Mandatory drug testing constitutional for students and employees but not for senators and persons accused of crimes

The Supreme Court, through a unanimous decision dated November 3, 2008 and penned by Justice Presbitero J. Velasco, Jr, declared as unconstitutional the provisions of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) that require mandatory drug testing of candidates for senator and persons accused of crimes.

The Court, however, upheld the constitutionality of the law insofar as random drug testing for secondary and tertiary school students, as well as for officials and employees of public and private offices, is concerned.

Separate petitions questioning the constitutionality of these portions of RA 9165 were filed by Sen. Aquilino Pimentel Jr, Atty. Manuel Laserna and the Social Justice Society. Sen. Pimentel also questioned the validity of COMELEC Resolution No. 6486, alleging that the same created an additional qualification for candidates for senators in addition to those provided in the 1987 Constitution by requiring that the candidates be certified as drug-free.

Highlights of the Supreme Court’s decision

1. The unconstitutionality of Sec. 36(g) of RA 9165 “is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.”

In declaring Sec. 36(g) unconstitutional, the Court said that the same “unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed senator-elect,” adding that the assailed provision of the law and the COMELEC Resolution “add another layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate.”

2. There is no valid justification for mandatory drug testing for persons accused of crimes, as required by Sec. 36(f) of the law, as a mandatory drug testing in the case of persons charged with a crime before the prosecutor’s office “can never be random or suspicion-less.”

The Court said, “When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will.” To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.”

3. Mandatory drug testing of secondary and tertiary school students is constitutional. The Court, taking note of the proliferation of prohibited drugs in the country which threaten “the well-being of the people, particularly the youth and school children who usually end up as victims,” stated that until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools “is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected.”

4. Mandatory but random drug testing is justifiable for officers and employees of public and private offices. As the Court ruled, “The need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest under the premises.”

Safeguards against the violation of rights of students and employees

The Court, taking into account the reduced expectation of privacy on the part of employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of random drug testing, held that the challenged drug test requirement for those employed in public and private offices is, under the limited context of the case, reasonable and constitutional.

The Court also noted that Sec. 94 of RA 9165 charges the Dangerous Drugs Board to issue, in consultation with the Departments of Health, Interior and Local Government, Education, and Labor and Employment, among other agencies, the Implementing Rules and Regulations (IRR) necessary to enforce the law. The Court ruled that “in net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.”

Heirs and inheritance (Part 10): Can nephews and nieces inherit from their grandparents or from their unmarried uncles or aunts?

Summary / Definition of terms: 1. The law that governs issues on inheritance is the New Civil Code of the Philippines (NCC), not the Family Code. “Testate or testamentary succession” refers to situations where the person dies leaving a last will. “Legal or intestate succession” refers to situations where the person died without a last will. The person who dies and whose property is to be divided is called the “decedent.” The person who dies leaving a last will is called the “testator.” 2. If a person dies intestate (without a will), without a spouse, parents, legitimate or illegitimate children, then the collateral relatives like brothers and sisters, nephews and nieces will inherit. 3. Right of representation: Nephews and nieces already alive when the aunt or uncle died can inherit by representing their predeceased parents. 4. Iron barrier: If the nephews and nieces are illegitimate, then they are prohibited by Article 992 NCC from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents. 5. Grandnephews and grandnieces in the collateral line cannot inherit by right of representation.

I have been asked several times about the right of nephews and nieces to inherit from their deceased grandparents or unmarried uncles or aunts. For example, I received this inquiry several months ago:

I have an aunt, Rowena, with no surviving ascendants, who never married, and has no legitimate or illegitimate children. She is survived by a younger sister, Josefa, a widower. Rowena’s other siblings, two brothers and another sister, have died.

All of Rowena’s siblings, Josefa and the three deceased, have children.

In case Rowena dies, who will inherit her estate? Josefa alone? Or Josefa jointly with the children of Rowena’s deceased brothers and sisters (meaning the nephews and nieces)?

