that you are presently unemployed is not a compelling reason SINCE you can avail of the Solo Parents Welfare Act of 2000 and you can ask financial support from your husband under Republic Act 9262. Please read my article Support for abandoned woman and family.
You can copy and paste this link http://famli.blogspot.com/2006/10/support-for-abandoned-woman-and-family.html

3. Please read the Frequently Asked Questions section of my Family Matters website. It has discussions there on what grounds can be used for declaring a marriage null and void. The psychologist will conduct an interview with you and from your testimony, he or she will state what the root cause of your spouse’s psychological incapacity is. The fact that he hurts you can be part of the evidence that he is psychologically incapacitated.

4. You can try to get free legal help from the OLA (Office of Legal Aid) of the UP College of Law in Diliman, Quezon City, OR from the IBP (Integrated Bar of the Philippines). The IBP chapter offices are usually located in the Hall of Justice of cities.

Anonymous said...

I am separately living from my wife for about 6 years now. I want to file an anulment but I don't know her whereabouts and i haven't heard from her since we last met plus I am currently working aboard a cruise ship reason why I only have 2-3months vacation every year. Also if ever I purchase a lot and put it under my name,will she still have a conjugal claim even if i got it whilst we are separated? Can you please tell me how I can get started and would it be possible to file a case even if i can't personally attend? Thank you so very much.

Atty. Gerry T. Galacio said...

1. Please read my article “If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?” located at http://famli.blogspot.com/2008/02/if-husband-and-wife-have-not-seen-each.html.

2. Since your marriage is still valid (despite not having seen your wife for more than six years), any property you acquire will be presumed conjugal and thus your wife if she ever appears, can possibly claim her share of it. But if you can prove with the proper evidence (documents, receipts, testimonies of witnesses, etc), that the property was acquired with your personal money, this property can be deemed as not being part of the conjugal property.

3. You have options of filing for petition for declaration of presumptive death for purposes of remarriage OR a petition for declaration of nullity based on Article 36 of the Family Code (psychological incapacity). At the very least, so that you will not worry about your wife claiming a share in the property you want to buy, you should file for judicial separation of property.

You have to attend the hearings of whatever petition you file. You can ask the court through your lawyer to schedule the hearings during the times you are here in the Philippines. OR through your lawyer, you can avail of what are called modes of discovery like DEPOSITION before action or petition. This will give you some breathing space so that certain portions of the petition can be held by the court even if you are not in the country. Please e-mail me so I can give you the names of lawyers who might be able to handle your case.

Anonymous said...

my husband and i have been separated for almost 7 years now and we have a daughter. only last year, i have secured pertinent documents from the POEA after i have presented our marriage certificate and have found out that he has declared his live-in partner as his legal beneficiary in OWWA and legal dependent in Philhealth, totally disregarding our daughter. my questions are:

1. what can i do about it? can i file a legal action regarding that?

2. what about my daughter? can i compel my husband to declare our daughter as his beneficiary?

3. do i still have a right over my husband even if we are already separated?

4. can i compel him to give his monthly support for our daughter even if he is on vacation?

by the way, my husband is working abroad as a seafarer and he has been supporting our daughter since February last year after i wrote to his agency asking for support.

Atty. Gerry T. Galacio said...

Please read my article Support for abandoned woman and family in this blog. Look for the link in the Previous Posts section on the sidebar.

Through a Protection Order under RA 9262, you can compel your husband to support your child.

You can ask for FREE legal help in getting a Protection Order from the IBP (Integrated Bar of the Philippines) chapter in your town or city. The IBP chapter offices are usually located in the Hall of Justice; you can also check the Internet for the IBP offices. You can also ask for help from the PAO (Public Attorneys Office) in your place. If you are from Metro Manila, you can also ask for free legal help from the OLA (Office for Legal Aid) of the UP College of Law, Diliman, Quezon City.

Anonymous said...

hank you very much aty. more power and god bless.

Anonymous said...

