Family Code of the Philippines: Primer on marriage

Update as of April 25, 2018: “SC recognizes divorce in marriage with foreigners” (Rappler) The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners. Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.” “Republic of the Philippines v. Marelyn Tanedo Manalo” G.R. No. 221029. April 24, 2018 Based on a clear and plain reading of paragraph 2 of Article 26 (Family Code), the provision only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.” 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?

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Starting this week, I will be posting primers on the various provisions of the Family Code of the Philippines. For this week, the primer is on the basic provisions on marriage, specifically Articles 1 to 34. Please surf over to Title I, Articles 1 to 54 which comprise the complete provisions of the Family Code on marriage.

You may also want to review my previous articles on “covenant marriage” and “divorce and remarriage” from the Philippine legal standpoint. I discussed these articles with pastors and workers who attended the Baptist Mission Partners symposium last week.

How does the Family Code define “marriage”?

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Article 1)

What are the essential requisites that make a marriage valid?

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 2 provides that a marriage is valid if these essential requisites are present:

(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.

What are the formal requisites of marriage?

The formal requisites of marriage according to Article 3 are:

(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.

What is the effect if an essential or formal requisite is absent?

The absence of any of the essential or formal requisites renders the marriage void ab initio, except as stated in Article 35 (2).

What is the effect if any of the essential requisites is defective?

A defect in any of the essential requisites does not affect the validity of the marriage but the party or parties responsible for the irregularity will be civilly, criminally and administratively liable.

What is the age at which a man or woman can get married?

Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage.

(Note: Before the Family Code became effective in August 3, 1988, the minimum age for marriage under the New Civil Code of the Philippines was 16 for men and 14 for women.)

Is there any prescribed form for the marriage ceremony?

No prescribed form or religious rite for the solemnization of the marriage is required. It is necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration must be contained in the marriage certificate which must be signed by the contracting parties and their witnesses and attested by the solemnizing officer.

If a party cannot sign the marriage certificate, what can be done?

In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it is sufficient for one of the witnesses to the marriage to write the name of said party, which fact must be attested by the solemnizing officer.

Who are authorized to solemnize marriages?

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;

(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect;

(3) Any ship captain or airplane chief only in the case mentioned in Article 31;

(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32;

(5) Any consul-general, consul or vice-consul in the case provided in Article 10.

Note: The Local Government Code of 1991 restored to the mayors their authority to solemnize marriages

For Filipinos residing or traveling abroad and who want to get married, who can solemnize the marriage?

The consul-general, the consul, or vice-consul of the Republic of the Philippines can solemnize the marriage.

What can be done if upon applying for a marriage license, the parties cannot produce their birth certificates?

The presentation of birth or baptismal certificate is not required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of the parties, as stated in the application, or when the local civil registrar is, by merely looking at the applicants upon their personally appearing before him, convinced that either or both of them have the required age. (Last paragraph, Article 12)

What are the requirements of the Local Civil Registrar if either of the contracting parties was previously married?

The previously married applicant must furnish, instead of the birth or baptismal certificate, the death certificate of the deceased spouse, or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of the previous marriage.

In case the death certificate cannot be secured, the party must make an affidavit stating this circumstance, actual civil status, and the name and date of death of the deceased spouse. (Article 13)

What is the effectivity of the marriage license once issued?

The license is valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and it is automatically canceled at the expiration of the period if the contracting parties have not used it. The expiry date must be stamped in bold characters on the face of every license issued. (Article 20)

What are the requirements if a foreigner wants to get married here in the Philippines?

When either or both of the contracting parties are citizens of a foreign country, they must submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials, before a marriage license can be obtained.

Stateless persons or refugees from other countries must, instead of the certificate of legal capacity, submit an affidavit stating the circumstances showing their capacity to contract marriage. (Article 21)

What are the rules for marriages entered into by Filipinos in foreign countries?

All marriages solemnized outside the Philippines under the laws in force in the country where they were solemnized, and valid there as such, are also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is afterwards validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse has the capacity to remarry under Philippine law. (Article 26, as amended by Executive Order 227)

Under what circumstances will a marriage license no longer be required?

In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and will remain valid even if the ailing party subsequently survives. (Article 27)

If the residence of either party is so located that there is no means of transportation to enable the party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (Article 28)

Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (Article 33)

No license is necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties must state these facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer must also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. (Article 34; please read “Quickie marriages under Article 34 of the Family Code: Is the marriage void if the affidavit of marital cohabitation is false?”)

What are the rules for marriages performed by a ship captain or a pilot?

A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (Article 31)

What are the rules for marriages performed by a military commander?

A military commander of a unit, who is a commissioned officer, has the authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (Article 32)

Can I get married to my first cousin?

No, you cannot. You are related to your cousin by four civil degrees. Because of public policy, the Family Code prohibits marriage between persons related within the 4th degree of consanguinity (Article 38 of the Family Code).

Here’s how to count the number of degrees: From you to your father or mother, that is one degree. From your father or mother, to your grandparents, that is another civil degree. From your grandparents to your uncle or aunt, that is another degree. And from your uncle or aunt to your first cousin, is another degree, making a total of four degrees.

Primer on RA 7877 or the “Anti-Sexual Harassment Act of 1995”

What is the policy of the State with regards sexual harassment?

The State values the dignity of every individual, enhances the development of its human resources, guarantees full respect for human rights, and upholds the dignity of workers, employees, applicants for employment, students or those undergoing training, instruction or education. Towards this end, all forms of sexual harassment in the employment, education or training environment are declared unlawful. (Section 2)

How is sexual harassment defined in RA 7877?

Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act. (Section 3)

How is sexual harassment committed in a work-related or employment environment?

Sexual harassment is committed in this situation when:

1. The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;

2. The above acts would impair the employee's rights or privileges under existing labor laws; or

3. The above acts would result in an intimidating, hostile, or offensive environment for the employee.

How is sexual harassment committed in an education or training environment?

Sexual harassment, in this kind of environment is committed:

1. Against one who is under the care, custody or supervision of the offender;

2. Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;

3. When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or

4. When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.

Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this RA 7877.

What is the duty of the employer or head of office in a work-related, education or training environment?

It shall be the duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall:

(a) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor.

Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.

The said rules and regulations issued pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.

(b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment.

The employer or head of office, educational or training institution shall disseminate or post a copy of RA 7877 for the information of all concerned.

Who shall comprise the committee on decorum and investigation of cases on sexual harassment?

In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees.

In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, instructors, professors or coaches and students or trainees, as the case may be.

What is the liability of the employer, head of office, educational or training institution?

The employer or head of office, educational or training institution shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken.

Besides filing a case under RA 7877, can the victim also file other charges?

The victim of work, education or training-related sexual harassment can institute a separate and independent action for damages and other affirmative relief.

What are the penalties provided for under RA 7877?

Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than Ten thousand pesos (P10,000) nor more than Twenty thousand pesos (P20,000), or both such fine and imprisonment at the discretion of the court.

What is the prescriptive period for filing of cases of sexual harassment?

