Property rights of foreigners married to or living in with Filipino citizens; Can foreigners own land and other real properties in the Philippines?

Notes: (1) Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud. (2) Jump to property rights of foreigners married to Filipino citizens or to property rights of foreigners living in with Filipino citizens.

The Supreme Court in the August 2006 case of Elena Buenaventura Muller vs. Helmut Muller, G.R. No. 149615, clarified the issue of ownership of houses and lands by foreigners married to Filipino citizens.

On the other hand, the 2009 Supreme Court decision in Borromeo vs. Descallar answered the question: “What are the rights of a foreigner (and his successor-in-interest) who acquired real properties in the country as against his former Filipina girlfriend in whose sole name the properties were registered under the Torrens system?”

Before discussing these cases, however, let’s have a brief overview:

What is the Constitutional provision on foreign ownership of land in the Philippines?

Section 7, Article XII of the 1987 Constitution states:

Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

The rule clearly therefore is that aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain. Hence, they are also disqualified from acquiring private lands.

Note: The Supreme Court in the case of “United Church Board for World Ministries v. Sebastian” reiterated the consistent ruling that if land is invalidly transferred to an alien who subsequently becomes a Filipino citizen or transfers it to a Filipino, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid.

What is the purpose for this Constitutional prohibition?

The primary purpose of the Constitutional provision is the conservation of the national patrimony. In the classic case of Krivenko v. Register of Deeds, the Supreme Court held:

Under section 1 of Article XIII of the Constitution, "natural resources, with the exception of public agricultural land, shall not be alienated," and with respect to public agricultural lands, their alienation is limited to Filipino citizens. But this constitutional purpose conserving agricultural resources in the hands of Filipino citizens may easily be defeated by the Filipino citizens themselves who may alienate their agricultural lands in favor of aliens. It is partly to prevent this result that section 5 is included in Article XIII, and it reads as follows:

"Sec. 5. Save in cases of hereditary succession, no private agricultural land will be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines."

This constitutional provision closes the only remaining avenue through which agricultural resources may leak into aliens' hands. It would certainly be futile to prohibit the alienation of public agricultural lands to aliens if, after all, they may be freely so alienated upon their becoming private agricultural lands in the hands of Filipino citizens.

Does the term “private agricultural lands” exclude residential lots from the prohibition?

If the term “private agricultural lands” is to be construed as not including residential lots or lands not strictly agricultural, the result would be that “aliens may freely acquire and possess not only residential lots and houses for themselves but entire subdivisions, and whole towns and cities,” and that “they may validly buy and hold in their names lands of any area for building homes, factories, industrial plants, fisheries, hatcheries, schools, health and vacation resorts, markets, golf courses, playgrounds, airfields, and a host of other uses and purposes that are not, in appellant's words, strictly agricultural.” That this is obnoxious to the conservative spirit of the Constitution is beyond question.

What are the exceptions to the restriction on acquisition  by foreigners of land in the Philippines?

1. Purchase by a former natural-born Filipino citizen subject to the limitations prescribed by Batas Pambansa 185 and R.A. 8179

2. Acquisition before the 1935 Constitution

3. Purchase of not more than 40% interest in a condominium project

4. Acquisition through hereditary succession if the foreigner is a legal or natural heir

What are the limitations on land ownership by former Filipino citizens?

Before the enactment of Republic Act 9225 (Citizenship Retention and Re-acquisition Act of 2003), Filipinos who were naturalized as U.S. citizens were deemed to have lost their Filipino citizenship.

Under RA 9255, former Filipinos who became naturalized citizens of foreign countries are deemed not to have lost their Philippine citizenship. Thus they can enjoy all the rights and privileges of a Filipino regarding land ownership in the Philippines.

If a former Filipino who is now a naturalized citizen of a foreign country does not want however to avail of the Dual Citizen Law in the Philippines, he or she can still acquire land based on BP (Batas Pambansa) 185 and RA (Republic Act) 8179 but subject to the following limitations:

For residential use (BP 185 enacted in March 1982): Up to 1,000 square meters of residential land, and pp to one (1) hectare of agricultural of farm land

For business / commercial use (RA 8179 which amended the Foreign Investment Act of 1991): Up to 5,000 square meters of urban land, and p to three (3) hectares of rural land

Can foreigners own condominium units or corporations?

The Condominium Act of the Philippines, R.A. 4726, expressly allows foreigners to acquire condominium units and shares in condominium corporations provided that the total controlling interest of foreigners in the condominium project does not exceed 40 percent. (Condominium owners have exclusive rights over the space “encompassed by the walls, ceilings, and floors” of their units but are only co-owners of the common areas, such as the hallways, lobbies, entrances and exits, and parking bays.)

What is meant by ownership on the basis of hereditary succession?

When the foreigner is married to a Filipino citizen, and the spouse dies, the non-Filipino as the natural heir will become the legal owner of the property. Children, as legal heirs, may also own real property. Every natural child, legitimate or illegitimate can inherit real property even if he or she does not hold Filipino citizenship.

Filipinos who are naturalized as U.S. citizens lose their Filipino citizenship. Despite the loss of citizenship, they remain eligible to acquire real property in the Philippines by hereditary succession. Children born to them in the U.S. are also eligible to inherit real property even if they are U.S. citizens.

‘Hereditary succession” refers to intestate succession where the person dies without leaving a last will and testament. Transfer of ownership of land cannot be done through a last will and testament.

What are the property rights of a foreigner married to a Filipino citizen?

1. The foreigner can legally own a house or building in the Philippines as long as he or she does not own the land on which the structure is built. For this purpose, the documents like Deed of Sale can contain the name of the foreigner-spouse, except for the title. (Please take note of the Muller case which we will discuss below.)

2. When the foreigner is married to a Filipino citizen, and the spouse dies, the non-Filipino as the natural heir will become the legal owner of the property.

One website states that “in the event of death of the Filipino spouse, the foreign spouse is allowed a reasonable amount of time to dispose of the property and collect the proceeds or the property will pass to any Filipino heirs and or relatives.” I cannot however find any RA or PD or Department of Justice opinion which backs up this assertion. The Constitutional provision is clear that the foreigner-spouse, in the event of death of the Filipino spouse, has the legal right to own the property.

Note: What are the rights of a foreigner (and his successor-in-interest) who acquired real properties in the country as against his former Filipina girlfriend in whose sole name the properties were registered under the Torrens system? Please read the Supreme Court decision in Borromeo vs. Descallar, G.R. No. 159310, February 24, 2009.

The facts of the Muller case and the Supreme Court decision

1. Petitioner Elena Buenaventura Muller (“Elena” for brevity) and respondent Helmut Muller (“Helmut” for brevity) were married in Hamburg, Germany on September 22, 1989. The couple resided in Germany at a house owned by respondent's parents but decided to move and reside permanently in the Philippines in 1992. By this time, Helmut had inherited the house in Germany from his parents which he sold and used the proceeds for the purchase of a parcel of land in Antipolo, Rizal at the cost of P528,000.00 and the construction of a house amounting to P2,300,000.00. The Antipolo property was registered in the name of Elena under Transfer Certificate of Title No. 219438 of the Register of Deeds of Marikina, Metro Manila.

