Kris Aquino and James Yap cannot adopt Bimby jointly or sequentially; only one of them can adopt Bimby
From the remarks made by the lawyer of James Yap, it seems that Kris and James got married twice before the same officiating minister. They had to get married again since in the first marriage, there was no parental advice from James’ mother.
(The news reports said that since James was only 23 years old at the time of the marriage, he needed parental consent for the marriage. This is wrong. Under the Family Code, persons from age 21 to 25 need parental advice, not parental consent. News reporters and their editors should really take the time to learn the basics of the Family Code.)
The questions are (1) Which marriage is considered as the official marriage, the first or the second? and (2) Did Kris and James obtain a marriage license for either the first or second marriage, or did they avail of Article 34?
Article 40 of the Family Code states that for purposes of remarriage, there must first be a declaration of nullity of the first marriage. But this provision contemplates a situation where the man or woman gets married the second time around to a different person (not the spouse in the first marriage). In Kris and James’ case, they got married to each other twice. As the saying goes, “things are getting curiouser and curiouser ...”
Note as of August 13, 2010:
According to various news reports on television, newspapers and the Internet, the grounds for Kris’ petition for declaring her marriage with James Yap void are:
1. The lack of authority of the solemnizing officer Rayda P. Tumaliuan, a minister of Holy Sacrament International Church, based on Article 35, paragraph (2) of the Family Code. (Several weeks ago, ABS-CBN reported that it was former Quezon City Mayor Sonny Belmonte who solemnized the marriage, and that Kris and James got married without a license)Since this case is already in court, I will not discuss its merits. Please take note however that Article 35, paragraph (2) clearly provides for an exception which news reports failed to point out. The exception states: “If one or both parties believe in good faith that the solemnizing officer had the authority, then the marriage is valid.”
2. Neither Kris nor James belonged to the minister’s religious sect contrary to what Article 7, paragraph (2) of the Family Code provides.
As to the issue that neither Kris nor James belonged to the denomination of the solemnizing officer, the news reports also failed to mention that there are two kinds of requisites of marriage under the Family Code: essential (Article 2) and formal (Article 3). I discussed below what these requisites are.
Article 4 of the Family Code states the effect of the absence or defect in the requisites:
The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35, paragraph (2).Justice Paras in his “Pre-Week Handbook in Civil Law” summarizes Article 4 in this way:
A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.
- Absence of any of the essential requisites – the marriage is void ab initio.
- A defect in any of the essential requisites – the marriage is voidable.
- Absence of any of the formal requisites – the marriage is void ab initio.
- An irregularity in any of the formal requisites – the marriage is valid but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.
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Last night, ABS-CBN’s TV Patrol showed an exclusive interview by Marie Lozano with the lawyers retained by Kris Aquino to end her marriage to James Yap. Kris’s lawyers said that she is seeking the declaration of nullity of her marriage and not simply a legal separation. Lozano then stated the background for the petition. It seems that Kris and James got married in Boy Abunda’s house with Quezon City Mayor Sonny Belmonte officiating the marriage. As the news report revealed however, Kris and James did not have a marriage license. It was only the day after the “wedding” that Kris got a marriage license from Makati.
(You can read the TV Patrol report by Marie Lozano in the ABS-CBN website; the problem is, Lozano isn’t a lawyer and so she didn’t know what the right questions should have been. Or maybe, as a condition for the exclusive interview, she might have been told beforehand what questions to ask and what not to ask. Incidentally, Lozano’s report as you can still view in YouTube or in the embedded video above, uses a page from my Family Matters website as the background graphic in the 1:51 mark. Thanks a million!)
What legal lessons can we learn from this situation? The breakup of any marriage is a tragic event. What makes this situation between Kris and James (and Baby James) even more tragic is that, since they are both celebrities, their breakup is a very public event. One good thing that can possibly come out of this situation is that Filipinos, as they follow the developments on radio, TV and the Internet, will learn about Philippine laws on marriage and the family.
Differences among legal separation, annulment of voidable marriage and declaration of nullity of void marriage
Legal separation is different from annulment, and for that matter, annulment is different from declaration of nullity.
Legal separation is governed by Articles 55 to 67 of the Family Code; if the court grants the petition, the spouses are separated but their marriage bond remains. This means that the couple cannot marry other parties, and the woman is still bound to use her husband’s surname. These are the reasons why Filipino couples in trouble do not want to file for legal separation.
“Annulment” refers to voidable marriages under Articles 45 and 46 of the Family Code. On the other hand, “declaration of nullity”, which Kris is seeking, refers to void marriages under Articles 35 to 41. Filipinos, who do not know the difference, generically use the term “annulment” to refer to both processes. The difference between legal separation on one side, and annulment and declaration of nullity, on the other, is that in the latter two cases, the spouses can later on get married to other parties.