Any action arising from the violation of the provisions of RA 7877 shall prescribe in three years. (In layman’s terms, this means that an incident of sexual harassment must be filed with the fiscal’s office within three years after it occurred. Otherwise, it can no longer be prosecuted.)

Postscript: To know more about what sexual harassment is, please read the complete text of the Supreme Court decision in Mollaneda vs. Umacob [G.R. No. 140128. June 6, 2001] where the Department of Education Division Superintendent of Davao City was found guilty of the charge of sexual harassment.In the case of Biboso vs. Villanueva (A.M. No. MTJ-01-1356. April 16, 2001), the respondent, a judge from Sultan Kudarat, was found innocent of the charge of sexual harassment.

A primer on the Newborn Screening Act of 2004

A very positive, recent development in our laws is the promulgation into law of Republic Act 9288 or the Newborn Screening Act of 2004. You can find the complete text of RA 9288 in my “Family Matters” website. Below is a primer on this law.

What is Republic Act No. 9288?

It is the Philippine law promulgating a comprehensive policy and a national system for ensuring newborn screening. RA 9288 is known as the "Newborn Screening Act of 2004." It was approved on April 07, 2004.

What is the policy of the State with regards the health of the people, especially children?

It is the policy of the State to protect and promote the right to health of the people, including the rights of children to survival and full and healthy development as normal individuals.
In pursuit of such policy, the State through RA 9288 has institutionalized a national newborn screening system that is comprehensive, integrative and sustainable, and will facilitate collaboration among government and non-government agencies at the national and local levels, the private sector, families and communities, professional health organizations, academic institutions, and non-governmental organizations.

The National Newborn Screening System shall ensure that every baby born in the Philippines is offered the opportunity to undergo newborn screening and thus be spared from heritable conditions that can lead to mental retardation and death if undetected and untreated.

What are the objectives of the National Newborn Screening System?

1. To ensure that every newborn has access to newborn screening for certain heritable conditions that can result in mental retardation, serious health complications or death if left undetected and untreated;

2. To establish and integrate a sustainable newborn screening system within the public health delivery system;

3. To ensure that all health practitioners are aware of the advantages of newborn screening and of their respective responsibilities in offering newborns the opportunity to undergo newborn screening; and

4. To ensure that parents recognize their responsibility in promoting their child’s right to health and full development, within the context of responsible parenthood, by protecting their child from preventable causes of disability and death through newborn screening.

What is meant by Comprehensive Newborn Screening System?

It means a newborn screening system that includes, but is not limited to,

1. Education of relevant stakeholders; collection and biochemical screening of blood samples taken from newborns;

2. Tracking and confirmatory testing to ensure the accuracy of screening results; clinical evaluation and biochemical/medical confirmation of test results;

3. Drugs and medical/surgical management and dietary supplementation to address the heritable conditions; and

4. Evaluation activities to assess long term outcome, patient compliance and quality assurance.

What is meant by “follow-up” in the context of RA 9288?

Follow-up means the monitoring of a newborn with a heritable condition for the purpose of ensuring that the newborn patient complies fully with the medicine of dietary prescriptions.

What are included under the term “health institutions”?

The term includes hospitals, health infirmaries, health centers, lying-in centers or puericulture centers with obstetrical and pediatric services, whether public or private.

Who is considered as a “healthcare practitioner” under RA 9288?

The term means physicians, nurses, midwives, nursing aides and traditional birth attendants.

What is meant by “heritable condition”?

It means any condition that can result in mental retardation, physical deformity or death if left undetected and untreated and which is usually inherited from the genes of either or both biological parents of the newborn.

What is meant by “newborn?”

“Newborn” means a child from the time of complete delivery to 30 days old.

What is “newborn screening”?

It means the process of collecting a few drops of blood from the newborn onto an appropriate collection card and performing biochemical testing for determining if the newborn has a heritable condition.

What is a Newborn Screening Center?

It is a facility equipped with a newborn screening laboratory that complies with the standards established by the NIH and provides all required laboratory tests and recall/follow-up programs for newborns with heritable conditions.

What is the Newborn Screening Reference Center?

It is the central facility at the NIH that defines testing and follow-up protocols, maintains an external laboratory proficiency testing program, oversees the national testing database and case registries, assists in training activities in all aspects of the program, oversees content of educational materials and acts as the Secretariat of the Advisory Committee on Newborn Screening.

What is meant by “parent education?”

It refers to the various means of providing parents or legal guardians information about newborn screening.

What is meant by “recall”?

“Recall” means a procedure for locating a newborn with a possible heritable condition for purposes of providing the newborn with appropriate laboratory to confirm the diagnosis and, as appropriate, provide treatment.

What will treatment consist of a newborn is found to have a heritable condition?

Treatment means prompt, appropriate and adequate medicine, medical, and surgical management or dietary prescription to a newborn for purposes of treating or mitigating the adverse health consequences of the heritable condition.

What are the obligations of health practitioners under RA 9288?

Any health practitioner who delivers, or assists in the delivery, of a newborn in the Philippines shall, prior to delivery, inform the parents or legal guardian of the newborn of the availability, nature and benefits of newborn screening. Appropriate notification and education regarding this obligation shall be the responsibility of the Department of Health (DOH).

How is newborn screening performed?

Newborn screening shall be performed after twenty-four (24) hours of life but not later than three (3) days from complete delivery of the newborn. A newborn that must be placed in intensive care in order to ensure survival may be exempted from the 3-day requirement but must be tested by seven (7) days of age.

It shall be the joint responsibility of the parent(s) and the practitioner or other person delivering the newborn to ensure that newborn screening is performed. An appropriate informational brochure for parents to assist in fulfilling this responsibility shall be made available by the Department of Health and shall be distributed to all health institutions and made available to any health practitioner requesting it for appropriate distribution.

Can parents refuse to have their babies tested?

A parent or legal guardian may refuse testing on the grounds of religious beliefs, but shall acknowledge in writing their understanding that refusal for testing places their newborn at risk for undiagnosed heritable conditions. A copy of this refusal documentation shall be made part of the newborn’s medical record and refusal shall be indicated in the national newborn screening database.

What are the requirements of RA 9288 for health institutions?

The DOH and the Philippine Health Insurance Corporation (PHIC) shall require health institutions to provide newborn screening services as a condition for licensure or accreditation.

What are the procedures or requirements in the establishment and accreditation of Newborn Screening Centers?

The DOH shall ensure that Newborn Screening Centers are strategically located in order to be accessible to the relevant public and provide services that comply with the standards approved by the Committee upon the recommendation of the NIH. No Newborn Screening Center shall be allowed to operate unless it has been duly accredited by the DOH based on the standards set forth by the Committee.

At a minimum, every Newborn Screening Center shall: (i) have a certified laboratory performing all tests included in the newborn screening program, (ii) have a recall/follow up programs for infants found positive for any and all of the heritable conditions; (iii) be supervised and staffed by trained personnel who have been duly qualified by the NIH; and (iv) submit to periodic announced or unannounced inspections by the Reference Center in order to evaluate and ensure quality Newborn Screening Center performance.

What is the Newborn Screening Reference Center and what is its function?

The NIH shall establish a Newborn Screening Reference Center, which shall be responsible for the national testing database and case registries, training, technical assistance and continuing education for laboratory staff in all Newborn Screening Centers.