2. Due to incompatibilities and Helmut’s alleged womanizing, drinking, and maltreatment, the spouses eventually separated.

On September 26, 1994, Helmut filed a petition for separation of properties before the Regional Trial Court of Quezon City (“RTC” for brevity).

3. On August 12, 1996, the RTC rendered a decision which terminated the regime of absolute community of property between the couple. It also decreed the separation of properties between them and ordered the equal partition of personal properties located within the country, excluding those acquired by gratuitous title during the marriage.

With regards the Antipolo property, the court held that it was acquired using Helmut’s personal funds. However, it ruled that Helmut cannot recover his funds because the property was purchased in violation of Section 7, Article XII of the Constitution. The RTC explained:

Pursuant to Article 92 of the Family Code, properties acquired by gratuitous title by either spouse during the marriage shall be excluded from the community property. The real property, therefore, inherited by Helmut in Germany is excluded from the absolute community of property of the spouses.

Necessarily, the proceeds of the sale of said real property as well as the personal properties purchased thereby, belong exclusively to Helmut. However, the part of that inheritance used by Helmut for acquiring the house and lot in this country cannot be recovered by him, its acquisition being a violation of Section 7, Article XII of the Constitution. The law will leave the parties in the situation where they are in without prejudice to a voluntary partition by the parties of the said real property.

4. Helmut appealed to the Court of Appeals (“CA” for brevity). The CA overturned the RTC decision stating that Helmut merely asked for reimbursement for the purchase of the Antipolo property, and not acquisition or transfer of ownership to him (and that therefore there was no violation of the Constitution).

The CA further said that Elena’s ownership over the property was in trust for her husband Helmut. As regards the house, the CA ruled that there is nothing in the Constitution which prohibits Helmut from acquiring it.

5. Elena then appealed to the Supreme Court (“SC” for brevity). The SC overturned the CA and thereby reinstated the decision of the RTC which was favorable to Elena.

The SC ruled that Helmut was aware of the Constitutional prohibition and expressly admitted his knowledge. He declared that he had the Antipolo property titled in Elena’s because of the said prohibition. His attempt at subsequently asserting or claiming a right on the property cannot be sustained.

The SC also said that “the Court of Appeals erred in holding that an implied trust was created and resulted by operation of law in view of the marriage. Except for the exception provided in cases of hereditary succession, Helmut’s disqualification from owning lands in the Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of the fraud. To hold otherwise would allow circumvention of the constitutional prohibition.”

In sum, the Supreme Court ruled that, as the RTC had originally decided, Elena cannot be ordered to reimburse Helmut his money used for the purchase of the lot and the construction of the house in Antipolo.

Property rights of foreigners living in with Filipino citizens

“What are the rights of a foreigner (and his successor-in-interest) who acquired real properties in the country as against his former Filipina girlfriend in whose sole name the properties were registered under the Torrens system?” This is the question answered by the Supreme Court in its decision in Borromeo vs. Descallar, G.R. No. 159310, February 24, 2009.

The facts of the Borromeo vs. Descallar case and the Supreme Court ruling

1. Wilhelm Jambrich, an Austrian, arrived in the Philippines in 1983 after he was assigned by his employer, Simmering-Graz Panker A.G., an Austrian company, to work at a project in Mindoro. In 1984, he transferred to Cebu and worked at the Naga II Project of the National Power Corporation. There, he met Antonietta Opalla-Descallar (“Descallar” for brevity), a separated mother of two boys who was working as a waitress at St. Moritz Hotel. Jambrich befriended Descallar and asked her to tutor him in English. In dire need of additional income to support her children, she agreed. The tutorials were held in Antonietta’s residence at a squatters’ area in Gorordo Avenue.

2. Jambrich and Descallar fell in love and decided to live together in a rented house in Hernan Cortes, Mandaue City. Later, they transferred to their own house and lots at Agro-Macro Subdivision, Cabancalan, Mandaue City. In the Contracts to Sell dated November 18, 1985 and March 10, 1986 covering the properties, Jambrich and Descallar were referred to as the buyers. A Deed of Absolute Sale dated November 16, 1987 was likewise issued in their favor.

3. However, when the Deed of Absolute Sale was presented for registration before the Register of Deeds, registration was refused on the ground that Jambrich was an alien and could not acquire alienable lands of the public domain. Consequently, Jambrich’s name was erased from the document. But it could be noted that his signature remained on the left hand margin of page 1, beside Descallar’s signature as buyer on page 3, and at the bottom of page 4 which is the last page. Transfer Certificate of Title (TCT) Nos. 24790, 24791 and 24792 over the properties were issued in Descallar’s name alone.

4. Jambrich also formally adopted respondent’s two sons.

5. However, the idyll lasted only until April 1991. By then, Descallar found a new boyfriend while Jambrich began to live with another woman in Danao City. Jambrich supported Descallar’s sons for only two months after the break up.

6. Jambrich met petitioner Camilo F. Borromeo (“Borromeo” for brevity) sometime in 1986. Borromeo was engaged in the real estate business. He also built and repaired speedboats as a hobby. In 1989, Jambrich purchased an engine and some accessories for his boat from Borromeo, for which he became indebted to the latter for about Php 150,000.00. To pay for his debt, he sold his rights and interests in the Agro-Macro properties to Borromeo for Php 250,000, as evidenced by a “Deed of Absolute Sale/Assignment.”

7. On July 26, 1991, when Borromeo sought to register the deed of assignment, he discovered that titles to the three lots have been transferred in the name of Descallar, and that the subject property has already been mortgaged.

8. On August 2, 1991, Borromeo filed a complaint against Descallar for recovery of real property before the Regional Trial Court of Mandaue City. He alleged:

(a) the Contracts to Sell dated November 18, 1985 and March 10, 1986 and the Deed of Absolute Sale dated November 16, 1987 over the properties which identified both Jambrich and Descallar as buyers do not reflect the true agreement of the parties since Descallar did not pay a single centavo of the purchase price and was not in fact a buyer;

(b) that it was Jambrich alone who paid for the properties using his exclusive funds;

(c) that Jambrich was the real and absolute owner of the properties; and,

(d) that he acquired absolute ownership by virtue of the Deed of Absolute Sale/Assignment dated July 11, 1991 which Jambrich executed in his favor.

9. In her Answer, Descallar denied the allegation that she did not pay a single centavo of the purchase price. On the contrary, she claimed that she “solely and exclusively used her own personal funds to defray and pay for the purchase price of the subject lots in question,” and that Jambrich, being an alien, was prohibited to acquire or own real property in the Philippines.

10. At the trial, Descallar presented evidence showing her alleged financial capacity to buy the disputed property with money from a supposed copra business. Borromeo, in turn, presented Jambrich as his witness and documentary evidence showing the substantial salaries which Jambrich received while still employed by the Austrian company, Simmering-Graz Panker A.G.

11. The Mandaue City RTC ruled in favor of Borromeo. The court concluded that:

It is highly improbable and impossible that Descallar could acquire the properties under litigation or could contribute any amount for their acquisition which according to her is worth more than Php 700,000.00 when while she was working as [a] waitress at St. Moritz Hotel earning Php 1,000.00 a month as salary and tips of more or less Php 2,000.00 she could not even provide [for] the daily needs of her family so much so that it is safe to conclude that she was really in financial distress when she met and accepted the offer of Jambrich to come and live with him because that was a big financial opportunity for her and her children who were already abandoned by her husband.