I'll be honest with you attorney, i'a m a lesbian who has a girlfriend who just gave birth last july 4,2008..he got pregnant with his co-worker,when we broke up just last year of august this guy already have two kids from two different woman..the pregnancy was never one of her plans,anyway they were just together for 2months when the guy intentionally got her pregnant because he knew that we had a relationship before they were together,this was probably because of the ego of the guy or insecurity with me because all the time that they were together,she was never happy with him..so after the first trimester of her pregnancy she ended their relationship,and we got back together..the guy disappeared
for a few months and he just suddenly appeared when my girlfriend is about to give birth, he signed the birth certificate of the child under his last name w/o the consent of my girlfriend, she originally planned to carry her last name for her child.. after being discharged from the hospital after she gave birth last july 4, she was confined again due to heart failure just this july 11,we're thinking that this was probably caused by the pressure and depression that this guy came interfering again after they broke up and most importantly in supposedly carrying her last name..
now she is getting frustrated that her child will unfortunately carry this guy's last name instead of hers..
will she still be able to change it to her last name even if the guy was the one who signed the birth certificate, since she did not know that the guy already signed the birth certificate cause she just gave birth, of course she was still weak at that time so she did not have the opportunity to sign the birth certificate herself, anyway they are not married and not even in good terms..
we really need help because we dont know what to do we're planning to take the baby away from the guy for what he did but he's threatening my girlfriend that since he signed the
birth certificate he can claim for custody or rights for the child,and according to him that he will do anything just so we may not take the baby away from him even if it gets to court..
attorney does he have this right to do so?
please we really need advise immediately before it's too late to
change the last name of the child to my girlfriend's, the mother..
thank you..
GODSPEED!

Atty. Gerry T. Galacio said...

1. For the answers to your questions on RA 9255, please read my article entitled “What’s in a name? Problems with RA 9255 and its IRR” dated July 14, 2008.

2. Please read my article ”Can a mother be deprived of custody of her child?” The man can petition the court to terminate the woman’s parental authority and for custody to be given to him on the ground of immorality, specifically, being involved in a lesbian relationship.

Anonymous said...

attorney,,with regarding your response to my letter ;
1. For the answers to your questions on RA 9255, please read my article entitled “What’s in a name? Problems with RA 9255 and its IRR” dated July 14, 2008.

2. Please read my article ”Can a mother be deprived of custody of her child?” The man can petition the court to terminate the woman’s parental authority and for custody to be given to him on the ground of immorality, specifically, being involved in a lesbian relationship


what if the guy is already married?
and is there actually a way to prove that the girl really is having a relationship with a lesbian? i mean there can never be any documentation to prove this right?
unlike if the guy was already married will it take away his right for the child?
and isn't it that the mother should have full parental authority over the child?
and what if the guy had police records of different cases?
can his right be taken away from the child?

thank you

Atty. Gerry T. Galacio said...

1. Please read my article “Custody battles over children: What determines fitness of one parent over another?” also in this blog. The judge will weigh the evidences presented by the parties involved. In the extreme case, the judge can, if it established that neither parent is fit, ask the DSWD or any child-rearing agency to take custody of the child.

In custody battles, the court's foremost consideration is the paramount interest of the child.

It is true that under Art. 176 of the FC, illegitimate children are under the parental authority of the mother. But the biological father can file the proper petition asking the court to terminate the parental authority of the mother and for such to be transferred to him.

2. In law, evidence can take the form of physical evidence, documentary evidence or testimonial evidence. In this situation, of course, there may not be documentation as you said, but the guy can present testimonial evidence (from family, relatives, neighbors, office mates, etc).

Anonymous said...

i am currently pregnant with my boyfriend (not exactly my boyfriend but something happened to us) but before him i have two children(my uncle is the father of the two). When i told my boyfriend about it he didn't give a comment but his mother don't accept me because of my pass (having two kid with my uncle). They don't believe that the father of my soon to be born baby is their son. What can i do for my boyfriend to support us? Please reply...
Thank you....

Atty. Gerry T. Galacio said...