The NIH Newborn Screening Reference Center shall be responsible for drafting and ensuring good laboratory practice standards for newborn screening centers, including establishing an external laboratory proficiency testing and certification program. It shall also act as the principal repository of technical information relating to newborn screening standards and practices, and shall provide technical assistance to newborn screening centers needing such assistance.

What is required of all Newborn Screening Centers?

They must coordinate with the NIH Newborn Screening Reference Center for consolidation of patient databases. The NIH Newborn Screening Reference Center shall maintain a national database of patients tested and a registry for each condition. It shall submit reports annually to the Committee and to the DOH on the status of and relevant health information derived from the database.

Who will shoulder the newborn screening fees?

The PHIC shall include cost of newborn screening in its benefits package. The newborn screening fee shall be applied to, among others, testing costs, education, sample transport, follow-up and reasonable overhead expenses.

A primer on RA 8972 or the Solo Parents’ Welfare Act of 2000

Update as of August 13, 2010:Senator Loren Legarda filed SB No. 1439 entitled “Solo Parents Welfare Act of 2010.” The bill seeks to amend RA 8972 and to provide the following support and benefits for solo parents: 1. Ten percent discount from all purchases of clothing and clothing materials for the child from birth up to two years; 2. Fifteen discount from all purchases of baby’s milk, food and food supplements; 3. Fifteen percent discount from all purchases of medicines and other medical supplements/supplies for the child; and 4. Basic personal exemption from individual income tax.

Last March 19, I gave a 3-hour legal seminar for the single parents group of a PCEC-affiliated church in Quezon City. Known as the Single Parents For Christ (SPARC), the group is composed of some 20 to 30 women who are single parents for various reasons - widowhood, separation from their husbands, grandparents left to take care of grandkids as the parents are working abroad, etc.

We had a fruitful afternoon discussing the essential provisions of the Family Code of the Philippines, RA 9262 or the Anti-Violence Against Women and their Children Act of 2004, and RA 8972 or the Solo Parents’ Welfare Act of 2000. If you’d like to know more about this group of dear ladies, please surf to their website.

While browsing at the new OMF Lit bookstore in Boni Avenue in Mandaluyong, I saw a book entitled, if I remember correctly, “On Single Parenting” published by Zondervan, priced at around two hundred eighty pesos. Once I get a copy of the book, I will do a review on it in my Salt and Light blog. (You might also be interested in the video “Si Nanay Ay Si Tatay” available at House of Praise outlets.) Anyway, for now, I have below a primer on our country’s solo parents’ law.

What is our country’s law for single parents?

Republic Act No. 8972 or the “Solo Parents' Welfare Act of 2000” is the Philippine law on single parents. It was promulgated on November 7, 2000.

What is the policy of the State regarding solo parents?

It is the policy of the State to promote the family as the foundation of the nation, strengthen its solidarity and ensure its total development. Towards this end, it will develop a comprehensive program of services for solo parents and their children to be carried out by the Department of Social Welfare and Development (DSWD), the Department of Health (DOH), the Department of Education, Culture and Sports (DECS), the Department of the Interior and Local Government (DILG), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the National Housing Authority (NHA), the Department of Labor and Employment (DOLE) and other related government and non-government agencies. (Sec.2, RA 8972)

Who is considered under the law as a “solo parent”?

Any individual who falls under any of the following categories is considered as a single parent:

1. A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child;

2. Parent left solo or alone with the responsibility of parenthood due to death of spouse;

3. Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least one year;

4. Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner;

5. Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto separation from spouse for at least one year, as long as he/she is entrusted with the custody of the children;

6. Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as he or she is entrusted with the custody of the children;

7.Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at least one year;

8. Unmarried mother or father who has preferred to keep and rear the child or children instead of having others care for them or give them up to a welfare institution;

9. Any other person who solely provides parental care and support to a child or children;

10. Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent.

A change in the status or circumstance of the parent claiming benefits under this Act, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits.

Who are considered as “children” under RA 8972?

The term “children” refers to those living with and dependent upon the solo parent for support who are unmarried, unemployed and not more than eighteen years of age, or even over eighteen years but are incapable of self-support because of mental or physical disability.

What is “parental responsibility”?

The term “parental responsibility” with respect to their minor children refers to the rights and duties of the parents as defined in Article 220 of the Family Code of the Philippines.”

What are the criteria for support under RA 8972?

1. Any solo parent whose income in the place of domicile falls below the poverty threshold as set by the National Economic and Development Authority (NEDA) and subject to the assessment of the DSWD worker in the area is eligible for assistance;

2. That any solo parent whose income is above the poverty threshold can enjoy the benefits mentioned in Sections 6, 7 and 8 of RA 8972.

What are government agencies required to provide under RA 8972?

A comprehensive package of social development and welfare services for solo parents and their families will be developed by the DSWD, DOH, DECS, CHED, TESDA, DOLE, NHA and DILG, in coordination with local government units and a nongovernmental organization with proven track record in providing services for solo parents.

The DSWD must coordinate with concerned agencies the implementation of the comprehensive package of social development and welfare services for solo parents and their families.

What are included in this package of services for single parents?

The package of services will initially include:

(a) Livelihood development services which include trainings on livelihood skills, basic business management, value orientation and the provision of seed capital or job placement.

(b) Counseling services which include individual, peer group or family counseling. This will focus on the resolution of personal relationship and role conflicts.

(c) Parent effectiveness services which include the provision and expansion of knowledge and skills of the solo parent on early childhood development, behavior management, health care, rights and duties of parents and children.

(d) Critical incidence stress debriefing which includes preventive stress management strategy designed to assist solo parents in coping with crisis situations and cases of abuse.

(e) Special projects for individuals in need of protection which include temporary shelter, counseling, legal assistance, medical care, self-concept or ego-building, crisis management and spiritual enrichment.

What is “flexible work schedule”?

It is the right granted to a solo parent employee to vary arrival and departure time without affecting the core work hours as defined by the employer. Under Section 6 of RA 8972, the employer must provide for a flexible working schedule for solo parents: But the flexible work schedule should not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on meritorious grounds.

What about the issue of work discrimination, in terms of job assignments or promotion?

Section 7 of RA 8972 provides that employers must not discriminate against solo parents with respect to terms and conditions of their employment.

What is the so-called single parent leave?

Section 8 of Republic Act No. 8972 states that “in addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year.” Please take note of the phrase “in addition to leave privileges under existing laws.”

What if there are already benefits under company policies or provisions of the CBA? Can the parental leave still be availed of?

The Implementing Rules and Regulations of RA 8972 (take note specially of Section 21) state:

Section 18. Parental Leave – In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year. The seven-day parental leave shall be non-cumulative.

Section 19. Conditions for Entitlement of Parental Leave – A solo parent shall be entitled to parental leave provided that:

(a) He/She has rendered at least one (1) year of service whether continuous or broken at the time of the effectivity of the Act;

(b) He/She has notified his/her employer of the availment thereof within a reasonable time period; and

(c) He/She has presented a Solo Parent Identification Card to his/her employer.