Annulment and declaration of nullity are not divorces; we do not have a divorce law in the Philippines. In divorce, the grounds arose after the marriage, while in declaration of nullity, the grounds were already there even before the marriage. In practical effect however, annulment and declaration of nullity are the same as a divorce; the couple (once their marriage has been dissolved) can marry other parties.
Essential and formal requisites of marriage
Unlike what some people think, Kris and James's marriage is valid even if it took place in Boy Abunda’s house and not in a church or in the mayor’s office. The ground for Kris’s petition for declaration of nullity is that she and James did not have a marriage license. They got the marriage license AFTER the wedding.
The Family Code provides two requisites for marriage – essential and formal. Article 2 of the Family Code states what the essential requisites are:
Art. 2. No marriage shall be valid, unless these essential requisites are present:As the term denotes, the essential requisites are well, essential. Without the essential requisites, the marriage is void. (Please take note, however, of my discussion on Article 40 of the Family Code below.)
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
Difference between parental consent and parental advice; minimum marrying age under the Family Code different from the New Civil Code
The Family Code states that the minimum marrying age is 18; the marriage is void for anyone who gets married below 18 even if such marriage had the consent of the parents.
For persons between 18 to 21, parental consent is necessary for marriage. For persons above 21 (and one day) to 25, only parental advice is needed. If there is no parental advice or if the advice is adverse, there is a mandatory waiting period of three months before the marriage license is issued. For persons above 25 (and one day), no parental consent or advice is necessary.
Please take note that the Family Code of the Philippines became effective on August 3, 1988. Prior to the effectivity of the Family Code, the prevailing law on marriage was the New Civil Code of the Philippines. Under the NCC, the minimum marrying age was 14 for women and 16 for men.
Lack of a valid marriage license makes the marriage void
The marriage license is a formal requisite as Article 3 of the Family Code states:
Art. 3. The formal requisites of marriage are:Kris’ petition for declaration of nullity is based on Article 4 which states: “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).” The Family Code states exceptions when a marriage license is not required but these exceptions apparently dd not apply to Kris and James.
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.
(The exception in Article 35, paragraph 2 refers to a marriage solemnized by a person not legally authorized to do so; if any or both parties believed on good faith, however, that the solemnizing officer had the proper authority, the marriage is considered valid.)
Problems and questions with Kris’ petition
But if Kris and James got their marriage license only after the “wedding”, what did they state in their marriage certificate as to the date of their wedding? Did they make it appear in the marriage certificate that they got married after they obtained the license?
If the marriage certificate shows that the date of the wedding is BEFORE the date of the issuance of the marriage license, then Kris may possibly use this as the basis for her petition.
If Kris and James made it appear in the marriage certificate, however, that they got married AFTER the issuance of the license, then Kris’s petition will run against the principle of equity. This principle states that “A person who comes to court must come with clean hands”. This simply means that the court may dismiss Kris’s petition on the basis of equity since Kris and James brought this problem upon themselves.
A public document on the files of the National Statistics Office like a marriage certificate is presumed regular. Will Kris be admitting in her petition that she misstated the date in her marriage certificate? On the basis of the presumption of regularity of public documents, the court may not believe Kris's claim. The court can possibly say that Kris’s claim cannot be given any credence since it is self-serving. (The term “self-serving” has a technical legal meaning.)
If Kris will be claiming in her petition that she got her license after the wedding and/or that she misstated the date in her marriage certificate, she will put solemnizing officer Mayor (now Congressman) Sonny Belmonte in a very difficult situation. Mayor Belmonte, in compliance with the Family Code, should have required Kris and James to present to him their marriage license before he solemnized the marriage. I’m sure his political rivals will use this issue against him.
Please take note that the Family Code which became effective in August 1988 removed from mayors the authority to solemnize marriages. However, the Local Government Code of 1991 brought back to mayors this authority. I have been told that in many towns and cities, the mayors simply sign the marriage certificate with someone else conducting the actual marriage ceremonies.
Difference between absence and defect in the requisites of marriage
Please take note of the difference between the absence of a marriage requisite and a defect in the requisite.
- The lack or absence of an essential or formal requisite makes the marriage void.
- A defect in the essential requisite does not affect the validity of the marriage, but there can be civil, criminal and administrative liabilities for the party or parties involved in the irregularity (second paragraph of Article 4).