You can file civil and/or criminal cases against the man under RA 9262 Anti-Violence Against Women and their Children Act of 2004. Please read the following articles:

Hope and help for the battered woman (2): RA 9262 essential provisions

Hope and help for the battered woman (3): RA 9262 Protection Orders

Hope and help for the battered woman (4): Emotional abuse / psychological violence


Please also read Support for abandoned woman and family also found in this blog. This applies to you even though you are not married to the man.

Essentially, you need to get a Protection Order from the court to obligate the ma to support you. Part of the Protection Order, you can ask the court to issue a Hold Departure Order.

You can try to get free legal help from the IBP (Integrated Bar of the Philippines) chapter in your town or city. You can also ask the DSWD in your area for help in filing a petition for Protection Order.

kc_21 said...

Hi Atty:
I hope you can give me an advice regarding my current situation. My husband and I got married early this year. After we got married, I went back to the US. We got married by a lady reverend, and in good faith thought that every thing is being handled properly. 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. 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 on 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 am in great need of your advice. Please help. Thank you very much.

Anonymous said...

Dear Atty.,

May I ask some advice? I am married with 4 children(2 are above 21 yrs old and 2 are below 12 yrs old). I am no longer living under the same roof with my wife for 6 years now.She lives in the house which we loaned as husband and wife. And I live and supporting my 2 younger children.

I already told her over and over again that our marriage is over and I don't want to live with her anymore. I want to sell the house so we could pay the loan.I told her I will give her her rightful share of the proceedsbut she doesn't want to sell it.

I have 2 questions:

1. can i force her to move out of the house so it can be sold?it would be a waste if she lives there and yet we won't be able to pay for the housing loan. by the way, the lot is an inheritance frommy parents.

2. since a legal separation and annulment can take so long, can i get a document saying that although i am still legally married to her, i am no longer in love with her,not living with her and that i have no care on what she does with her life and that she should no longer interfere with mine?

hope you can help me. thanks and Godspeed.

Atty. Gerry T. Galacio said...

Under the circumstances you should file a petition for judicial separation of property. This is governed by Articles 134 to 142 of the Family Code.

Please take note of Article 100, paragraph (2) as to your remedy for selling the house:

Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share.


3. As to that document you are contemplating, such is illegal and immoral. The Supreme Court as early as the 1930s has already ruled that any lawyer or notary public drafting or signing such a document will be disbarred. Please read my post titled “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?”

Anonymous said...

my female friend has been married via a shot gun marriage, and from the start she doesn't love her husband, they been married because of the influenced of parents of the guy who happen the boss of my friend's dad. is a marriage under this case can be declared as null and void from the start?

Atty. Gerry T. Galacio said...

Article 45 of the Family Code states that a marriage may be annulled if the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife.

Please take note of the last clause “unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife”.
Article 47 also states that the petition to declare the marriage void must be filed by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased.

This means that if your friend continued to live in with the husband after the force or intimidation has ceased, then the marriage can no longer be declared null and void. Your friend only had five years from the time the force or intimidation stopped to file the petition. Beyond the five year period, the petition can no longer be filed.

Anonymous said...

I am 47 yrs old and have been married for 27 years. When I got married, I was only 20 yrs of age and at that time my parents were in the USA. My brother was the one who signed the marriage license. My life as married has never been smooth ever since it started. I really do not love my wife and have stated because of the kids. Now I 3 children are over 20 yrs of age and the youngest is 13. I think its about time that I should file annulment. Can it be a ground for annulment the misrepresentation or forged signature of father as the consenting parents in the marriage license valid for annulment? 1982 was the year the marriage occured. I would like to know before I go through the process.

Atty. Gerry T. Galacio said...

When you got married in 1982, the prevailing law was not the Family Code but the New Civil Code of the Philippines. The FC’s minimum age for marriage is 18, while under the NCC, minimum marrying age was 14 for women and 16 for men.

Even without the parental consent, the NCC (and even the FC) provides that if the party whose parent did not give consent continued to live with the other party after reaching 21, then the marriage has been ratified. Since you continued to live with your wife and had several children with her, the lack of parental consent cannot be used as a ground for declaring a marriage null and void.

Anonymous said...