Section 20. Non-conversion of Parental Leave – In the event that the parental leave is not availed of, said leave shall not be convertible to cash unless specifically agreed upon previously. However, if said leave were denied an employee as a result of non-compliance with the provisions of these Rules by an employer, the aforementioned leave may be used a basis for the computation of damages.

Section 21. Crediting of Existing Leave – If there is an existing or similar benefit under a company policy, or a collective bargaining agreement or collective negotiation agreement the same shall be credited as such. If the same is greater than the seven (7) days provided for in the Act, the greater benefit shall prevail.

If the company already gives leave benefits or there are applicable provisions in the CBA, the question that should be resolved is: Are the benefits similar to or greater than the parental leave under RA 8972? If not, then these benefits under company policies or CBA provisions cannot be credited under Section 21.

Companies, in seeking ways to save on costs and expenses, sometimes refuse to grant the solo parent leave. They claim that that there are existing or benefits similar to the solo parent leave under company policies. If you are a solo parent working for a company that refuses to grant the solo parent leave by claiming that Section 21 of the IRR applies, then you should seek the help of the Public Assistance and Complaints Unit of the DOLE. The PACU will help you file a complaint and then call you and your employer to a mediation/conciliation conference. If nothing comes out of the conciliation, the PACU will endorse your complaint to the National Labor Relations Commission.

A common problem of single parents is providing educational opportunities for their children. Does RA 8972 have provision on this issue?

The DECS, CHED and TESDA are mandated to provide the following benefits and privileges:

(1) Scholarship programs for qualified solo parents and their children in institutions of basic, tertiary and technical/skills education; and

(2) Nonformal education programs appropriate for solo parents and their children.

Another problem of single parents is housing. What benefits if any are provided under RA 8972?

Solo parents shall be given allocation in housing projects and shall be provided with liberal terms of payment on said government low-cost housing projects in accordance with housing law provisions prioritizing applicants below the poverty line as declared by the NEDA.

What about medical assistance?

The DOH shall develop a comprehensive health care program for solo parents and their children. The program shall be implemented by the DOH through their retained hospitals and medical centers and the local government units (LGUs) through their provincial/district/city/municipal hospitals and rural health units (RHUs).

How do I avail of the benefits under RA 8972?

You can communicate with the DSWD office of your town or city as to the requirements.

Postscript: As you can see from the above, the package of benefits for single parents is quite slim. Perhaps, our enlightened legislators will see the need to increase the assistance to single parents. One idea the SPARC ladies came up with is the “Single Parents ID” just like that of the senior citizens, with all of the corresponding benefits.

Mediation not applicable to domestic violence cases, with apologies to Pia Guanio

Update: Supreme Court rules that RA 9262 cases cannot be mediated The non-referral of a VAWC (violence against women and children) case to a mediator is justified. Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of violence implies that the victim is somehow at fault. Garcia vs. Drilon, G.R. No. 179267, June 25, 2013

Several days ago, I was watching Channel 7’s “24 Oras” early evening news program when Pia Guanio, the entertainment segment host, reported an item about Hollywood actor Lou Diamond Phillips. As reported, Phillips was arrested by Los Angeles police for verbally and physically abusing his live-in girlfriend. Phillips, who’s got Filipino ancestry, was released by the police several hours later on his own recognizance.

What got my attention was Pia’s last statement in her news report. I stand to be corrected but I heard Pia say, “Pansamantalang pinakawalan si Phillips upang masubukan niya at ng kanyang ka-live in ang meditation.” In English, that translates into, “Phillips was released by the police so that he and his live-in partner can try meditation.”

Either Pia Guanio (a beautiful and smart woman desperately in need of a fashion make-over) misread the teleprompter, or the news editors of Channel 7 were really at fault. You see, the word Pia should have used instead of MEDITATION was MEDIATION. For a brief moment, I had visions of Lou Diamond Phillips and his live-in partner doing some Transcendental Meditation in order to solve their relationship problems. Om! Om! Sorry, Pia!

Levity aside, I have written several articles on RA 9262, our country’s landmark law on violence against women. If you’d like to review these articles, here are the links:

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
Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study
The “Battered Woman Syndrome” as defense

What is mediation?

Mediation is a method of “Alternative Dispute Resolution” and under the Supreme Court guidelines, it is mandatory for all civil cases and some criminal offenses (like BP 22 or bouncing checks). The court orders the litigants to undergo mediation proceedings before a Supreme Court-trained mediator, for a period of 30 days. Mediation is informal and the mediator tries to get the parties to settle the case amicably, on a win-win scenario for all the parties involved. If the mediation fails, then the case is referred back to court for continuation of trial. But experience has shown that mediation works well with a high percentage of cases amicably settled.

Labor dispute cases in the National Labor Relations Commission (NLRC) now also undergo mandatory conciliation/mediation proceedings. Of course, most of you are familiar with the mediation proceedings at the barangay level, as provided for by the Local Government Code of 1991.

RA 9262 cases expressly exempted from mediation (by barangay officials, police officers, social workers, and judges)

It appears from Pia’s report and the Internet resources I checked that California and some other places in the USA allow mediation proceedings even in domestic violence cases. But, here in the Philippines, RA 9262, its Implementing Rules and Regulations and the Supreme Court Rule for RA 9262, all prohibit mediation of cases involving violence against women. You might ask, if mediation has been proven to work well, then why is it prohibited in RA 9262 cases?

The Supreme Court, quoting the Commentary on Section 311 of the Model Code on Domestic and Family Violence, gives us the reason why:

Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of violence implies that the victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is problematic because the petitioner is frequently unable to participate equally with the person against whom the protection order has been sought.

Alison E. Gerencser, in an article entitled “Family Mediation: Screening for Domestic Abuse” (Florida State University Law Review), argues forcefully that domestic violence cases should be exempted from mediation proceedings. While written in the context of American society and a bit dated since it was written in 1995, it is a very informative article. Among other things, Gerencser cites studies that show women have only suffered more abuse after mediation sessions than after trials.

Anyway, here are the specific provisions that prohibit mediation or conciliation of domestic violence cases:

RA 9262

Sec. 33. Prohibited Acts. – A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence he applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under this Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under this Act.

Failure to comply with this Section shall render the official or judge administratively liable.

Implementing Rules and Regulations of RA 9262

Section 27. Prohibited Acts – A Punong Barangay, Barangay Kagawad, or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence the applicant to compromise or abandon any of the reliefs sought in the application for protection order under the Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under the Act.

Failure to comply with this Section shall render the official or judge administratively liable.

Law enforcers and other government personnel shall not mediate or conciliate or influence the victim-survivor or applicant for a protection order to compromise or abandon the relief sought.