The New Civil Code of the Philippines (NCC), not the Family Code, governs the issues on inheritance. Testate or testamentary succession refers to situations where the person dies leaving a will (or testament). Legal or intestate succession refers to situations where the person died without a will. The person who dies and whose property is to be divided is called the decedent. The person who dies leaving a will is called the testator. The specific laws on inheritance are:

Title IV. Succession (Articles 774 up to 1105)
Chapter 2. Testamentary Succession (Articles 774 up to 959)
Chapter 3 Legal or Intestate Succession (Articles 960 up to 1014)
Chapter 4. Provisions Common To Testate and Intestate Successions (Articles 1015 up to 1105)

If a person dies intestate, without a spouse, parents, legitimate or illegitimate children, then the collateral relatives (brothers and sisters, nephews and nieces) will inherit

Articles 1003 to 1010 are the NCC’s governing rules on the right of collateral relatives to inherit when a person dies intestate (without a last will):

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.

Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood.

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

The “iron barrier” between the legitimate and illegitimate sides of the family

Update as of September 15, 2019: The Supreme Court is set to discuss Article 992 of the Civil Code which says an illegitimate child has no right to inherit from the legitimate relatives of his father or mother. Supreme Court tackles inheritance rights of illegitimate children Experts to SC: Strike down law that discriminates vs illegitimate children

Article 992 of the NCC states:

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

This is known as the “iron barrier” that separates the legitimate and illegitimate sides of a family. Thus, in the example I cited at the top of this post, if the nephews and nieces are illegitimate, then they are prohibited by Article 992 from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents.

This barrier may sound harsh and unfair to some people. For a fuller discussion of the “iron barrier,” please read the Supreme Court decision in Anselma Diaz vs. IAC, G.R. No. L-66574 February 21, 1990.

Right of representation

Coming back to the question posted above, can these nephews and nieces whose parents predeceased (died before) their aunt Rowena died have the right to inherit from her? The legal issue here is the right of representation that is governed by Articles 970 to 977 of the New Civil Code of the Philippines (NCC). Let’s take note first of Article 1025 NCC which states:

“In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41.”

The wording of Article 1025 has caused some confusion. A lot of lawyers will tell you that these nephews and nieces do not have the right to inherit since their parents predeceased the aunt. These lawyers will emphasize the phrase “no exception” as discussed in the book “Civil Code of the Philippines Annotated, Volume III, Wills and Succession” by Justice Edgardo Paras. As Justice Paras says in page 474 of his book:

“Even in case of representation, the representative must already be alive or at least conceived at the time the succession opens. He himself must be capable of succeeding the decedent.”

Also, civil law expert Desiderio P. Jurado says in pages 480 and 481 of his book “Comments and Jurisprudence on Succession” that “it is essential that the representative must be living at the moment the succession opens.”

Nephews and nieces already alive when the aunt or uncle died can inherit by representing their predeceased parents

The proper interpretation of Article 1025 is this:

Were the nephews and nieces already alive when the succession opened, that is, when the aunt died? If yes, then they have the right to inherit by representing their parents. They will inherit together with the surviving brothers and sisters of the aunt. Their share is whatever the share of each brother or sister, to be divided equally among them.

For another example, let’s say there are five brothers and sisters A, B, C, D and E. Then A died before E, leaving four children who are all alive at the time their aunt E died. Let’s call the four children (nephews and nieces of E) as U,V, W and X. Let’s say that each of the brothers and sisters (including A who predeceased E) is entitled to Php 500,000. as their share in the inheritance on a per capita basis. The four children (the nephews and nieces) will then divide among themselves the Php 500,000. share of A on a “per stirpes” basis.

“Per stirpes” and “per capita” division of the inheritance

The “per stirpes” basis means that the four children’s individual shares will not be equal to the share of the remaining siblings. The NCC speaks of shares “per capita” and “per stirpes.” The four siblings (A, B,C and D) are entitled to inherit from E on a per capita basis. Since A has died, his children (nephews and nieces U,V, W and X) will inherit by right of representation of their father A. Their share in the inheritance will be on a per stirpes basis.

In simple terms, the shares of the siblings (B, C and D) who are still alive are greater than that of the nephews and nieces U,V, W and X. This is because they will inherit fully their share while the nephews and nieces will divide among themselves the respective share that was supposed to go to A.

Grandnephews and grandnieces cannot inherit by right of representation (collateral line)

As I said, the right of representation is discussed in Articles 970 to 977 of the NCC. What about grandnephews and grandnieces? Well Article 972 provides that, in the collateral line, the right of representation extends only to nephews and nieces. In other words, grandnephews and grandnieces cannot inherit by right of representation from their unmarried great-uncles or great-aunts.

