Saturday, July 21, 2007

Financial support for abandoned woman and her children

Summary:

[1] If you and your children have been abandoned by your husband or live-in partner, you can compel him to give financial support by filing a petition for Protection Order under RA 9262.

[2] In filing this petition, you can get free legal help from the Public Attorneys Office or the Integrated Bar of the Philippines chapter offices. You can file the petition with the Family Court of the place where you live.

[3] Support includes everything necessary for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of your family.

[4] You can ask for support pendente lite (while the case is ongoing).

[5] The Family Court judge will set the amount of support in proportion to your needs and the resources of your husband or live-in partner.

[6] In the Protection Order, the judge will direct the employer of your husband or live-in partner to remit the support directly to you and your children.

[7] If your husband or live-in partner and his employer disregard the Protection Order, you can ask the judge to cite them for contempt of court. The penalty for contempt is imprisonment or fine.

Free PDF newsletter on how to obtain support for abandoned woman and family(Note: Click the picture to download a free PDF newsletter on this topic.)

One question that has been repeatedly asked me is, “How can a woman or her children, abandoned by the husband or live-in partner, get support for their financial needs?” Here’s a brief primer on the issue of support.

What law governs support?

The specific provisions of the Family Code of the Philippines on support can be found in Title VIII, Articles 194 up to 208.

What does support consist of?

Article 194 of the Family Code defines “support” as comprising everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported includes his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation includes expenses in going to and from school, or to and from place of work.

During proceedings in court for legal separation, annulment of voidable marriage or declaration of nullity, how will support be provided for?

Article 198 of the Family Code provides:
“During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order.”

Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC on how our courts determine the amount of support)


How much is the amount of support to be granted?

Article 201 provides that the amount of support, in the cases referred to in Articles 195 and 196, should be in proportion to the resources or means of the giver and to the necessities of the recipient.

Can support be reduced or increased?

Article 202 provides that support can 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 it.

When can support be demanded? When shall payment be made?

Article 203 provides that the obligation to give support is demandable from the time the person who has a right to receive it needs it for maintenance, but it cannot be paid except from the date of judicial or extra-judicial demand.

Support pendente lite (while the case is being heard in court) may be claimed according to the Rules of Court.

Payment must be made within the first five days of each corresponding month. When the recipient dies, his heirs cannot be obliged to return what he has received in advance.

What options, if any, are there for the person obliged to give support?

Article 204 provides that the person obliged to give support has the option to fulfill the obligation either:
(1) by paying the allowance fixed, or

(2) by receiving and maintaining in the family dwelling the person who has a right to receive support.
The second alternative cannot be used if in case there is a moral or legal obstacle.

What rights, if any, do family relatives or strangers have when they render support to the abandoned woman and her children?


Article 206 provides that when, without the knowledge of the person obliged to give support, it is given by a stranger, the latter have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed.

Article 207 also provides that when the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. Article 207 particularly applies when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed.

What other laws provide assistance to women abandoned by their husbands or live-in partners?


[1] Republic Act 8972 or the “Solo Parents Welfare Act of 2000” provides benefits to single parents. For more information, please refer to my primer on RA 8972 .

[2] Republic Act 9262 or the “Anti-Violence Against Women and their Children Act of 2004” provides under Section 5, paragraph (e), sub-paragraph (2) that it is a crime to deprive or threaten to deprive the woman or her children of financial support legally due her or her family, or to deliberately provide the woman's children insufficient financial support.

How can this right under RA 9262 be availed of?

The abandoned woman or her children can ask the Family Court to issue a Protection Order. Section 8, paragraph (g) of RA 9262 states that the Protection Order will

“direct the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court.”
Hold Departure Order under RA 9262

Section 36, Rule V of the Implementing Rules and Regulations of RA 9262 expressly allows the issuance of a Hold Departure Order against the man; for example, if he is an OFW or a foreigner, so that he cannot leave the country while the petition is being heard. Section 36 states:

Hold Departure Order. – The counsel for the victim-survivor or applicant may request the court for a Hold Departure Order in the application or petition for protection order. The court shall expedite the process of issuance of a hold departure order in cases prosecuted under the Act.
Section 36 of the IRR implements Section 37 of RA 9262. For more information on this matter, please refer to my previous article on Protection Orders.

What if the husband is working abroad and refuses to communicate with and support the woman and her kids?

The problem here is that the husband is outside the jurisdiction of Philippine courts. One solution can be, if the husband returns home to the Philippines for whatever reason, the abandoned woman can immediately file a petition for Protection Order under RA 9262 and at the same time ask the court to issue a Hold Departure Order under Section 37.

Another long term solution is to ask Congress to pass a law or for the appropriate government agencies (like the POEA) to implement regulations similar to those imposed on Filipino seamen. As part of the employment contract, a certain percentage of the husband’s salary should be mandated to be remitted to the family here in the Philippines.

How courts determine the amount of financial support in petitions for legal separation, annulment of voidable marriage, or declaration of nullity of marriage

The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the procedures that our Family Court judges must follow on these issues of custody and amount of financial support. Please take note that:

(1) This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

(2) This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the MCLE seminars I am attending say that they also use the Rule on Provisional Orders as guidelines in granting orders in RA 9262 cases whenever appropriate.

How the courts determine the amount of financial support for the spouses

Article 68 the Family Code states that “the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Thus, a husband or wife may demand from the other spouse financial support. Section 2 of the Supreme Court Rule on Provisional Orders states:
In determining support for the spouses, the court may be guided by the following rules:

(a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership.

(b) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage.

(c) The court may likewise consider the following factors:

(1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment;

(2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse’s future earning capacity;

(3) the duration of the marriage;

(4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market;

(5) the needs and obligations of each spouse;

(6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse;

(7) the age and health of the spouses;

(8) the physical and emotional conditions of the spouses;

(9) the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living; and

(10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from the salary of the spouse.
How the courts determine the amount of financial support for children, whether legitimate or illegitimate

The Family Code both provides that legitimate (Article 174 and illegitimate children (Article 176) are entitled to support. Section 3 of the Supreme Court Rule on Provisional Orders states:
The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise consider the following factors:

(1) the financial resources of the custodial and non-custodial parent and those of the child;

(2) the physical and emotional health of the child and his or her special needs and aptitudes;

(3) the standard of living the child has been accustomed to;

(4) the non-monetary contributions that the parents will make toward the care and well-being of the child,

The Family Court may direct the deduction of the provisional support from the salary of the parent.