The trial court, citing the Supreme Court decision in United Church Board for World Ministries v. Sebastian ruled in favor of Borromeo. That decision reiterated the consistent ruling that if land is invalidly transferred to an alien who subsequently becomes a Filipino citizen or transfers it to a Filipino, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid. The trial stated in its ruling:

While the acquisition and the purchase of Wilhelm Jambrich of the properties under litigation were void ab initio since they were contrary to the Constitution of the Philippines, he being a foreigner, yet, the acquisition of these properties by plaintiff who is a Filipino citizen from him, has cured the flaw in the original transaction and the title of the transferee is valid.

The Mandaue City RTC thus rendered judgment in favor of Borromeo by:

(a) declaring that Borromeo was the owner of the properties in dispute;

(b) declaring as null and void the titles registered in Descallar’s name;

(c) ordering the Register of Deeds to cancel the titles issued in Descallar’s name and to issue new titles in Borromeo’s name.

12. Descallar appealed to the Court of Appeals. In a Decision dated April 10, 2002, the appellate court reversed the decision of the trial court. In ruling for the respondent, the Court of Appeals held:

We disagree with the lower court’s conclusion. The circumstances involved in the case cited by the lower court and similar cases decided on by the Supreme Court which upheld the validity of the title of the subsequent Filipino purchasers are absent in the case at bar. It should be noted that in said cases, the title to the subject property has been issued in the name of the alien transferee (Godinez et al., vs. Fong Pak Luen et al., 120 SCRA 223 citing Krivenko vs. Register of Deeds of Manila, 79 Phils. 461; United Church Board for World Ministries vs. Sebastian, 159 SCRA 446, citing the case of Sarsosa Vda. De Barsobia vs. Cuenco, 113 SCRA 547; Tejido vs. Zamacoma, 138 SCRA 78). In the case at bar, the title of the subject property is not in the name of Jambrich but in the name of defendant-appellant. Thus, Jambrich could not have transferred a property he has no title thereto.

13. When his motion for reconsideration was denied, Borromeo filed a petition for review with the Supreme Court. The Court reversed the Court of Appeals and affirmed the decision of the Mandaue City RTC. The Supreme Court ruled:

(a) Jambrich was the source of fund used to purchase the three parcels of land, and to construct the house thereon. He therefore has all authority to transfer all his rights, interests and participation over the subject properties to petitioner by virtue of the Deed of Assignment he executed on July 11, 1991 in Borromeo’s favor.

(b) The rule that co-ownership applies to a man and a woman living exclusively with each other as husband and wife without the benefit of marriage, but are otherwise capacitated to marry each other, does not apply to Jambrich and Descallar. She was still legally married to another when she and Jambrich lived together. In such an adulterous relationship, no co-ownership exists between the parties. It is necessary for each of the partners to prove his or her actual contribution to the acquisition of property in order to be able to lay claim to any portion of it. Presumptions of co-ownership and equal contribution do not apply.

(c) Since the true buyer of the disputed house and lots was Jambrich (an Austrian), what now is the effect of registration of the properties in his name?

[1] It is settled that registration is not a mode of acquiring ownership. It is only a means of confirming the fact of its existence with notice to the world at large. Certificates of title are not a source of right. The mere possession of a title does not make one the true owner of the property. Thus, the mere fact that Descallar has the titles of the disputed properties in her name does not necessarily, conclusively and absolutely make her the owner. The rule on indefeasibility of title likewise does not apply to respondent. A certificate of title implies that the title is quiet, and that it is perfect, absolute and indefeasible. However, there are well-defined exceptions to this rule, as when the transferee is not a holder in good faith and did not acquire the subject properties for a valuable consideration. This is the situation in the instant case. Descallar did not contribute a single centavo in the acquisition of the properties. She had no income of her own at that time, nor did she have any savings. She and her two sons were then fully supported by Jambrich.

[2] The transfer of land from Agro-Macro Development Corporation to Jambrich, who is an Austrian, would have been declared invalid if challenged, had not Jambrich conveyed the properties to Borromeo who is a Filipino citizen.

[3] The rationale behind the Court’s ruling in United Church Board for World Ministries, as reiterated in subsequent cases, is this – since the ban on aliens is intended to preserve the nation’s land for future generations of Filipinos, that aim is achieved by making lawful the acquisition of real estate by aliens who became Filipino citizens by naturalization or those transfers made by aliens to Filipino citizens. As the property in dispute is already in the hands of a qualified person, a Filipino citizen, there would be no more public policy to be protected. The objective of the constitutional provision to keep our lands in Filipino hands has been achieved.

(The narration of facts and rulings abovecome from the Supreme Court rulings cited in this post.)

Due process and two-notice rule in termination of employment; five calendar days to answer the charges and hearing required

Summary: 1. Due process in the termination of employment requires the employer to give two notices to the employee. 2. First notice: it must provide a detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. It must also give the employee at least five days from receipt to prepare an answer. 3. Hearing or conference: after the employee has submitted an answer, the employer must schedule a hearing. The employee can rebut the evidence presented by the management. The employer and employee can also use this hearing to settle the case amicably. 4. Second notice: if the employer finds that termination is justified, it must give the employee a written notice of termination. 5. The employee can contest the termination by filing a case with the National Labor Relations Commission. 6. Termination for blameworthy conduct but without procedural due process: Termination remains valid. But, as penalty for the employer’s violation of due process, the employee is entitled to Php 30,000 as nominal damages (Jenny Agabon v National Labor Relations Commission) 7. Termination for economic reasons but without procedural due process: Termination remains valid but employee is entitled to Php 50,000 nominal damages (Jaka Foods Processing Corporation v Darwin Pacot).

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The Supreme Court in the case of Genuino vs. NLRC G.R. Nos. 142732-33, December 04, 2007 discussed the requirements for the two-notice rule which constitutes due process in the termination of employment. Citing the case of King of Kings Transport, Inc. v. Mamac, the Court explained:

[A] The first notice must provide a detailed narration of the facts and circumstances that will serve as basis for the charge against the employee.

[B] The first notice must give the employee at least five days from receipt to prepare his answer.

[C] After the first notice has been served, the employer must schedule a hearing or conference.

First notice

The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period.

“Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.

Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice.

Lastly, the notice should specifically mention which company rules, if any, are violated or which among the grounds under Art. 282 is being charged against the employees.

Hearing or conference

After serving the first notice, the employers should schedule and conduct a hearing or conference where the employees will be given the opportunity to:

(1) explain and clarify their defenses to the charge against them;
(2) present evidence in support of their defenses; and
(3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

Second notice

After determining that termination of employment is justified, the employers must serve the employees a written notice of termination indicating that:

(1) all circumstances involving the charge against the employees have been considered; and
(2) grounds have been established to justify the severance of their employment.

Note: The company may schedule the hearing or conference after the employee has submitted his answer. But the better procedure is to place in the first notice the date and time of the hearing or conference (the notice must of course observe the five calendar day requirement).

Does RA 9262 apply to the EB Babes?