On a related issue, can great-grandchildren inherit from their great-grandparent by right of representation? Yes, as long as they are not excluded by the “nearer excludes farther” principle, and that they were already alive when the great-grandparent died. This principle means that if the father or mother of these great-grandchildren are still alive, the father or mother will inherit because they are nearer in degree to the great-grandparent.

Example of testate succession (inheritance through a will)

Situation: the unmarried aunt or uncle has a surviving parent, two legitimate siblings and several illegitimate siblings, and he/she wants to have a last will.

In intestate succession, the law provides who the compulsory heirs are (that is, who are legally entitled to inherit). In testate succession, the testator cannot simply give his or her properties to anyone. The NCC enumerates who the compulsory heirs are; they cannot be deprived of their legitime except in valid cases of disinheritance (please read my posts on disinheriting children and descendants, legitimate as well as illegitimate and disinheriting your spouse).  

Under Article 887, the following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

Thus, in the situation I described above, the only compulsory heir of the unmarried aunt or uncle is his or her surviving parent. The legitimate and illegitimate siblings are not compulsory heirs and therefore can be left out in the will.

What if the unmarried uncle or aunt wants to give these siblings (or some other persons) something? In this situation, under Article 889 NCC, the unmarried uncle or aunt must give 50% of the properties to his or her compulsory heir (the surviving parent) as the legitime. The remaining 50% is called the free portion and the testator can give this to whoever he or she wants to, with certain exceptions provided under Article 1027 NCC. Please read Articles 866 to 914 NCC for an enumeration of the legitimes and compulsory heirs.

Questioning the legitimacy of a child, simulation of birth, cancellation of birth certificates

Articles 164 and 167 of the Family Code establish the legitimacy of a child born during a marriage:

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

Grounds for questioning the legitimacy of a child

Article 166 of the Family Code provides for the grounds for impugning (questioning) the legitimacy of a child:

Art. 166. Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

Periods within which to question the legitimacy of a child; who may question legitimacy

Articles 170 and 171 provide for the periods within which the court action for questioning the legitimacy of a child should be filed and the parties who can file such action:

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.

Can the action to question the legitimacy of a child be filed beyond the periods provided by Article 170?

This question was raised in the 2000 case of “Teofista Babiera, petitioner, vs. Presentacion B. Catotal, respondent.” The Supreme Court clarified that:

1. Articles 170 and 171 of the Family Code apply to instances in which the father impugns the legitimacy of his wife’s child. The provisions, however, presuppose that the child was the undisputed offspring of the mother.

These articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. These articles do not contemplate a situation where a child is alleged not to be the child of nature or biological child of a certain couple.

2. A birth certificate may be ordered cancelled upon adequate proof that it is fictitious. Thus, void is a certificate which shows that the mother was already fifty-four years old at the time of the child's birth and which was signed neither by the civil registrar nor by the supposed mother. Because her inheritance rights are adversely affected, the legitimate child of such mother is a proper party in the proceedings for the cancellation of the said certificate.

Facts of the case

Briefly, Presentacion B. Catotal (or Presentacion, for brevity) questioned the authenticity of the birth certificate of Teofista Babiera (Teofista for brevity) as to the identity of her biological parents, Eugenio and Hermogena Babiera. Presentacion claimed that Teofista, instead of being her biological sister, was actually the child of a house helper who made it appear in the birth certificate that Teofista was the Babiera couple’s offspring.

Presentacion claimed that the birth certificate of Teofista Guinto was void ab initio, as it was totally a simulated birth, the signature of informant forged, and it contained false entries, to wit:

(a) The child is made to appear as the legitimate child of the late spouses Eugenio Babiera and Hermogena Cariñosa, when she is not;

(b) The signature of Hermogena Cariñosa, the mother, is falsified/forged. She was not the informant; (c) The family name BABIERA is false and unlawful and her correct family name is GUINTO, her mother being single;

(d) Her real mother was Flora Guinto and her status, an illegitimate child;

(e) The birth certificate was patently a simulation of birth, since it was clinically and medically impossible for the supposed parents to bear a child in 1956 because of the age of the alleged parents, Hermogena being 54 years old and the Eugenio being 65 years old.