Section 47, paragraph (o): Shall not attempt to influence the victim-survivor to abandon her claims. All forms of amicable settlement under the Katarungang Pambarangay such as mediation, settlement, conciliation, arbitration shall not apply to cases of VAWC in the Act xxx

Supreme Court Rule

Sec. 23. Preliminary conference.—
(a) When conducted.—A preliminary conference, which is mandatory, shall be held on the date indicated in the notice.
(b) Notice.—The notice shall be served the parties, including the offended party, who shall be required to notify their respective counsels, if any. The parties shall appear in person at the preliminary conference and submit their position papers setting forth the law and the facts relied upon by them.
(c) Nature and purpose.—The court shall consider:
(1) The propriety of issuing a protection order. The court shall not deny the issuance of a protection order due to the lapse of time between the act of violence and the filing of the petition, subject to Section 24, R.A. No. 9262. The issuance of a barangay protection order or the pendency of an application for a barangay protection order shall not preclude a petitioner from applying for, or the court from granting, a protection order;
(2) The simplification of the issues; and
(3) Such other matters as may aid in the prompt disposition of the petition.

The court shall not refer the case or any issue thereof to a mediator.

Perhaps, as judges, lawyers, social workers, police officers and religious ministers gain more knowledge and experience in handling domestic violence cases, at some stage of the proceedings, some form of mediation or conciliation could possibly be availed of to end the violence, mend the marriage and bring unity back to the family. Let’s all MEDITATE on that.

The Amy Perez case: Psychological incapacity as a ground for declaring a marriage null and void

Summary: 1. The Supreme Court denied actress Amy Perez’s petition to have her marriage to musician Brix Ferraris declared void on the basis of psychological incapacity. 2. Amy’s expert witness, a psychologist, failed to prove that Brix was suffering from a psychological incapacity that rendered him unable to fulfill the essential marital obligations. 3. “The term ‘psychological incapacity’ as used in Article 36 of the Family Code refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive a person of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.” 4. “A mere showing of irreconcilable differences and conflicting personalities in no wise constitute psychological incapacity; it is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so due to some psychological, not physical, illness.” 5. “Habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity.”

More than a week ago, our early evening news cum entertainment shows on Channels 2 and 7 reported that the Supreme Court in its July 17, 2006 Resolution turned down with finality actress Amy Perez’s petition to have her marriage to musician Brix Ferraris declared void on the basis of psychological incapacity.

Reasons why the Supreme Court turned down Amy’s petition

1. The Supreme Court found Brix’s alleged mixed personality disorder, the "leaving-the-house" attitude whenever he and Amy quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage.

2. While Amy’s marriage with Brix failed and appears to be without hope of reconciliation, the remedy however is not always to have it declared void ab initio on the ground of psychological incapacity. An unsatisfactory marriage, however, is not a null and void marriage. No less than the Constitution recognizes the sanctity of marriage and the unity of the family; it decrees marriage as legally “inviolable” and protects it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the State.

If other movie stars had their marriage successfully declared void, what happened in Amy’s petition?

Pops Fernandez and Martin Nievera, Aiko Melendez and Jomari Yllana, Benjie Paras and Jackie Forster (?), Alma Moreno and Joey Marquez … these are just some of our entertainment personalities who had their marriages successfully declared void on the basis of “psychological incapacity” as provided for by Article 36 of our Family Code. So what happened to their fellow entertainer Amy Perez’s petition?

1. Difference between “annulment” and “declaration of nullity”

The term “annulment” refers to voidable marriages while “declaration of nullity” refers to marriages that are void. When Article 36 (psychological incapacity) is used as the ground, the proper term is “declaration of nullity” and not “annulment.”

2. The long road that Amy’s petition went through

You can read the complete decision of Amy Perez’s case in the Supreme Court website. By way of review, however, let’s look at the long road Amy’s case went through before it finally reached the Supreme Court.

(1) According to the Court of Appeals narration of facts, Amy and Brix’s relationship before the marriage and even during their brief union (for well about a year or so) was not all bad. During that relatively short period of time, Amy was happy and contented with her life in the company of her husband. In fact, by Amy’s own reckoning, Brix was a responsible and loving husband. Then problems began when Amy started doubting Brix’s fidelity. It was only when they started fighting about the calls from women that Brix began to withdraw into his shell and corner, and failed to perform his so-called marital obligations. Brix could not understand Amy’s lack of trust in him and her constant naggings. He thought her suspicions irrational. Brix could not relate to her anger, temper and jealousy. Amy then filed a petition to have her marriage declared null and void on the basis of Brix’s psychological incapacity.

(2) Sometime in February 2001, the Pasig City Regional Trial Court Branch 151, with presiding Judge Franchito N. Diamante, denied Amy’s petition on the ground that “suffering from epilepsy did not amount to psychological incapacity under Article 36 of the Family Code and that the evidence on record were insufficient to prove infidelity.”

(3) The Pasig RTC denied Amy’s motion for reconsideration on or about April 2001.

(4) Amy filed an appeal with the Court of Appeals which eventually confirmed in whole the judgment of the Pasig City RTC.

(5) The Court of Appeals later on also denied Amy’s motion for reconsideration.

(6) Amy filed a Petition for Review of the CA’s decision with the Supreme Court, which on June 2004 denied the petition.

(7) The Supreme Court in its Resolution dated July 17, 2006 denied with finality Amy’s petition.

3.Amy’s psychologist failed to prove psychological incapacity

The adverse decisions of the Pasig City RTC and the Court of Appeals relied heavily on the failure of Amy’s expert witness (a psychologist) to establish that Brix Ferraris was suffering from a psychological incapacity that rendered him unable to fulfill the essential marital obligations.

The Supreme Court promulgated in March 2003 the new implementing guidelines for declaring a marriage null and void. The said guidelines no longer require the submission of a psychological report as part of the petition to be filed with the trial court. It depends upon the discretion of the Family Court judge as to whether a psychological report still has to be submitted. Lawyers, however, wanting to make sure the petition will be granted, are still asking their clients to submit to psychological evaluation and are submitting the report as part of their evidence.

The Supreme Court ruling in Amy’s petition

Enumerated below (without the citations, with some long sections broken down into several paragraphs for easier reading, and boldfacing for emphasis supplied) are the pertinent portions of the Supreme Court’s Resolution discussing what psychological incapacity is and is not.

1. The term “psychological incapacity” under Article 36 of the Family Code refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.
As all people may have certain quirks and idiosyncrasies, or isolated characteristics associated with certain personality disorders, there is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. It is for this reason that the Court relies heavily on psychological experts for its understanding of the human personality. However, the root cause must be identified as a psychological illness and its incapacitating nature must be fully explained which petitioner failed to convincingly demonstrate.

2. The Court found Brix’s alleged mixed personality disorder, the "leaving-the-house" attitude whenever he and Amy quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage.

3. In Republic v. Court of Appeals, where the respondent preferred to spend more time with his friends than his family on whom he squandered his money, depended on his parents for aid and assistance, and was dishonest to his wife regarding his finances, the Court held that the “psychological defects” spoken of were more of a “difficulty,” if not outright “refusal” or “neglect” in the performance of some marital obligations.

A mere showing of irreconcilable differences and conflicting personalities in no wise constitute psychological incapacity; it is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so due to some psychological, not physical, illness.

4. The Court held in Hernandez v. Court of Appeals that habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity.

5, While Amy’s marriage with Brix failed and appears to be without hope of reconciliation, the remedy however is not always to have it declared void ab initio on the ground of psychological incapacity. An unsatisfactory marriage, however, is not a null and void marriage. No less than the Constitution recognizes the sanctity of marriage and the unity of the family; it decrees marriage as legally “inviolable” and protects it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the State.