Two nights ago, GMA 7 (24 Oras) and ABS-CBN (TV Patrol) both reported an incident in a San Juan donut shop involving members of the EB Babes, a noontime show dance group, on one side and a man and his family on the other side. Allegedly, one EB Babe got hurt when the man threw a cup of hot water at her.

The EB Babes (without any make-up and in plain T-shirts) looked like they were just minors but what really got my attention was the Channel 2 reporter's comments that the police investigators were filing against the man charges for “violence against women.”

Excuse me, come again? Violence against women? RA 9262?

RA 9262 “Anti-Violence Against Women and their Children Act of 2004” is our country’s landmark law on domestic violence. Take note of the term “domestic violence.” Violations of RA 9262 can only be committed against a woman and/or her children by a husband, former husband, live-in partner, former live-in partner, boyfriend, former boyfriend, dating or sexual partner, or a former dating or sexual partner. Thus, RA 9262 cannot be filed against the man who allegedly threw that cup of hot water against the EB Babe concerned.

It is sad (unforgivable may be the better term) that four years after RA 9262 became effective, police officers, barangay officials, social workers, and news reporters still do not know what the law is all about. I have been told of numerous instances when social workers or barangay officials have mediated conflicts between parties covered by RA 9262 (for example, settling disputes on custody of children, financial support). RA 9262 expressly prohibits government officials and employees from mediating such cases. Please read my post entitled “Mediation not allowed in domestic violence cases (with apologies to Pia Guanio)” which discusses why the law does not allow the mediation of this kind of cases.

Please review my other posts on RA 9262:

Hope and help for the battered woman (1): Statistics on domestic violence
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
Hold Departure Orders for OFWs under RA 9262
The "Battered Woman Syndrome" as defense
The "Battered Woman Syndrome" explained

If RA 9262 cannot be filed against that man who allegedly hurt one of the EB Babes, what case can be filed? If it is true that the EB Babes are below 18 (they look like they’re only 15 or 16), then Republic Act No. 7610 "Special Protection of Children Against Abuse, Exploitation and Discrimination Act" will apply. Under RA 7610 the "child abuse" does not need to be habitual. If the EB Babes involved in the incident are beyond 18, then the Revised Penal Code provision on physical injuries will apply, not RA 7610.

Visitation rights over illegitimate children

Summary: 1. The mother has exclusive parental authority over her illegitimate child (Art. 176 of the Family Code). For example, a DSWD travel clearance is not required for an illegitimate child traveling abroad with the mother. 2. The biological father has visitorial right over his illegitimate children in view of the constitutionally protected inherent and natural right of parents over their children (Supreme Court ruling in Silva v. Court of Appeals, 1997). This right is personal to the father; no other person, like grandparents, can exercise this right for him. Silva (the father) may have won with the Supreme Court’s upholding of his visitation rights, but this favorable decision did not prevent Suzanne (the mother), in the exercise of her parental authority, from immigrating to Holland with her two children. 3. The right to visitation and the duty to pay child support are distinct and separate. 4. If the mother and the father of the illegitimate child can agree on the terms and conditions of the visitation, then there will be no problem. In case of disagreement however, the father must file a petition asking the court to settle the terms and conditions.

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An illegitimate child is under the exclusive parental authority of the mother (Article 176 of the Family Code)

The Supreme Court, through Justice Artemio Panganiban, in Briones vs. Miguel (2004) stated the fundamental rule on a mother's parental authority over an illegitimate child:

“An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care.”

Visitation right of the biological father

The term “visitation right” means “the right of access of a noncustodial parent to his or her child or children.” The Supreme Court in the 1997 case of Silva v. Court of Appeals ruled that the biological father has visitorial right over his illegitimate children in view of the constitutionally protected inherent and natural right of parents over their children. The Court clarified:

“Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.”

Please read below the clarifications of the Supreme Court ruling on visitation rights like parental authority, travel clearance for illegitimate children, mother's written consent, and right to visitation and the duty to pay child support are distinct and separate. You need to read the facts of the Silva case below in order to appreciate better my discussion of these clarifications and related issues.

Clarifications on the Supreme Court’s ruling on visitation rights

1. Visitation rights and parental authority: As pointed out above, parental authority over an illegitimate child belongs to the mother. Silva may have won with the Supreme Court’s upholding of his visitation rights, but this favorable decision did not prevent Suzanne in the exercise of her parental authority from immigrating to Holland with her two children.

2. No need to go to court if the mother and father can agree: If the mother and the father of the illegitimate child can agree amicably on the terms and conditions of the father’s visitation rights, then there will be no problem. In case of disagreement however, the father has to file a petition asking the court to settle the issue of visitation rights.

3. Can a father be denied visitation rights? The Supreme Court in its Silva ruling stated that Suzanne’s fears and apprehensions were unfounded as to the father’s corrupting influence over the children. If it is proven therefore that indeed the father is a negative influence on the children (because of reasons like immorality, drunkenness, etc), the trial court, taking into consideration the best interest of the children, can deny his petition for the exercise of his visitation rights.

4. Is the mother’s written consent always necessary before the father can take his illegitimate child out? Does the Silva vs. CA ruling of the Supreme Court mean that in all other cases the mother’s written permission must always be obtained before the father can take his illegitimate child out? As you can read from the excerpts of the SC decision above, the Quezon City RTC imposed this precautionary measure in view of Suzanne’s apprehensions over the negative influence of Silva’s alleged womanizing.

In one case, the Court of Appeals ruled that the written consent was not mandatory if the facts are not similar to the Silva case, that is, the mother had reasonable apprehensions over the welfare of her children. If the facts are not the same, then trial court judges handling the petition for visitation rights may or may not impose the condition of the mother’s written permission. (The Supreme Court of course may in the proper case uphold or reject this position of the Court of Appeals.)

Related issues:

1. The right to visitation and the duty to pay child support are distinct and separate:

The Supreme Court in the case of David v. Court of Appeals (G.R. No. 115821, 13 October 1999, 316 SCRA 710) held that the recognition of an illegitimate child by the father could be a ground for ordering the latter to give support to, but not custody of, the child. In other words , the right to visitation and the duty to pay child support are distinct and separate.

From Ask Atty. Christine Florido: “Even if the mother violates any voluntary agreement or a court order on visitation rights, the father cannot use this as an excuse to withhold financial support for the child. Conversely, a mother who has not been regularly receiving the child support payment from the errant parent cannot legally prevent the deadbeat dad from seeing his child by that reason alone. Child support payment is not a rental fee for the time spent with the child. Visitation is the right of the child to bond with the other parent, and it has nothing to do with child support. The appropriate remedy of the mother is to allow access to the child, but to go back to court for the violation of the support agreement.”

2. There are occasions when the mother marries a man who wishes to adopt her illegitimate child. Is the consent of the biological father necessary?

Section 9 of RA 8552 (Domestic Adoption Act of 1998) states that the written consent of the natural parent is necessary.

If the mother can prove that she exerted earnest and diligent efforts to locate the whereabouts of the biological father but without success, then the written consent is not necessary. Social workers of the DSWD or of the Family Courts, citing the best interest doctrine, have generally given favorable recommendations in their Child and Home Study Reports for the adoption of illegitimate children.