Presentacion asked the court to declare the certificate of birth of Teofista as void, invalid and ineffective and for the cancellation of her birth certificate.

Teofista, on the other hand, countered that:

(1) Presentacion’s petition stated no cause of action, it being an attack on the legitimacy of the respondent as the child of the spouses Eugenio Babiera and Hermogena Cariñosa Babiera;

(2) Presentacion had no legal capacity to file the instant petition pursuant to Article 171 of the Family Code; and

(3) The petition was barred by prescription in accordance with Article 170 of the Family Code.

Teofista also presented her Certificate of Birth, Certificate of Baptism, and Student's Report Card which showed she and Presentacion were sisters of the full-blood, they being the offspring of spouses Eugenio Babiera and Hermogena C. Babiera.

Ruling of the Court of Appeals

The CA held that the evidence adduced during trial proved that Teofista was not the biological child of Hermogena Babiera. It also ruled that no evidence was presented to show that Hermogena became pregnant in 1959. It further observed that she was already 54 years old at the time, and that her last pregnancy had occurred way back in 1941. The CA noted that the supposed birth took place at home, notwithstanding the advanced age of Hermogena and its concomitant medical complications. Moreover, Teofista’s Birth Certificate was not signed by the local civil registrar, and the signature therein, which was purported to be that of Hermogena, was different from her other signatures.

The CA also deemed inapplicable Articles 170 and 171 of the Family Code, which stated that only the father could impugn the child's legitimacy, and that the same was not subject to a collateral attack. It held that said provisions contemplated a situation wherein the husband or his heirs asserted that the child of the wife was not his. In this case, the action involved the cancellation of the child’s Birth Certificate for being void ab initio on the ground that the child did not belong to either the father or the mother.

Ruling of the Supreme Court (excerpts)

The Court, in affirming the CA decision, explained that:

1. Article 171 of the Family Code is not applicable to the present case. A close reading of this provision shows that it applies to instances in which the father impugns the legitimacy of his wife’s child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner.

In other words, the prayer herein is not to declare that Teofista is an illegitimate child of Hermogena, but to establish that the former is not the latter's child at all. Verily, the present action does not impugn Teofista’s filiation to Spouses Eugenio and Hermogena Babiera, because there is no blood relation to impugn in the first place.

2. Teofista contends that the action to contest her status as a child of the late Hermogena Babiera has already prescribed. She cites Article 170 of the Family Code which provides the prescriptive period for such action.

This argument is bereft of merit. The present action involves the cancellation of Teofista’s Birth Certificate; it does not impugn her legitimacy. Thus, the prescriptive period set forth in Article 170 of the Family Code does not apply. Verily, the action to nullify the Birth Certificate does not prescribe, because it was allegedly void ab initio.

3. Teofista argues that the evidence presented, especially Hermogena’s testimony that petitioner was not her real child, cannot overcome the presumption of regularity in the issuance of the Birth Certificate.

While it is true that an official document such as petitioner’s Birth Certificate enjoys the presumption of regularity, the specific facts attendant in the case at bar, as well as the totality of the evidence presented during trial, sufficiently negate such presumption.

First, there were already irregularities regarding the Birth Certificate itself. It was not signed by the local civil registrar. More important, the Court of Appeals observed that the mother’s signature therein was different from her signatures in other documents presented during the trial.

Second, the circumstances surrounding the birth of petitioner show that Hermogena is not the former's real mother. For one, there is no evidence of Hermogena’s pregnancy, such as medical records and doctor’s prescriptions, other than the Birth Certificate itself. In fact, no witness was presented to attest to the pregnancy of Hermogena during that time. Moreover, at the time of her supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have given birth at such a late age, it was highly suspicious that she did so in her own home, when her advanced age necessitated proper medical care normally available only in a hospital.

The most significant piece of evidence, however, is the deposition of Hermogena Babiera which states that she did not give birth to petitioner, and that the latter was not hers nor her husband Eugenio’s.

Relying merely on the assumption of validity of the Birth Certificate, Teofista has presented no other evidence other than the said document to show that she is really Hermogena’s child. Neither has she provided any reason why her supposed mother would make a deposition stating that the former was not the latter's child at all.