Im 26,at my age i already have a baby,the father of my baby is my ex-bf and we're not married,but my baby carries the surname of my boyfriend now,is it ok if i dont tell to the real father that im going to use d name of my present bf now? Does my ex has the right to my baby? He's going to file a case with me and he force me to come back to him,but i dont want him anymore,what case do i have to file to him,and what case they are going to file with me? Do i have d right to make all the decisions for my baby?

Anonymous said...

I had a bf right now and my baby carries his surname,on that certificate we're married even if its not,is there any case for that, and my ex want to have the authority for my baby i dont like to live with him but he is forcing me,if im not he and his family going to file a case for that,do they have any right to do that?

Atty. Gerry T. Galacio said...

A criminal case for forgery or falsification of public documents can be filed against ALL parties responsible for placing that false entry about the marriage.

You can possibly file a countercharge for GRAVE COERCION or any applicable case under RA 9262. You should retain the services of a lawyer to defend your rights.

Atty. Gerry T. Galacio said...

1. “the father of my baby is my ex-bf and we're not married, but my baby carries the surname of my boyfriend”

Your child is illegitimate and so under Article 176 of the Family Code, SOLE parental authority over the child belongs to you. Even if the child is using the biological father’s surname, the child is still illegitimate. What the biological father has is visitation right. If you and your ex cannot agree on the terms and conditions of the visitation, then you will have to go to court.

2. RA 9255 allows illegitimate children to use the surname of the biological father, which is the case with your child. You CANNOT simply use the surname of your current boyfriend for your child since he is not the biological father.

In order for your current boyfriend to have his surname used by your child, he must resort to adoption under RA 8552. However, adoption requires the consent of the biological father.

3. Your ex cannot force you to come back and live with him. You can file a petition for Protection Order under RA 9262 so that the court will order your ex to “stay away” from you, your child, or designated family members. Please read my RA 9262 posts (look for the links in the sidebar).

Anonymous said...

Good pm attorney, i just recently the new post comment,it is the same of my friend's situation, ask ko lang po if posible na ituloy nila yung kasal ng new bf nya,same day and month pero a year ago na ang nakalipas,pero gagawin nalang din nila na same year to fit sa birth certificate ng bata,and what if kung aayusin din yung certificate nung bata at ilalagay nalang yung surnamd ng mother coz ayaw nyang dalhim yung surname ng biological father,is it ok din na wag ng ilagay pati name ng father

Anonymous said...

Continuation: and ilang taon po sentensya ng forgery..and ok lang po ba magdecide yung girl kung what surname gagamitin ng bata,kung oo po,di pwede na maging biological father yung new bf nya kasi inari nyang sya ang ama ng bata, at pwede po ba nyang ilaban yun sa ex nya kahit naghahabol sila sa kanya pati sa bata? Eh ayaw nya na talaga dun sa ex nya,dhil na din sa nirape po kasi sya,and san po kaya kami pwedeng kumuha ng lawyer for poor like me and my friend.

Atty. Gerry T. Galacio said...

1. RA 9255 is meant for the benefit of the child, that is, to erase the stigma of being illegitimate. If however it can be proved that the child was the product of the crime of rape, the woman can fight it out in court so as to prevent the birth certificate from bearing the name of the biological father.

2. However, it cannot be made to appear in the birth certificate that the present boyfriend is the biological father since this is not true and will lead to the commission of the crime of “simulation of birth” under the Revised Penal Code and RA 8552 (the penalty is eight years imprisonment).

3. 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.

Anonymous said...

hello po. i would like to ask for your help, attorney. Im planning to purchase a house and lot through Pag-ibig financing. I have started paying for the downpayment which is payable in 18 months and so far i have paid 9 months. I am married but i separated from my husband three years ago. Its time for me to sign the contract to sell with the developer but they told me that since i am married, my husband needs to sign the document too. I am aware of the absolute community of property once two people get married.

My question is,

1. after we execute this contract and once i start paying for the amortization, can i file for judicial separation of property or legal separation, so that my husband will have no right on the property i am going to buy on loan?

2. can his two children in a previous marriage (to an indonesian national in indonesia) stake a claim on the property in case of myself or my husband's death (as inheritance)?