The facts of the Silva case

1. Carlitos Silva and Suzanne Gonzales had a live-in relationship and they had two children, namely, Ramon Carlos and Rica Natalia. Silva and Suzanne eventually separated.

2. Silva and Suzanne had an understanding that Silva would have the children in his company on weekends.

3. The legal conflict began when Silva claimed that Suzanne broke that understanding on visitation rights. Silva filed a petition for custodial rights over the children before the Regional Trial Court Branch 78 of Quezon City. The petition was opposed by Gonzales who claimed that Silva often engaged in "gambling and womanizing" which she feared could affect the moral and social values of the children.

4. The Quezon City RTC ruled in favor of Silva giving him visitorial rights to his children during Saturdays and/or Sundays. The court however explicitly stated that in no case should Silva take the children out without the written consent of Suzanne.

5. Suzanne filed an appeal from the RTC’s decision to the Court of Appeals. In the meantime, Suzanne had gotten married to a Dutch national. She eventually immigrated to Holland with her children Ramon Carlos and Rica Natalia.

6. The Court of Appeals overturned the ruling of the Quezon City RTC. The CA, stated that as alleged by Suzanne, Silva’s womanizing would have a negative influence on the children. The CA explained:

“With Articles 3 and 8 of PD 603, in mind, We find it to the best interest of the minor children, to deny visitorial and/or temporary custodial rights to the father, even at the expense of hurting said parent. After all, if indeed his love for the children is genuine and more divine than the love for himself, a little self-sacrifice and self-denial may bring more benefit to the children. While petitioner-appellee, as father, may not intentionally prejudice the children by improper influence, what the children may witness and hear while in their father's house may not be in keeping with the atmosphere of morality and rectitude where they should be brought up.

“The children concerned are still in their early formative years of life. The molding of the character of the child starts at home. A home with only one parent is more normal than two separate houses - (one house where one parent lives and another house where the other parent with another woman/man lives). After all, under Article 176 of the Family Code, illegitimate children are supposed to use the surname of and shall be under the parental authority of their mother.

“The child is one of the most important assets of the nation. It is thus important we be careful in rearing the children especially so if they are illegitimates, as in this case.”

7. Silva then appealed to the Supreme Court. The High Court set aside the ruling of the Court of Appeals and reinstated the Quezon City RTC’s decision favoring Silva’s visitation rights on weekends with Suzanne’s written permission. The Supreme Court explained:

The issue before us is not really a question of child custody; instead, the case merely concerns the visitation right of a parent over his children which the trial court has adjudged in favor of petitioner by holding that he shall have “visitorial rights to his children during Saturdays and/or Sundays, but in no case (could) he take out the children without the written consent of the mother x x x." The visitation right referred to is the right of access of a noncustodial parent to his or her child or children.

There is, despite a dearth of specific legal provisions, enough recognition on the inherent and natural right of parents over their children. Article 150 of the Family Code expresses that "(f)amily relations include those x x x (2) (b)etween parents and children; x x x." Article 209, in relation to Article 220, of the Code states that it is the natural right and duty of parents and those exercising parental authority to, among other things, keep children in their company and to give them love and affection, advice and counsel, companionship and understanding. The Constitution itself speaks in terms of the "natural and primary rights” of parents in the rearing of the youth. There is nothing conclusive to indicate that these provisions are meant to solely address themselves to legitimate relationships. Indeed, although in varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond the legitimate members of the family and so explicitly encompass illegitimate relationships as well. Then, too, and most importantly, in the declaration of nullity of marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family Code provides for appropriate visitation rights to parents who are not given custody of their children.

There is no doubt that in all cases involving a child, his interest and welfare is always the paramount consideration. The Court shares the view of the Solicitor General, who has recommended due course to the petition, that a few hours spent by petitioner with the children, however, could not all be that detrimental to the children. Similarly, what the trial court has observed is not entirely without merit; thus:

“The allegations of respondent against the character of petitioner, even assuming as true, cannot be taken as sufficient basis to render petitioner an unfit father. The fears expressed by respondent to the effect that petitioner shall be able to corrupt and degrade their children once allowed to even temporarily associate with petitioner is but the product of respondent's unfounded imagination, for no man, bereft of all moral persuasions and goodness, would ever take the trouble and expense in instituting a legal action for the purpose of seeing his illegitimate children. It can just be imagined the deep sorrows of a father who is deprived of his children of tender ages.”

The Court appreciates the apprehensions of private respondent and their well-meant concern for the children; nevertheless, it seems unlikely that petitioner would have ulterior motives or undue designs more than a parent’s natural desire to be able to call on, even if it were only on brief visits, his own children. The trial court, in any case, has seen it fit to understandably provide this precautionary measure, i.e., "in no case (can petitioner) take out the children without the written consent of the mother."

And the bride wore white ... The quest for a pure, passionate marriage

Note: I first posted this article December 10, 2007 in my Salt and Light blog. With some revisions, I am reprinting it here because the most read and commented post in this blog is “Adultery, concubinage and psychological violence” and in view of the raging controversy over the “Integrated Reproductive Health and Population Reduction Bill”. Please surf to the PRO-Life Philippines website for its critique of HB 3773.
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Statistics on teenage pregnancies and sexual experiences

Dr. James Dobson, I think, said that a million teenagers in the US get pregnant every year. In the Philippines, according to the 2003 National Demographic and Health Survey, one out of four women become mothers by age 19 while four out of 10 women in the 20-24-year-old bracket have already engaged in sexual activity.
The 2002 Young Adult Fertility and Sexuality Study (YAFS 3) conducted by the UP Population Institute and the Demographic Research and Development Foundation, Inc. revealed the following alarming statistics:

1. Twenty-three percent of youth have engaged in premarital sex. A considerable number of sexually-active youth have had multiple partners, with almost half of the males (49%) and 11% of the females reporting more than one sex partner. One in five of the sexually-active males had paid for sex while 12% had accepted payment for sex. Prevalence of commercial sex is negligible among females, with less than one percent of the girls having paid or been paid for sex.

Over time, there has been an increase in the proportion of sexually active youth in the country, from 18 percent (among those aged 15-24) in 1994 to 23 percent in 2002. The age of first sex is also getting younger. Based on the 2002 survey, 1.2 percent of both young males and females have already engaged in sex before they turn 13 years old. Before reaching 18 however, the probability of engaging in sex increased sharply for males (28 percent) while 12 percent would have done so among females.
Previous analyses conducted by the UP Population Institute on the sexual behavior of Filipino youth have highlighted the increasing influence of peers on young people's decision whether or not to engage in sex. Peers have also been cited as important source of information regarding sex and reproductive health matters, along with the media.

2. While nearly all (95%) young adults have heard of HIV/AIDS, 73% believe there is no chance of them getting HIV/AIDS.

3. The percentage of young adults who think that AIDS is curable more than doubled between 1994 and 2002. In 1994, only 12.5% thought that there was a cure to HIV/AIDS. This increased to 28% in 2002.

4. More males than females are familiar with sexually-transmitted diseases (70% vs. 63%) although males are more likely to think that AIDS is curable (30% for males vs. 26% for females).