Please take note that the marriage contract or certificate is not an essential or formal requisite of marriage under the Family Code. Even if there is no copy of the marriage certificate in the files of the National Statistics Office, it cannot be said that the marriage is void. The existence or validity of the marriage can still be established through the marriage license, testimonies of the solemnizing officer and witnesses, etc.
Even if the marriage is void, there must be a court judgment declaring the marriage void
Please take note however, that Article 40 of the Family Code provides that even if the marriage is void, the parties involved cannot take the law into their own hands and declare by themselves that the marriage is void. Under Article 40 of the Family Code, the party or parties should file a petition to have their marriage declared as void. If any party to a void marriage gets married again without complying with Article 40, he or she can be charged with bigamy.
What will be the status of Baby James? Parental authority and custody
If and when the marriage is declared void for lack of a valid marriage license, what will be the status of Baby James? This is an unclear legal issue at this point in time.
Article 54 of the Family Code states: “Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.”
Please take note that Kris’s petition, according to the news report, will not be for annulment of a voidable marriage or a declaration of nullity based on Article 36 (psychological incapacity). Her petition will be based on Article 4 or the absence of a formal requisite - the marriage license. Thus, Article 54 may possibly not apply to Baby James, that is, he may not be considered legitimate. We will have to wait for the court judgment on this issue.
If and when the marriage is declared void and Baby James is considered illegitimate, there is however a way he can become legitimate. Kris can file for adoption under RA 8552 “Domestic Adoption Act of 1998 and Baby James will become her legitimate child.
If Baby James is adopted by Kris, can he later on be adopted by his father James? Article 187 of the Family Code states that “a person who has been adopted can no longer be adopted unless such adoption has been revoked or rescinded.” However, the Family Code provisions on adoption (Articles 183 to 193) have been superseded by RA 8552; for one thing, rescission of adoption is no longer allowed. Based merely on Article 187, however, it would seem that James can no longer adopt Baby James if and when he has already been adopted by Kris.
A question of surnames
Please take note that if and when Kris’ petition for declaration of nullity is granted by the court, she will be able to use her maiden surname again. What about Baby James’ surname? Will it be changed to “Aquino” and no longer be “Yap”?
The court can possibly rule that based on the legal principle of “best interests of the child”, Baby James can continue using his father’s surname. But if the court rules in favor of Kris and orders the change of Baby James’ surname to “Aquino”, what can James do? Well, he can insist that Baby James continue using “Yap” in his birth certificate under RA 9255 and its Implementing Rules and Regulations. Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines”.
As you can read from that post, the Implementing Rules and Regulations of RA 9255 make it mandatory for the illegitimate child to use the father’s surname if (1) the father acknowledges the child in the birth certificate or (2) issues a public or private instrument acknowledging the child, even if the mother does not give her consent to the use of the father’s surname.
My stand is that the mother must give her consent before RA 9255 can be given effect. I have encouraged women who do not wish their children to use the father’s surname to file a petition nullifying the IRR of RA 9255. One good thing that can come out of this breakup between Kris and James is that Kris, with her financial capability to pay for lawyers, can file the necessary petition to nullify the IRR of RA 9255. If the guidelines are nullified, it will benefit not only Kris but a lot of women all over the Philippines.
Family Code provisions on custody
Lozano’s report cited Article 213 of the Family Code which provides that “no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Her report stated that according to the lawyers, Kris is willing to share custody with James. Not being a lawyer, Lozano may have misunderstood the lawyers’ statements; Article 213 of the Family Code will not apply to Kris, James and Baby James.
- During the course of the court hearings, custody will be shared by Kris and James based on their agreement or upon the court’s instruction. Please read my post “How do courts determine which parent has the right of custody of the children in legal separation, annulment or declaration of nullity?”
- If Baby James will be considered in the court judgment as illegitimate, however, parental authority (which includes custody) will belong exclusively to Kris under Article 176 of the Family Code. What James will have is visitation right. Please read my post “Visitation rights over illegitimate children”.
Lozano’s report also states that there is a question as to the separation of properties between Kris and Yap. She said that the lawyers did not reveal whether Kris and James had a pre-nuptial agreement. (Actually, the term used by the Family Code is “marriage settlement”.)
This is a very interesting legal issue. If the marriage was void from the beginning, did the pre-nuptial agreement (if they had any) have any legal effect at all? If it had no legal effect, should Article 147 of the Family Code be the governing provision in this matter? This article provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their property relation is governed by the rules of co-ownership. In simpler terms, the wages and salaries, and properties acquired by Kris and James during their relationship belong to their co-ownership. The first two paragraphs of Article 147 state:
When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.Note: Please read my post “Family Code of the Philippines: Primer on marriage”, the comments and my replies to the comments.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.