3. can i make a will in the future making my daughter who bears my maiden surname (i had a daughter with an ex-boyfriend before i met my husband) my only heir?

4. Is it possible that our marriage is null and void because of his previous marriage which he says is not valid anymore because he has not heard of his exwife for 15 years and because they got married in a foreign country?

I want to set things right in my life, getting married for all the wrong reasons has complicated and disastrous results. Please help me. thank you very much....

solo_mommy

Anonymous said...

My wife of 7yrs has left me and our 5yr old boy for 3months now. We have little communication after she withdrew large sums of money from our accounts. I am a foreigner. My wife moved out and has been living with her 'lola'. I have been looking after my Son entirely for this period with the help of our 'tita'.
From time to time, I have been sending my Son over to his Mother since he misses her but only to find out from 'tita' that she shows no response to his presence (they are neighbors). My wife may have found a new person in her life...I don't know precisely. She is 10yrs my junior. She is posting party pictures in her social network account. Anyway, I no longer have the same sentiments for her at this point in time.
I am about to purchase property and because of this situation, I would like to title the property under my Sons name. What right would my wife have over this new property in the future? Also, if I decided to sell it...what claims could she have over this sale? TIA

Atty. Gerry T. Galacio said...

TIA,

Your child is a minor and cannot therefore enter into contracts. You will need to have yourself (1) authorized by the courts to sign contracts in behalf of your son; and (2) be court-appointed as administrator of your son’s properties.

You will have to file a bond with the court if the property is worth over 50,000 pesos. Please read my post “Laban o Bawi: Parents’ obligations in handling their children’s property” (look for the link in the sidebar).

Also, under the New Civil Code of the Philippines, your wife is a compulsory heir of your son (and vice-versa). If and when your son dies, your wife will inherit from him.

As a foreigner, you might be interested in my post “Property rights of foreigners married to Filipino citizens; Can foreigners own land and other real properties in the Philippines?” (look for the link in the sidebar)

Atty. Gerry T. Galacio said...

solo_mommy,

I already answered your e-mail.

Anonymous said...

Thank you very much Atty Galacio, you have helped me a lot and enlightened me. God bless you for unselfishly giving your time and professional help to strangers like me. Thank you.

solo_mommy

Anonymous said...

Good Day Atty,

Just want to ask po kung what grounds ang pwede pong i-file ng friend ko for annulment.

He was married for 2yrs now, after ng marriage bumalik sya abroad until now di pa sya umuuwi ulit sa pinas, so hindi tlga sila nagsama ng asawa nya, napilitan lng daw syang pakasal sa girl at sa ngayon po wla n tlga syang pagmamahal sa girl kundi galit lng dahil sa nangyari,ano po ang dapat nyang gawin? Isa pa magkaiba sila ng relihiyon at di sila tlga magkasundo sa simula pa. please advice. maraming salamat po.

Atty. Gerry T. Galacio said...

The difference in religion is not a ground for declaring the nullity of the marriage.

Please read the Frequently Asked Questions section of my Family Matters website. Please also read my Legal Updates blog posts:

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?

Anonymous said...

I am married to wife for over 8 years now. We have 2 daughters, one is going 7 yrs old and the other is going 4 yrs. old. Our marriage has not been perfect. We got married here in Manila and moved to US. Unfortunately I got laid-off right before my wedding day. Despite of that, we moved to US after our wedding. Mever got employed again.

Out honeymoon baby was born and spend my life-saving for the birth of our eldest daughter. In addition, my mom has helped me for some of my expenses as well. After a year of unemployment, all of us have to move back to Manila, and my mom provided a business for me to run. The business has not been great, nmot making any return of investment yet. I got paid with a modest salary but nothing compared to a US compensation. It gets by for 2-3 years. Children gets bigger and we have to enroll them at school. We started to use our savings for their schooling.

Couple of years ago, my wife gets an overseas job but sell investment
in Manila. She got paid it HongKong dollars, and were directly deposited to her account.
She never had success with that opporunities and lost her job for about 1.5 years later. She's been unemployed for alomst a year now. I still pay for the tuition for the children with the help for my mom. She never contributed her savings to the family. To make my finances worset, I even have to rent a place close to school to give convenience for my daughters to get to school. Our finances has been tighter now. Now, my incomes just good enough to pay for the rent, utitities, groceries, gas and some necessities. Got no savings.