5. Thirty two per cent of Filipino teenagers (15-19 years old) knew that their single female friends are sexually active while 38 percent said that their single male friends have already engaged in sex. This interesting information provides yet another clue on the extent of sexual activity among Filipino teenagers.

In addition, their report on their friends' sexual activity also shows some degree of awareness on the possible consequences of sexual activity. They said that half of their female friends who have engaged in premarital sex got pregnant. Of this proportion, 4 out of 5 pushed through with the pregnancy and slightly more than half of those who went through with the pregnancy eventually married the father of their kids.

Among their unmarried male friends on the other hand, 4 in 10 claimed that their friends got somebody pregnant. Out of this number, 2 in 5 ended up marrying the mother of their kids.

I strongly support sexual abstinence and purity programs such as True Love Waits and Silver Ring Thing. One author whom I highly recommend to you (whether you are a mother or father, a teenager, a pastor, or youth director) is Dannah Gresh.

Resources on sexual purity before and during marriage by Dannah Gresh

Dannah’s websites are www.purefreedom.org, www.secretkeepergirl.com and www.dannahgresh.com. Her books on sexual purity before and during marriage are “And the Bride Wore White”, “Pursuing the Pearl”, and “Secret Keeper Girl”.

November 2006, I gave a lecture for the BMP-HELP pastors conference in Tagaytay City. Rushing home to Manila in the afternoon, I got to OMF Lit Bookstore in Boni Avenue, Mandaluyong just before 5 PM. From the love gift given to me by the pastors, I was able to buy at nearly seven hundred pesos the very last copy of “And the Bride Wore White”. Several months later, I gave this book as a graduation gift to the love of my life. She is the second most beautiful woman in the universe. Who is the most beautiful woman in the universe, you ask? Well, who else but movie actress Angel Locsin!

In the Purefreedom website, Dannah and her husband Bob, explain what their ministry to young men and women is all about:

It is the mission of Pure Freedom to equip men and women of all ages to live a vibrant life of purity, to experience healing from past impurity if it exists in their lives, and to experience a vibrant, passionate marriage which portrays the love Christ has for his Bride the church.(Ministry verse: Ephesians 5:31,32)

Pure Freedom provides resources with radically-unique approaches to focus on specific issues that teen girls and/or guys face in the area of purity and holiness. Our events, the hallmark of our ministry, are about sexual purity and yet they are much more about the totality of a life submitted to the will of God in a quest to enjoy the blessings of His plan.

We believe that the temptation to fail sexually comes in different forms for girls and for boys. We also believe that they will one day enjoy God's gift of sex within the confines of marriage for different reasons. Whereas the girls are primarily emotionally driven, the guys are primarily driven by sight. Because of this dichotomy, it is vital that we educate them separately and emphasize different areas of temptation.

In their seminars for young men and women, Dannah and Bob have expounded on the Bible’s principles on sexual purity through their discussion of the Hebrew word "yada". In their website, they explain that "yada" is used to both refer to holy sexuality as in that between Adam and Eve AND to refer to the holy knowing that a man can know with God. It speaks of the emotional and spiritual nature of a relationship.

Seven secrets to sexual purity

Dannah, in her book “And the Bride Wore White”, discusses the following secrets to maintaining sexual purity:

1. Purity is a process.
2. Purity dreams of its future.
3. Purity is governed by its value.
4. Purity speaks boldly.
5. Purity loves its Creator at any cost.
6. Purity embraces wise guidance.
7. Purity watches burning flames.

Dannah does not simply discuss things at a theoretical level. One of the very practical tips she gives in her book on how teenagers can stay sexually pure is to “stay public and stay vertical.”

The quest for a pure, passionate marriage

The second book by Dannah Gresh which I have read is “Pursuing the Pearl” (it was a gift from Bro. David Witta and his family from Massachusetts, USA). In this book, she discusses what she calls “The Enemy’s Fake Pearls” which are (1) status and stuff; (2) social acceptance; (3) giving up and starting over; (4) pride and dreams.

Locally, this book costs around four hundred pesos. That is quite steep, but what Dannah says in page pages 62 and 63 are worth the price of the book. She warns her readers, “Sexual impurity is a zero tolerance arena. You are on shaky ground if there are emotional bonds being created between you and another man (or your husband and another woman).” Dannah explains that these bonds begin with little things like:

• Innocently having lunch alone with a man
• Seeking advice from a man about personal issues, especially marital issues
• Seeking or accepting frequent praise or affirmation from the same man
• Being or becoming comfortable with being alone in an office or a home together
• Intentionally seeking out time to be with this man
• Manipulating your schedule to see him
• Spending time fantasizing about him

What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines

Summary: 1. Update as of September 30, 2016: In the 2014 case of “Grace Grande v. Patricio Antonio” G.R. No. 206248, the Supreme Court declared void Rule 7 (Requirements for the Child to Use the Surname of the Father) and Rule 8 (Effects of Recognition) of the Implementing Rules and Regulations of RA 9255. Thus, the Philippine Statistics Authority issued the Revised IRR, which became effective on April 9, 2016. Read below the revised guidelines on how illegitimate children can use their biological father’s surname and my critique of the guidelines. 2. Article 176 of the Family Code states: “Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.” 3. If the father does not recognize the child, the entry for middle name in the birth certificate must be left blank. (“Republic of the Philippines vs. Trinidad R.A. Capote”, February 2007) 4. The child is still illegitimate even if the biological father’s surname is used under RA 9255. The mother still has exclusive parental authority over the child. 5. RA 9255 uses the word “may” while its IRR uses “shall.” Because of the mandatory nature of the IRR, it has become a tool of oppression against women. If the biological father simply signs the birth certificate or issues a public or private document acknowledging the child, the child automatically will carry his surname, even without the mother’s knowledge or consent. Update as of June 10, 2014: Victory for mothers of illegitimate children The Supreme Court unanimously declared void Rule 7 and Rule 8 of the Implementing Rules and Regulations of RA 9255 (“Grace Grande v. Patricio Antonio” G.R. No. 206248, February 18, 2014). The Court said: RA 9255’s clear use of the word “may” in amending Art. 176 of the Family Code shows that illegitimate children’s use of the father’s name is discretionary. Even if the biological father acknowledges his illegitimate children, he cannot force them to use his surname.

(Note: Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud.)

Article 176 of the Family Code as originally drafted and as approved by Pres. Corazon C. Aquino provided that illegitimate children had to use the maiden surname of the mother. But Republic Act 9255 amended Article 176 as follows (the boldfaced portion is the amendment):

Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. But illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.

The Office of the Civil Registrar General then issued in May 2004 the “Rules and Regulations Governing the Implementation of R.A. 9255” (or IRR for brevity).

Based on questions asked of me and my reading of RA 9255 and its implementing rules, there are several issues that need to be clarified and addressed:

If the father does not recognize the child, the entry for middle name must be left blank

1. In the case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, the Supreme Court ruled:

Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the father’s surname.

Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’ surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged child. (Emphasis by boldfacing supplied)

The Court reiterated this ruling in “Republic of the Philippines vs. Trinidad R.A. Capote,” G.R. No. 157043, February 2, 2007, 514 SCRA 76.