6. In determining the import of “psychological incapacity” under Article 36, it must be read in conjunction with, although to be taken as distinct from Articles 35 (marriages void from the beginning), 37 (incestuous marriages), 38 (marriages void due to public policy) and 41 (declaration of presumptive death), which for different reasons render the marriage void ab initio.

Article 36 must also be read in conjunction with but taken as distinct from Articles 45 (voidable marriages) and 55 (grounds for legal separation).

Care must be observed so that these various circumstances are not applied so indiscriminately as if the law were indifferent on the matter. Article 36 should not be confused with a divorce law that cuts a matrimonial bond at the time the causes therefore manifest themselves. Neither it is to be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like.

What happens now to Amy Perez and Brix Ferraris?

Since the Court has declared Brix Ferraris is not suffering from any psychological incapacity in fulfilling his essential marital obligations, Amy and Brix remain married to each other, despite presumably the total absence of love and affection between them. The facts and the conclusions of the Court have become what lawyers call "res judicata" between Amy and Brix. It is highly doubtful therefore that Amy or Brix himself could avail of the new relaxed rule on annulment of marriages promulgated by the Supreme Court in March 2003 in re-filing the case.

Again, as I have noted above, under the new Rule, the submission of a psychological report is no longer mandatory but is discretionary with the Family Court judge. However, lawyers are still asking petitioners to submit to psychological evaluation and are submitting the report as part of their evidence.

The Estrada vs. Escritor case: Did the Supreme Court legitimize live-in relationships?

Two weeks ago, various newspapers reported the Supreme Court’s 9-5 decision in the Estrada vs. Escritor case, a landmark decision involving the Constitutional freedom of religion. The Court (even in its in interim resolution last August 2003) ruled that Escritor, a court interpreter at the Las Pińas Regional Trial Court Branch 253, could not be dismissed from the government service for “disgraceful and immoral conduct” on the basis of a valid exercise of her freedom of religion.

Admittedly, Escritor was living in with Luciano Quilapio Jr (also married to another person) without the benefit of marriage. But her church (the Jehovah’s Witnesses) had recognized her relationship and allowed them to have marital relations, since her legal husband had abandoned her. In a JW church document known as “Declaration of Pledging Faithfulness” entered into by Escritor and Quilapio, they bound themselves to have their union legally recognized should the opportunity arise.

Moreover, as investigation by the Office of the Court Administrator showed, such a practice of the JW had extensive theological underpinnings and was a long time, widely held practice. It was not simply a device or scheme that Escritor resorted to in order to evade administrative liability.

The JW, in the defense of its doctrines and practices, has had a long history of butting heads with the State. In 1956, for example, the Supreme Court ruled against the JW in the Gerona case, where JW members enrolled in public schools were not granted exemption from attending flag ceremonies and singing the national anthem. Yet the JW persisted in challenging this ruling. Finally, after 39 long years, in 1995, the Supreme Court in the case of Ebralinag vs. Division Superintendent of Cebu, recognized the right of the JW members not to participate in the flag ceremonies and in the singing of the national anthem.

Please also take note that being a Baptist, I do not subscribe to the JW teachings and practices; I hope only to clarify what the Supreme Court’s ruling is in the Escritor case.

Flawed understanding of the Escritor ruling in media reports

The problem is, some newspaper reporters and editors have misunderstood the SC ruling. For example, one headline in a business newspaper stated, “SC ruling favors live-in setup if church-blessed.” The lead went on to say, “The Supreme Court virtually gave its blessing to living-in couples when it issued a landmark decision declaring that they cannot be punished for having such an arrangement if it does not clash with their religious beliefs.”

"Repercussions" of the Supreme Court ruling

Some people I have talked to (and who have read the skewed news reports) are disgusted with the SC ruling, saying that it’s another assault on the institution of marriage, encouraging people to simply live in without the benefit of marriage, in the name of religious freedom. (In a previous post, I mentioned a DSWD finding that 40% of couples in the CALABARZON area are merely living in.) They say that now, various religious groups will come up with doctrines, documents and practices similar to the JW’s “Declaration of Pledging Faithfulness” in order to accommodate their own members. One pastor (from the Visayas region) I talked to last year, mentioned the difficulty of one couple in his church. They are new converts, living in together as husband and wife, but could not have their previous marriages annulled because of the prohibitive legal expenses. The pastor mentioned that he has been thinking of just conducting an “ecclesiastical marriage” so that this couple and the church could say that in the eyes of God, they are husband and wife, even though legally, they are married to other persons.

Justice Consuelo Ynares-Santiago, who voted against the majority ruling, states in her dissenting opinion (see below) the possible repercussion that each church or religion could become a republic unto itself.

Setting the record straight on the Escritor ruling

The legal expert on GMA-7’s early morning show “Unang Hirit” about a week ago has explained quite clearly what this SC decision is all about. (My congratulations to her for such a clear explanation despite the very limited time allotted to her. I was riding on a G-Liner bus equipped with a TV set, on my way from Pasig/Ortigas to the NLRC in Quezon City when her portion came on. Atty. Roldan, I think her name is, used to do the late night news for RPN-9, if I'm not mistaken.) She clarified that:

1. As a general rule, people in live-in relationships and whose marriages to other parties have not been annulled or declared null and void, can and will be held criminally liable for adultery, concubinage, marital infidelity, etc. under the Revised Penal Code and other special laws like RA 9262.

2. If these people in live-in relationships are in the government service, then they can be charged administratively under the Administrative Code of 1987.

3. The Escritor doctrine established not a general rule but an exception to the general rule on the basis of a valid exercise of the Constitutional freedom of religion. As the Supreme Court clarified, “It does not mean that the Court would grant exemptions everytime a free exercise of religion comes before it.”

Restricted application of the Supreme Court’s ruling

As the Supreme Court in the dispositive (concluding) portion of its June 2006 decision stated,

Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite. (emphasis by boldfacing supplied)

A word of caution to other live-in couples and to other religions

Thus, any pastor, church or members of a religious sect who might draw some unfounded conclusions and consequently act according to the way some media outlets have reported the Escritor case, should be forewarned. Any pastor who obtains a license from the State to solemnize marriages is bound by the laws of the Philippines. If he solemnizes a marriage without observing the legal requirements, he could be charged criminally with violation of the Revised Penal Code in performing an illegal marriage. If he claims freedom of religion and the Escritor ruling as his defense, he’d better make sure that his case has similar antecedents (background) as that of the Escritor case. As lawyers are fond of saying, his case must be “on all fours” with the Escritor case.

I strongly recommend that pastors, Bible students and church members read the complete text of the Supreme Court’s interim decision in August 2003 and its final decision released this June 2006. The decision is a difficult read even for law students but the time and effort are well worth it.

But from my own perspective, and without going into the merits or the intricacies of the Escritor ruling, I would always be in favor of the “least interference” or “no excessive entanglement with religion” by the State. This is the so-called “Lemon Test” in American jurisprudence. In the Escritor case, the Supreme Court used the “compelling state interest” test from a benevolent neutrality stance. That is, the Court entertained the possibility that Escritor’s claim to religious freedom could warrant carving out an exception to the Civil Service law, unless the government succeed in demonstrating a more compelling state interest.