Nowadyas, when we usually get into argument, we would raised the divorce/separation issues. Do you think I have a case for this?

1. She's unemployed,

2. She does not chip in to the expense of the family, i.e. schooling, rental. she probably used for those some rainy days.
Note. my mom provided us a place to stay but is 30 mins to an hour
from school, but she opted for conveniece. I do care for the children. I felt she just wants to have more space for herself.

Continue paying rentals and not chipping is not helping to save for the school tuition next year.

I do love my children. I felt her
selfishness should not continue.
Do I have ground for children custody be it anullment or legal separation.?

Thanks in advance.

Atty. Gerry T. Galacio said...

As to having your marriage declared null and void, please read the Frequently Asked Questions section of my Family Matters website (www.familymatters.org.ph). Please also read my posts (look for the links in 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


Based on your narration, there doesn’t seem to be any ground for declaring your marriage null and void on the basis of “psychological incapacity” (Article 36 of the Family Code).

You and your wife (or you alone) should seek marriage counseling. Please try to contact Ptr. Clem Guillermo and his wife, well-known marriage and family counselors, through their nightly radio program “Heartline” aired over DZAS 702 Khz, 10:30 to 12. I think the DZAS tel. no. is 92-11-52. The program is available through the Internet at http://www.febc.ph/stations/dzas/index.html. Ptr. Clem’s office is in the Back to the Bible Building, corner of West Avenue and EDSA (opposite SM City North EDSA).

If you want people to pray for your family situation, please follow this link to a prayer room for men and women: http://womentodaymagazine.com/chat/share.html

Anonymous said...

Hi Sir. I need your assistance and advice for this matter.
I'm a 21 year old woman with a 3 months old baby boy. I found out I'm pregnant 2 months after i broke off with a guy. This is no marriage involved, just a dating relationship. I decide to keep the baby and gave birth. Recently, the guy knew of my situation and managed to find me. He pestered us with violent behaviour and threaten to gain the custody of the child by court. The baby bears my surname. However, the guy want the child to bears his surname. I'm a student therefore I'm unemployed. i have a foreign boyfriend who's taking care of me, supporting me financially. The guy that i broke up with did not give me any financial or physical support when he know I'm pregnant. From the course of pregnancy till now is 12 months. May I ask how am I supposed to handle this? Thank you sir in advance.

Atty. Gerry T. Galacio said...

Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines”. Please read also the comments and my replies to the comments. If your boyfriend manages to have the name of your child changed to his surname, I discussed in that post how to deal with this problem.

Under Article 176 of the Family Code, sole parental authority (which includes custody) belongs to the mother. Even if the child is using the father’s surname, the child is still illegitimate. All that the father has is visitation right. Please read my post on visitation rights (look for the link in the sidebar). Read the comments and my replies to the comments.

If the guy continues to harass you, you have the options of filing RA 9262 cases (civil and criminal) against him. Please read my RA 9262 posts. You can ask the court to issue a Protection Order called a “stay away” order. With this order, the man will be compelled by the court to stay away from you and your child, designated family members, and from places you frequent like your school, office, etc.

For any emergency regarding your son and the man, please contact the Melissawatch hotline of the DSWD through www.dswd.gov.ph. I am not sure if the mobile phone for this hotline for abused women is still current or not but try 0917-503-4264. You can also ask for help from the Women and Children’s Concerns Desk of the nearest PNP station.

Anonymous said...

I need your help pls. I am married to an american national but he is now living with his mistress, what case can I file againsy him and his mistress. I don't have information about the mistress but my jusband admitted to me that he is now living with his mistress becuase it's over now over with us, as simple as that. WE have no kids. He is not giving me any support at when I found out about this my health suffered a lot a lost a lot of weight and until now I still cant recover from the pain and agony. I want to file a case against the mistress but the appartelle where they live wont give any information about them. Waht will I do I dont have money to pay for a lwayer because am jobless and already in my fiftees. pls. help me. thanks.