The child is still illegitimate even if the biological father’s surname is used

2. Contrary to what a lot of people believe, RA 9255 does not grant legitimacy to the child. Even if the biological father allows the use of his surname, the child still remains illegitimate. Parental authority still belongs to the mother, which means custody belongs to her. That is why Article 176 still distinguishes between the legitimes (share in the inheritance) of legitimate and illegitimate children.

Can RA 9255 be undone?

3. Some women informed me that they availed of RA 9255. Later on, these women had a falling out with the biological fathers and were no longer living together or communicating. The question I have been asked is, “Can RA 9255 be undone?” That is, can the child’s birth certificate be changed so that the surname will now be that of the mother?

My answer has been that the possible legal remedy is Rule 108 Cancellation or Correction of Entries in the Civil Registry (a petition under Rule 103 for change of name may also be possible). But the problem is that RA 9255 is for the benefit of children so that they will not bear the stigma of illegitimacy. The courts may therefore not be inclined to grant the correction or cancellation (although as of now, I have not have read or known of a court decision on this matter).

4. Even before RA 9255 took effect, biological fathers have signed the back of the birth certificate in order to admit their paternity. In keeping with Article 175 (in relation to Article 172), fathers, by signing the birth certificate, need no longer execute a separate document in order to acknowledge their illegitimate children. Meaning, the issue of support and inheritance was not tied to the issue of whether the child uses the father’s surname or not.

RA 9255 uses the word “may” while the IRR uses “shall”

Update as of June 10, 2014: Victory for mothers of illegitimate children The Supreme Court unanimously declared void Rule 7 and Rule 8 of the Implementing Rules and Regulations of RA 9255 (“Grace Grande v. Patricio Antonio” G.R. No. 206248, February 18, 2014). The Court said: RA 9255’s clear use of the word “may” in amending Art. 176 of the Family Code shows that illegitimate children’s use of the father’s name is discretionary. Even if the biological father acknowledges his illegitimate children, he cannot force them to use his surname.

5. Notice that RA 9255 uses the word “may” in the portion which reads “illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father.”

Lawyers and judges always differentiate between the words “may” (which denotes direction or permission) and the word “shall” (which denotes an obligatory or mandatory nature).

RA 9255’s IRR makes the use of the father’s surname automatic and mandatory

The IRR issued for RA 9255, however, uses the word “shall” rather than “may.” For example, Rule 7.1.1 states:

The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the back of the Certificate of Live Birth or in a separate document.

Under the IRR, if the father signs the birth certificate, then AUTOMATICALLY the child will carry his surname. Rule 8.2 also provides that “for births previously registered under the surname of the mother,” the following rule shall be followed:

Rule 8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or in a separate public document or in a private handwritten document, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth and the Register of Births as follows: "The surname of the child is hereby changed from (original surname) to (new surname) pursuant to RA 9255."

The original surname of the child appearing in the Certificate of Live Birth and Register of Births shall not be changed or deleted.

IRR of RA 9255 as a tool of oppression against women?

Update as of June 10, 2014: Victory for mothers of illegitimate children The Supreme Court unanimously declared void Rule 7 and Rule 8 of the Implementing Rules and Regulations of RA 9255 (“Grace Grande v. Patricio Antonio” G.R. No. 206248, February 18, 2014). The Court said: RA 9255’s clear use of the word “may” in amending Art. 176 of the Family Code shows that illegitimate children’s use of the father’s name is discretionary. Even if the biological father acknowledges his illegitimate children, he cannot force them to use his surname.

Where is the mother’s freedom of choice in what surname her illegitimate child will use? What if the woman decides to raise the child by her own without any help or support from the man? Moreover, Article 176 of the Family Code provides that an illegitimate child is under the sole parental authority of the mother. The decision of whether or not to use the father’s surname in the birth certificate rightfully belongs to the mother in keeping with her exclusive parental authority over the child.

Unknowingly or unintentionally, the people who crafted the IRR of RA 9255 made it as a tool of oppression against women. If the biological father simply signs the birth certificate or issues a public or private document acknowledging the child, the child automatically will carry his surname, even without the mother’s knowledge or consent.

For example, I know of a pregnant 18-year old girl. The girl’s family wisely refused to allow the the girl to marry the man (22 years old, jobless, and irresponsible). The family is taking care of the girl and planning to raise the baby by themselves without any help from the man. But based on the IRR of RA 9255, the man can create a lot of problems if he is able to sign the birth certificate OR if he simply issues a document acknowledging the child. Based on the mandatory nature of the IRR, the child will automatically carry his surname, despite whatever objections the girl and her family might have.

Another case: The illegitimate child was born in the 1990’s with the birth certificate carrying the mother’s maiden surname. The father signed the back of the birth certificate, but from the child’s birth, he never gave any financial support. The mother was forced to work overseas to support the child by herself.

Recently, upon coming back to the Philippines, she discovered that her child was under the custody of the biological father and was now using his surname. Why? The man and his family (who have now become interested in the child) submitted the requirements to the Local Civil Registrar. Under the mandatory nature of the IRR, the child is now using his surname, without the knowledge or permission of the mother!

Based on the letter and spirit of RA 9255, the woman should give her consent as to whether she wants or not her child to carry the man’s surname. The IRR is wrong because of its mandatory nature. Meaning, okay, let the man sign the birth certificate to acknowledge the child. That is for the benefit of the child with regards the issue of support and inheritance. But as to what surname that child will carry, the mother should be given the freedom to choose, whether to use the man’s surname or use her maiden surname.

Senators Loren Legarda and Ramon Revilla (the father, not the current senator) are some of the principal sponsors of RA 9255. The spirit and intent of RA 9255 are certainly commendable. But the IRR as it stands now makes RA 9255 a tool for oppressing women. Perhaps, our current senators should review the IRR and make the necessary and urgent clarification or revisions.

Senate Bill 718 by Sen. Ramon “Bong”Revilla: Mothers must give express consent before child’s surname can be changed to that of the father

Sen. Bong Revilla filed in 2007 Senate Bill 718 seeking to amend RA 9255. SB 718 states that mothers should give express prior consent to the use of the father’s surname. As Sen. Revilla’s press release explains,

“This bill aims to emphasize the primordial importance of the role of mothers when it comes to the surname of their illegitimate children. The proposed amendment, in recognition of the fact that mothers have the sole parental authority over their illegitimate children, mandates that mothers should give express prior consent to the use of the father’s surname, There is a danger that a father might use this right as leverage over the mother, either to avoid obligations or to impose unreasonable demands, and as a result undermine the parental authority of a mother over her illegitimate child.

Furthermore, the amendment seeks to negate the presumption that every mother is willing to assent to the use of the father’s surname and that such use is always for the best interest of the child. Bearing in mind the welfare of the illegitimate child, there may be instances where the mother strongly believes that her son or daughter’s well-being would be better protected if the surname of the father will not be used.”

The problem is, SB 718 has been “sleeping” in the Senate for the last three years. Moreover, it seems to me that the use of the word “may” in RA 9255 already indicates that the use of the father’s surname is not mandatory as the IRR has made it to be. Also, SB 718 does not address the issue of whether RA 9255 can be undone for those children whose surnames have already been changed without the consent of their mothers.