The “compelling state interest test from a benevolent neutrality stance”

In its 2003 interim decision, the Supreme Court explained how the “compelling state interest test from a benevolent neutrality stance” was to be applied:

In applying the test, the first inquiry is whether respondent’s right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. xxx

The second step is to ascertain respondent’s sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the “Declaration of Pledging Faithfulness” to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovah’s Witnesses’ practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the “union” of their members under respondent’s circumstances “honorable before God and men.” xxx Respondent’s request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah’s Witnesses’ beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah’s Witnesses and the Jehovah ministers testified that she is a member in good standing.

In its 2003 decision, the Supreme Court remanded the case to the Office of the Court Administrator. The Solicitor General was ordered to intervene in the case and be given the opportunity (a) to examine the sincerity and centrality of Escritor’s claimed religious belief and practice; (b) to present evidence on the state’s “compelling interest” to override Escritor’s religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to Escritor’s religious freedom.

Well, as things turned out from 2003, the OSG failed to prove, in the minds of the nine justices who voted in favor of the Escritor ruling, any compelling interest of the State that could have overridden Escritor’s exercise of her religion.

Dissenting opinions in the Escritor case; Muslims’ exemption from prosecution for bigamy

Supreme Court Justice Antonio Carpio, voting against the majority in the Escritor case, explained in his dissenting opinion that:

“The majority opinion will make every religion a separate republic, making religion a haven for criminal conduct that otherwise would be punishable under the law of the land. Today concubinage, tomorrow bigamy, will enjoy protection from criminal sanction under the new doctrine foisted by the majority opinion.”

Associate Justice Consuelo Ynares-Santiago, in her separate dissenting opinion, stated that Escritor should have been declared guilty of immorality and disgraceful conduct and subsequently suspended for six months without pay. Justice Santiago stated in her opinion,

“The Court cannot be the instrument by which one group of people is exempted from the effects of these laws just because they belong to a particular religion. Moreover, it is the sworn mandate of the Court to supervise the conduct of an employee of the judiciary, and it must do so with an even hand regardless of her religious affiliation.”

I have read the 2003 interim decision of the Supreme Court in the Escritor case and there it was mentioned that under Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, Muslims have been expressly exempted from the operation of bigamy laws of the Philippines. This provision of law has never been challenged in terms of violation of the “establishment of religion clause” of the 1987 Constitution. In the light of the Escritor ruling however, if and when such a case is brought before the Supreme Court, my guess is that the said provision of law will be declared as constitutional.

Unless, in view of the vigorous dissent by the five justices who voted against the Escritor ruling (namely, Justices Carpio, Consuelo Ynares- Santiago, Romeo Callejo, Conchita Carpio Morales and Chief Justice Artemio Panganiban), the Ecritor ruling could later on be overturned. Is this possible? Well, from the introductory portion of the interim 2003 decision as quoted below, from Justice Puno’s ponencia, the issue of freedom of religion has had a long and convoluted history. Anything is possible.

Anyway, here’s the introductory part of Justice Puno’s compellingly-written ponencia in the 2003 interim decision in the Escritor case:

"The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the state’s interest and the respondent’s religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses. The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is “considerable internal inconsistency in the opinions of the Court.” As stated by a professor of law, “(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty.” Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the “constitution commands the positive protection by government of religious freedom - not only for a minority, however small - not only for a majority, however large - but for each of us.”

Liberty and authority; freedom and responsibility; law and grace … this reminds me of that famous chapter (“The Grand Inquisitor”) in Fyodor Dostoyevski’s novel “The Brothers Karamazov.” But that’s for another post …

Again, I strongly recommend that pastors, Bible students and church members read the complete text of the Supreme Court’s interim decision in August 2003 and its final June 2006 decision.

Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study

How should individual Christians, pastors and churches respond to the issue of spousal abuse? For the answers to this vital question, please surf over to my Salt and Light blog.

I have also written several other articles about spousal abuse, domestic violence, etc. Please take time to read the following:

• 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
• The "Battered Woman Syndrome" as defense
• Mediation not applicable to domestic violence cases

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

RA 9262 penalizes psychological violence as defined in Section 3 thereof. For a discussion of what psychological violence or emotional abuse is all about, please surf over to my Salt and Light blog.


Note: I have also written several other articles about spousal abuse, domestic violence, etc. Please take time to read the following:

• 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 (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study
• The “Battered Woman Syndrome” as defense
• Mediation not applicable to domestic violence cases

Hope and help for the battered woman (3): Protection Orders under RA 9262 "Anti-Violence Against Women and their Children Act of 2004"

Related posts: Hope and help for the battered woman (2): ntial provisions of RA 9262 Hope and help for the battered woman (4): Emotional abuse or psychological violence Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study The “Battered Woman Syndrome” as defense Mediation not applicable to domestic violence cases Update: Supreme Court upholds Constitutionality of protection orders under  RA 9262 (Garcia vs. Drilon, G.R. No. 179267, June 25, 2013) The grant of a TPO (Temporary Protection Order) without a hearing does not violate the Constitutional right to due process. RA 9262 does not unduly delegate judicial power to barangay officials. The BPO (Barangay Protection Order) is purely executive in nature in keeping with the barangay captain’s duty under the Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in the barangay.”

The provisions of RA 9262 on protection orders are discussed below in question and answer format.

What is a protection order?

Section 8 of RA 9262 defines “protection order” as an order issued for the purpose of preventing further acts of violence against a woman or her children specified in Section 5 and granting other necessary relief.

The provisions of the protection orders must be enforced by law enforcement agencies.

What are the different kinds of protection orders under RA 9262?

The three kinds of protection orders under RA 9262 are:

BPO (Barangay Protection Order);

TPO (Temporary Protection Order) issued by the court; and

PPO (Permanent Protection Order) issued by the court.

What court has jurisdiction over RA 9262 cases?

The Regional Trial Court designated as a Family Court has original and exclusive jurisdiction over cases of violence against women and their children.

In the absence of a Family Court in the place where the offense was committed, the case can be filed in the Regional Trial Court where the crime or any of its elements was committed, at the option of the complainant.

What are the purposes of a protection order?

The reliefs granted under a protection order are for:

1. safeguarding the victim from further harm,

2. minimizing any disruption in the victim’s daily life, and

3. providing the opportunity and ability of the victim to independently regain control over her life.

What are the reliefs or remedies under a protection order?

The protection orders that may be issued under Section 8 of RA 9262 include any, some, or all of the following reliefs:

[a] Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

[b] Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly;

[c] Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose or protecting the petitioner, or permanently where no property rights are violated, and if respondents must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence;

[d] Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member;

[e] Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner’s or respondent’s removal of personal belongings;

[f] Granting temporary or permanent custody of a child or children to the petitioner;

[g] Directing the respondent to provide support to the woman 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 or withhold or any delay in the remittance of support to the woman or her children without justifiable cause will render the respondent or his employer liable for indirect contempt of court;

[h] Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply fore any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on the matter;

[i] Restitution for actual damages caused by the violence inflicted, including but not limited to, property damage, medical expenses, childcare expenses and loss of income;

[j] Directing the DSWD or any appropriate agency to provide what the petitioner may need; and

k] Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief.