Atty. Gerry T. Galacio said...

Please read my post “Adultery, concubinage and psychological violence” (please read also the comments and my replies to the comments). You can file RA 9262 cases against your husband.

In terms of support, please read my post “Support for abandoned woman and family”.

The following are offices or agencies you can ask help from. The addresses are for Metro Manila but you can try to contact their regional offices (specially the NBI).

Department of Social Welfare and Development (DSWD)Crisis Intervention Unit (CIU) Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel. Nos.: (02) 734-8617 to 18

Philippine National Police (PNP) Women and Children’s Concern Division (WCCD) Tel. No.: (02) 723-0401 loc. 3480 Call or text 117 (PATROL 117)

National Bureau of Investigation (NBI) Violence Against Women and Children’s Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403

DOJ Public Attorney’s Office Women's Desk, Tel. Nos.: (02) 929-9010; 929-9436 to 37

Anonymous said...

Please advice ... my brother's first born son (my nephew) just found out from his mother that he does not carry our last name in his birth certificate, and there is no signature from my brother stating he is the father. They were never married and my borther had moved on and had 7 more children ... For these so many years my nephew's been using our last name in all his forms, school papers and what not ( how he did that I don't know for sure ) he wants to carry our family name, but my brother passed away in 2000 so changing it in his birth certificate is out of the question. I am wondering how can he lagally change his last name ( his birth certificate shows his last name is his mother's maiden name ) to my brother's last name? If so what forms do we need? He was born and resides in Baguio City. What would be an estimate cost for this? Please help!! Thank you and God Bless!

Atty. Gerry T. Galacio said...

Please read my post “Should the private handwritten instrument in RA 9255 be signed by the father?” (look for the link in the sidebar). In this case decided by the Supreme Court, the father was already dead when the mother applied for a change of name from her surname to the father’s surname. You can follow the legal steps taken by the mother in this case to enable your nephew use his father’s surname. If your nephew is above 18, he can file the petition himself.

The cost will vary from lawyer to lawyer. Do not be shy or embarrassed in bargaining with lawyers as to their professional fees.

Anonymous said...

Gud evening Atty,

Please we need your adviced, i had a bf who had a son w/ her ex... but apparently they are separated and they are not married, His son carried his surname and he support his son regularly... My Bf now is an OFW now his Ex was aftering, she dont want anymore a support only for her son but also she want to marry now the father of his son.. But my Bf dont want anymore.. And his Ex want to file a complain to POEA.. My Question is, Is there any ground or case against to my BF...???

Anonymous said...

Hi there! I got married last april 2009 and also begot a child last sept 2009. after marriage, me and my husband had a shaky relationship which lead to separation. i was 4 months pregnant when we decided to be separated. he only knew i already gave birth after 2weeks of delivery. i stopped communicating with him after the separation. i lost my job before i give birth and now i found a new one. i haven't received any financial support from him since then. with regards to my new job, i need to submit impt docs such as pag-ibig, philhealth, and bir forms. i'm aware that I can still use my maiden name eventhough i'm married. would there be any conflict if i will keep my status as single but with my daughter as my dependent? sss and philhealth allowed me to remain single and add my daughter as my beneficiary. how would i go about bir and pag-ibig? pls help... i really need your advice on these matters. thanks! leannquiran@yahoo.com

Atty. Gerry T. Galacio said...

The ex can file civil and criminal cases against your BF under RA 9262 “Anti-Violence Against Women and Their Children Act of 2004”. However, your BF cannot be legally or judicially ordered to marry his ex.

Atty. Gerry T. Galacio said...

Leann,

I deleted your post to conceal your identity. You should not have posted your er-mail address.

“i'm aware that I can still use my maiden name eventhough i'm married.”

As I discussed in this post, the use of the woman of her husband’s surname is mandatory and not optional.

You need to consult the Legal Departments or Public Information offices of these offices (BIR and Pag-Ibig) as to their policies in situations like yours. You can also try asking for help from the PACU (Public Assistance and Complaints Unit) of the DOLE>