All in all, we find no reason to reverse or modify the factual finding of the trial and the appellate courts that Teofista was not the child of Eugenio and Hermogena Baviera.

Notes: The Supreme Court reiterated these rulings in the 2001 case of Lee et al vs. Court of Appeals et al.

The picture at the top of this post is from ChristianPhotos.Net (Free High Resolution Photos for Christian Publications).

Sexual infidelity or promiscuity does not constitute psychological incapacity

In the case of David B. Dedel Versus Court of Appeals And Sharon L. Corpuz-Dedel a.k.a. Jane Ibrahim decided in 2004, the Supreme Court ruled that:

1. Sexual infidelity or promiscuity does not constitute psychological incapacity;

2. Emotional immaturity and irresponsibility cannot be equated with psychological incapacity.

3. The trial court does not have authority to dissolve a church marriage since that authority is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church.

The Court also clarified the differences between the grounds for declaration of nullity of marriage and for legal separation.

Facts of the case

1. Petitioner David B. Dedel (“David”) met respondent Sharon L. Corpuz Dedel (“Sharon”) while he was working in the advertising business of his father. The acquaintance led to courtship and romantic relations, culminating in the exchange of marital vows before the City Court of Pasay on September 28, 1966. The civil marriage was ratified in a church wedding on May 20, 1967.

The union produced four children, namely: Beverly Jane, born on September 18, 1968; Stephanie Janice born on September 9, 1969; Kenneth David born on April 24, 1971; and Ingrid born on October 20, 1976. The conjugal partnership, nonetheless, acquired neither property nor debt.

2. David alleged that during the marriage, Sharon turned out to be an irresponsible and immature wife and mother. She had extra-marital affairs with several men: a dentist in the Armed Forces of the Philippines; a Lieutenant in the Presidential Security Command and later a Jordanian national.

Sharon was once confirmed in the Manila Medical City for treatment by Dr. Lourdes Lapuz, a clinical psychiatrist. David alleged that despite the treatment, Sharon did not stop her illicit relationship with the Jordanian national named Mustafa Ibrahim, whom she married and with whom she had two children. However, when Mustafa Ibrahim left the country, Sharon returned to David bringing along her two children by Ibrahim. David accepted her back and even considered the two illegitimate children as his own. Thereafter, on December 9, 1995, Sharon abandoned David to join Ibrahim in Jordan with their two children. Since then, Sharon would only return to the country on special occasions.

3. Finally, giving up all hope of a reconciliation with Sharon, David filed on April 1, 1997 a petition seeking the declaration of nullity of his marriage on the ground of psychological incapacity, as defined in Article 36 of the Family Code, before the Regional Trial Court of Makati City, Branch 149. Summons was effected by publication in the Pilipino Star Ngayon, a newspaper of general circulation in the country considering that Sharon did not reside and could not be found in the Philippines.

David presented Dr. Natividad A. Dayan, who testified that she conducted a psychological evaluation of petitioner and found him to be conscientious, hardworking, diligent, a perfectionist who wants all tasks and projects completed up to the final detail and who exerts his best in whatever he does.

On the other hand, Dr. Dayan declared that Sharon was suffering from Anti-Social Personality Disorder exhibited by her blatant display of infidelity; that she committed several indiscretions and had no capacity for remorse, even bringing with her the two children of Mustafa Ibrahim to live with petitioner. Such immaturity and irresponsibility in handling the marriage like her repeated acts of infidelity and abandonment of her family are indications of Anti-Social Personality Disorder amounting to psychological incapacity to perform the essential obligations of marriage.

4. After trial, the Makati City RTC granted the petition, declaring the civil and church marriages between David and Sharon celebrated on September 28, 1966 and May 20, 1967 null and void on the ground of psychological incapacity on Sharon’s part to perform the essential obligations of marriage under Article 36 of the Family Code

5. The Office of the Solicitor General (OSG) appealed the decision to the Court of Appeals. The CA set aside the judgment of the Makati City trial court and ordered the dismissal of the petition for declaration of nullity of marriage.

When his Motion for Reconsideration was denied, David then appealed to the Supreme Court. The SC upheld the decision of Court of Appeals by stating:

Sharon's sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity or sexual promiscuity.