Any of the reliefs provided above shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage.

Is it only the woman-victim or her children who can ask for the issuance of a protection order?

No. Violence against women or their children is considered as a public offense under Section 25 of RA 9262. Section 9 of RA 9262 enumerates the persons, besides the woman or her children, who can file the petition for a protection order. These persons are:

• parents or guardians of the offended party;
• ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity;
• officers or social workers of the DSWD or social workers of local government units (LGUs);
• police officers, preferably those in charge of women and children’s desks;
• Punong Barangay or Barangay Kagawad;
• lawyer, counselor, therapist or healthcare provider of the petitioner; or
• at least two concerned responsible citizens of the city or municipality where the violence against women and their children took place and who have personal knowledge of the offense committed.

What are the procedures in applying for a protection order?

Section 11 of RA 9262 provides the steps in applying for a protection order:

The application for a protection order must be in writing, signed and verified under oath by the applicant.

It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of violence as described in this Act.

A standard protection order application form, written in English with translation to the major local languages, is available to facilitate applications for protection order, and contains, among others, the following information:

[1] names and addresses of the petitioner and respondent

[2] description of relationships between petitioner and respondent;

[3] a statement of the circumstances of the abuse;description of the reliefs requested by petitioner as specified in Section 8 herein;

[4] request for counsel and reasons for such;

[5] request for waiver of application fees until hearing; and

[6] an attestation that there is no pending application for a protection order in another court.

If the applicant is not the victim, the application must be accompanied by an affidavit of the applicant certifying to (a) the circumstances of the abuse suffered by the victim and (b) the circumstances of consent given by the victim for the filing of the application. When disclosure of the address of the victim will pose danger to her life, it must be so stated in the application. In such a case, the applicant shall attest that the victim is residing in the municipality or city over which the court has territorial jurisdiction, and must provide a mailing address for purpose of service processing.

An application for protection order filed with a court is an application for both a TPO and PPO.

Barangay officials and court personnel must assist applicants in the preparation of the application. Law enforcement agents must also extend assistance in the application for protection orders in cases brought to their attention.

Does the TPO or PPO have valid effect only within the jurisdiction of the court that issued the order?

Section 12 of RA 9262 provides: “All TPOs and PPOs issued under this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be punishable with a fine ranging from Five Thousand pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or imprisonment of six (6) months.”

What are the procedures in the issuance of a Barangay Protection Order?

Section 14 of RA 9262 provides for the following procedures:

A Punong Barangay who receives applications for a BPO must issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application.

[1] If the Punong Barangay is unavailable to act on the application for a BPO, the application must be acted upon by any available Barangay Kagawad.

[2] If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of a BPO.

[3] BPOs are effective for fifteen days.

[4] Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad must personally serve a copy of the same on the respondent, or direct any barangay official to effect its personal service.

[5] The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

The BPO is limited only to the following reliefs or remedies:

[a] Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

[b] Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly.

If the barangay issued a BPO, will this prevent the woman-victim or her children from going to court and asking for a TPO or a PPO?

The issuance of a Barangay Protection Order or the pendency of an application for BPO does not prevent a petitioner from applying for, or the court from granting a TPO or PPO.

What is a Temporary Protection Order (TPO)?

Section 15 of RA 9262 defines a TPO as the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued.

Ex parte determination means that the offender does not need to be notified of the hearing or to be present during the hearing for the issuance of a TPO.

What can the court provide for in a TPO?

A court may grant in a TPO any, some or all of all the reliefs mentioned in Section 8 of RA 9262. The TPO is effective for thirty days. The court must schedule a hearing on the issuance of a PPO on or before the date of the expiration of the TPO.

The court must order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO must include notice of the date of the hearing on the merits of the issuance of a PPO.

What is a Permanent Protection Order (PPO)?

Section 16 of RA 9262 defines “Permanent Protection Order” (PPO) as the protection order issued by the court after notice and hearing.

While a TPO may be decided ex parte, notice to the alleged offender and due hearing are necessary for the issuance of a PPO.

What if the offender refuses or fails to appear during the hearing for the issuance of a PPO?

The alleged offender cannot frustrate justice by refusing or failing to appear during the hearing. RA 9262 provides for the following:

[1] Respondent’s non-appearance despite proper notice, or his lack of a lawyer, or the non-availability of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO.

[2] If the respondent appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing.

[3] In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented.

What are the procedures to be followed by the court in the hearing for the issuance of a PPO?

RA 9262 provides for the following procedures:

[1] The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the application is made.

[2] The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one day.

[3] Where the court is unable to conduct the hearing within one day and the TPO issued is due to expire, the court must continuously extend or renew the TPO for a period of thirty days at each particular time until a final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant.

[4] The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. A PPO is effective until revoked by a court upon application of the person in whose favor the order was issued.

[5] The court must ensure immediate personal service of the PPO on respondent.

[6] The court must not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application.

[7] Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO should become final. Even in a dismissal, a PPO must be granted as long as there is no clear showing that the act from which the order might arise did not exist.

What should the copy of the protection order contain?

Section 17 of RA 9262 provides that the following statement must be printed in boldfaced type or in capital letters on the protection order issued by the Punong Barangay or Court: “VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW”

What will happen if the barangay or the court fails to observe the periods mentioned in RA 9262?

Section 18 provides that failure to act on an application for a protection order within the prescribed period without justifiable cause will render the official or judge administratively liable.

What if the barangay council or the judges are busy with other matters?

Section 20 provides that application for a protection order must have priority:

[1] Barangay officials and the courts must schedule and conduct hearings on applications for a protection order under this Act above all other business and, if necessary, suspend other proceedings in order to hear applications for a protection order.

[2] Ex parte and adversarial hearings to determine the basis of applications for a protection order under RA 9262 must have priority over all other proceedings.

What if the barangay issued a BPO but the woman’s intimate partner violates it by inflicting harm or threatening the woman and/or her child?

Under Section 21, violation of a BPO is punishable by imprisonment of thirty days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

[1] A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO.

[2] A judgment of violation of a BPO may be appealed according to the Rules of Court. During trial and upon judgment, the trial court may on its own issue a protection order as it deems necessary without need of an application.

What are the consequences if a TPO or a PPO is violated?

Violation of any provision of a TPO or a PPO issued under this Act constitutes contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

What consequences, if any, are there if barangay or police officials refuse to act on a complaint filed by an abused woman or her children?

Any barangay official or law enforcer who fails to report the incident is liable for a fine not exceeding ten thousand pesos or whenever applicable criminal, civil or administrative liability.

Are complaints for violations of RA 9262 covered by the barangay justice system, or by mediation and conciliation?

No. Section 33 provides that the following are prohibited acts:

[1] A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order must not order, direct, force or in any way unduly influence the applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under RA 9262.

[2] Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 do not apply in proceedings where relief is sought under RA 9262.

[3] Failure to comply with this Section will render the official or judge administratively liable.