Without waiting for Sen. Legarda’s clarification, for Sen. Bong Revilla’s bill to become law, or for the NSO to act on this matter, women affected by this situation should go to court to seek relief. One option is to file a petition for declaratory relief under Rule 63 of the Rules of Court (please surf to the Chan Robles website for the Rules of Court). In layman’s terms, a petition for declaratory relief is asking the court to issue its legal opinion on whether the IRR exceeded the letter and intent of RA 9255. This petition can only be filed by a party who has not yet been adversely affected by the IRR.

In the case of mothers or children who have already been adversely affected by the IRR (that is, the child now carries the surname of the biological father despite the lack of knowledge or consent of the mother), a petition for declaratory relief is not the proper remedy. A petition for certiorari under Rule 65 of the Rules of Court may be the more appropriate remedy.

A more direct way of assailing the IRR of RA 9255 is by filing an “ordinary action for its nullification.” The Supreme Court in the 2006 case of Holy Spirit Homeowners Association vs. Defensor said:

“Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners’ allegation that “respondents are performing or threatening to perform functions without or in excess of their jurisdiction” may appropriately be enjoined by the trial court through a writ of injunction or a temporary restraining order.”

Revised IRR of RA 9255 (effective as of April 9, 2016); my critique of the guidelines

1. Some essential provisions:

Rule 3. What to File

The following documents shall be filed at the LCRO or PFSP for registration:

3.1 Affidavit of Admission of Paternity

3.2 Private Handwritten Instrument

3.3 Affidavit to Use the Surname of the Father

Rule 8. Effects of Recognition

8.1 As a rule, an illegitimate child not acknowledged by the father shall use the surname of the mother.

8.2 Illegitimate child acknowledged by the father shall use the surname of the mother if no AUSF is executed.

8.3 An illegitimate child aged 0-6 years old acknowledged by the father shall use the surname of the father, if the mother or the guardian, in the absence of the mother, executes the AUSF.

8.4 An illegitimate child aged 7 to 17 years old acknowledged by the father shall use the surname of the father if the child executes an AUSF fully aware of its consequence as attested by the mother or guardian.

8.5 Upon reaching the age of majority, an illegitimate child acknowledged by the father shall use the surname of his father provided that he executes an AUSF without need of any attestation.

2. My critique of the Revised IRR:

As you can see above, Rule 1 of the Revised IRR states that it applies to all illegitimate children born during the effectivity of R.A. No. 9255.

Issue: RA 9255 became effective on March 8, 2004. What about those illegitimate children who were born before this date? Why are they excluded from the right that’s provided by RA 9255?

The article “New rules give illegitimate child right to choose surname” (September 01, 2016) from NSO Aklan provides an explanation:

Likewise, [Engr. Antonet B. Catubuan, Chief Statistical Specialist] clarified that the revised IRR is only apply [sic] to all illegitimate children born on or after March 19, 2004, the effectivity of RA 9255, whether registered or not under the surname of the mother.

Catubuan added that illegitimate children born on August 3, 1988 to March 18, 2004 cannot use the surname of the father under RA 9255 but may still be acknowledged by the father through an Affidavit of Admission of Paternity (AAP) or Private Handwritten Instrument (PHI).

“A petition in court may be filed in order that the child can use the surname of the father if the child’s birth falls on the said dates,” Catubuan explained.

If the PSA Aklan official was quoted correctly, then I contend that the Revised IRR is legally flawed and may, like the old IRR, be challenged in court.

As you can see from the screenshot below, there’s nothing in RA 9255 that says that it’s only applicable to illegitimate children who were born between August 3, 1988 (date of effectivity of the Family Code of the Philippines) and the date the law becomes effective. The Revised IRR thus goes beyond the law that it’s supposed to implement and discriminates against illegitimate children who were born between August 3, 1988 and March 8, 2004.

It seems that the PSA has gone from one extreme to another. Under the old IRR (see Rule 8.2.1 as cited above), the PSA made the use of the father’s surname mandatory for all illegitimate children, even for those who were born before RA 9255 became effective. Now, with the Revised IRR, the PSA has excluded from the law’s coverage those illegitimate children who were born between August 3, 1988 and March 8, 2004.

If you are an illegitimate child who was born between August 3, 1988 and March 8, 2004, and you want to use your biological father’s surname under RA 9255, I suggest that you file a petition for declaratory relief with the Regional Trial Court in your city against the PSA and its Revised IRR.

(Click the graphic to view a much bigger copy)

Hold Departure Orders for OFWs under RA 9262

I came across yesterday a 2007 Philippine Daily Inquirer news story on the numerous cases of the breakup of families of OFWs. In that story titled “Family abandonment cases among OFWs on the rise” the author Veronica Uy mentioned that “the Center for Migrant Advocacy is calling for more legal, economic, and social support for these abandoned families.”

Uy also stated in her article that a particular NGO deals with numerous cases of “family members requesting that an OFW’’s departure be held in connection with a claim for support, noting this was often the only recourse the families had because they lacked resources to file cases against the errant provider.” The NGO, as reported by Uy, however said that “any hold departure order from the Bureau of Immigration needs a preceding order from the Department of Justice.”

Who can issue a Hold Departure Order?

Several things regarding a Hold Departure Order (HDO) need to be clarified:

1. According to the guidelines of the Supreme Court, only judges of Regional Trial Courts can issue an HDO. Judges of MTCs (Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities) are no longer allowed to issue HDOs. But if there is a pending case with the MTC, the complainant can submit to the Bureau of Immigration certified copies of the complaint and other documents and the BID can issue an HDO.

2. Section 37 of RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” expressly provides that the court can issue an HDO as part of a petition for a Protection Order (whether Temporary or a Permanent Protection Order). Section 36, Rule V of the Implementing Rules and Regulations of RA 9262 implements Section 37 of RA 9262.

Upon the filing of a petition for a TPO or a PPO, the judge can on that same day issue an HDO to prevent the respondent (like an OFW leaving for abroad) from leaving the country while the petition is being heard. Please read my previous posts on RA 9262 provisions on Protection Orders and Support for abandoned woman and family .

Ready made forms for petitions under RA 9262; exemption from payment of filing fees

Under the Supreme Court guidelines for RA 9262, there are ready made forms for a petition for a Protection Order and even an Affidavit of Indigency which families of OFWs can avail of.

The ready made form for a Protection Order has a checklist of items which the petitioner needs only to mark. On the other hand, the Affidavit of Indigency states that either the petitioner has no property or is unemployed, OR that the petitioner is employed but currently does not have the means to retain the services of a private lawyer. Based on this affidavit, the petitioner is exempted from the payment of filing fees. Under the guidelines, the court is required to appoint a counsel de officio (in layman’s terms, the services of the lawyer is free) to help the petitioner.

The Office of the Clerk of Court is mandated to help petitioners

Under the Supreme Court guidelines, the Office of the Clerk of Court (OCC) is mandated to help the petitioner in filling out the forms in strict confidentiality and in actually filing the petition. I have been told however that in several instances, the OCC has referred petitioners to go to the Public Attorneys Office (PAO). In these instances, I have told these women-petitioners to gently but forcefully remind the OCC of its duties under the Supreme Court guidelines. In extreme cases, I have told some women to file administrative cases with the Supreme Court against Clerks of Court who refused to help them.