Ruling of the Supreme Court (excerpts)

1. The main question for resolution is whether or not the totality of the evidence presented is enough to sustain a finding that respondent is psychologically incapacitated. More specifically, does the aberrant sexual behavior of respondent adverted to by petitioner fall within the term “psychological incapacity.”

2. “Psychological incapacity” should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.

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 of inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate.

3. The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code.

If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.

4. Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinion of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable.

5. The difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. In this case, Sharon’s sexual infidelity can hardly qualify as being mentally or psychically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof. It appears that Sharon’s promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children.

6. At best, the circumstances relied upon by petitioner are grounds for legal separation under Article 55 of the Family Code. However, we pointed out in Marcos v. Marcos that Article 36 is not to be equated with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. In short, the evidence presented by David refers only to grounds for legal separation, not for declaring a marriage void.

7. We likewise agree with the Court of Appeals that the trial court has no jurisdiction to dissolve the church marriage of David and Sharon. The authority to do so is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church.

8. All told, we find no cogent reason to disturb the ruling of the appellate court. We cannot deny the grief, frustration and even desperation of David in his present situation. Regrettably, there are circumstances, like in this case, where neither law nor society can provide the specific answers to every individual problem. While we sympathize with David’s marital predicament, our first and foremost duty is to apply the law no matter how harsh it may be.

"Irreconcilable differences” not a ground for declaring a marriage null and void

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.”

In the United States, almost all states have what is known as “no-fault divorce law.” All that the petitioner has to do to get a divorce is to state that the spouses have irreconcilable differences. Here in the Philippines, our Supreme Court in Juanita Carating-Siayngco vs. Manuel Siyangco ruled that “irreconcilable differences” cannot be used as ground for declaring a marriage null and void under Article 36 (“psychological incapacity”) of the Family Code.

The facts of the case

1. Petitioner Juanita Carating-Siayngco and respondent Manuel were married at civil rites on 27 June 1973 and before the Catholic Church on 11 August 1973. After discovering that they could not have a child of their own, the couple decided to adopt a baby boy in 1977, who they named Jeremy.

2. On 25 September 1997, or after twenty-four (24) years of married life together, respondent Manuel filed for the declaration of its nullity on the ground of psychological incapacity of petitioner Juanita.

He alleged that all throughout their marriage, his wife exhibited an over domineering and selfish attitude towards him which was exacerbated by her extremely volatile and bellicose nature; that she incessantly complained about almost everything and anyone connected with him like his elderly parents, the staff in his office and anything not of her liking like the physical arrangement, tables, chairs, wastebaskets in his office and with other trivial matters; that she showed no respect or regard at all for the prestige and high position of his office as judge of the Municipal Trial Court; that she would yell and scream at him and throw objects around the house within the hearing of their neighbors; and that she cared even less about his professional advancement as she did not even give him moral support and encouragement.

3. Manuel further alleged that Juanita’s psychological incapacity arose before marriage, rooted in her deep-seated resentment and vindictiveness for what she perceived as lack of love and appreciation from her own parents since childhood and that such incapacity is permanent and incurable and, even if treatment could be attempted, it will involve time and expense beyond the emotional and physical capacity of the parties; and that he endured and suffered through his turbulent and loveless marriage to her for twenty-two (22) years.

4. In her Answer, petitioner Juanita alleged that respondent Manuel is still living with her at their conjugal home in Malolos, Bulacan; that he invented malicious stories against her so that he could be free to marry his paramour; that she is a loving wife and mother; that it was respondent Manuel who was remiss in his marital and family obligations; that she supported respondent Manuel in all his endeavors despite his philandering; that she was raised in a real happy family and had a happy childhood contrary to what was stated in the complaint.

5. The Family Court denied Manuel’s petition declaration of nullity of his marriage to Juanita. On appeal, the Court of Appeals reversed the lower court’s decision and granted Manuel’s petition. The Supreme Court however reversed the CA and held that:

“We are not downplaying the frustration and misery respondent Manuel might be experiencing in being shackled, so to speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem.”

The Supreme Court ruling (excerpts)

1. From the totality of the evidence adduced by both parties, we have been allowed a window into the Siayngco’s life and have perceived therefrom a simple case of a married couple drifting apart, becoming strangers to each other, with the husband consequently falling out of love and wanting a way out.An unsatisfactory marriage, however, is not a null and void marriage. Mere showing of “irreconcilable differences” and “conflicting personalities” in no wise constitutes psychological incapacity. As we stated in Marcos v. Marcos:

Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifests themselves. It 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.

We are not downplaying the frustration and misery respondent Manuel might be experiencing in being shackled, so to speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem.

2. Whether or not psychological incapacity exists in a given case calling for the declaration of the nullity of the marriage depends crucially on the facts of the case.

3. The burden of proof to show the nullity of marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family.

4. The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the trial court’s decision.

Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will.

All’s well that ends well

October and November, I attended four Saturdays of Mandatory Continuing Legal Education seminars sponsored by the IBP CALMANA. One of the MCLE lecturers, Judge Marissa Guillen of Makati City, informed the seminar participants that the parties in this case (Manuel and Juanita) have reconciled and are now a totally-devoted couple. Amor omnia vincit!

Rights and obligations of husbands and wives from the Biblical standpoint and the Family Code of the Philippines

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

Anyway, let’s proceed from this romantic, mushy (this is redundant, right?) stuff about “love” and get on with the nitty-gritty details of the rights and obligations between husbands and wives. As “Insight for Living” Bible teacher Chuck Swindoll once said, “The basis of a good marriage is not love; it is commitment.” What he’s saying is that love is not a matter of the emotions, but of the will, of volition (this is really redundant, right?)

You might want to review my article “Love Potion No. 9” where I wrote about dopamine, oxytocin, and vasopressin. These chemicals produced by the human body and which some people have termed as the “cuddle chemicals” are believed responsible for that mysterious thing called love.

After the Family Code primer immediately below, I will discuss what the Bible says about rights and duties of husbands and wives, okay?

What are the rights and obligations of spouses under the Family Code?

The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (Art. 68, Family Code of the Philippines)

What if one spouse refuses to comply with his or her marital obligations as provided under Art. 68, can the offended spouse legally compel him to come home and comply with such obligations?

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

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

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

Who decides on the family domicile?

The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. (Art. 69)

Article 68 states that the spouses are obliged to live together. Are there exceptions?

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (2nd paragraph, Art.69)

Who is responsible for the support of the family?

The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. (Art. 70)

Who manages the household?

The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70.

What if the husband or the wife neglects his or her duties to the family?

When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (Art. 72)

Under RA 9262 or the “Anti-Violence Against Women and their Children Act of 2004”, the wife can petition the Family Court where she resides for a Protection Order.

Can the wife exercise her profession or engage in business even without the permission of her husband?

Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. (Art.73)

What if there is disagreement between the spouses?

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper; and

(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.

If the husband refuses unjustifiably to allow his wife to exercise her profession or engage in business, what are the rights of the wife?

RA 9262, under paragraph (4) of Section 5 lists this situation as a act of violence against a woman. The paragraph penalizes the man (husband or live-in partner) if he “prevents the woman from engaging in any legitimate profession, occupation, business or activity or controls the victim's own money or properties, or solely controls the conjugal or common money, or properties.”

Rights and obligations of husbands and wives
from the Biblical standpoint

Ephesians 5:21 up to 33 outline the rights and obligations of husbands and wives:

21. Submitting yourselves one to another in the fear of God.
22. Wives, submit yourselves unto your own husbands, as unto the Lord.
23. For the husband is the head of the wife, even as Christ is the head of the church: and he is the saviour of the body.
24. Therefore as the church is subject unto Christ, so let the wives be to their own husbands in every thing.
25. Husbands, love your wives, even as Christ also loved the church, and gave himself for it;
26. That he might sanctify and cleanse it with the washing of water by the word,
27. That he might present it to himself a glorious church, not having spot, or wrinkle, or any such thing; but that it should be holy and without blemish.
28. So ought men to love their wives as their own bodies. He that loveth his wife loveth himself.
29. For no man ever yet hated his own flesh; but nourisheth and cherisheth it, even as the Lord the church:
30. For we are members of his body, of his flesh, and of his bones.
31. For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh.
32. This is a great mystery: but I speak concerning Christ and the church.
33. Nevertheless let every one of you in particular so love his wife even as himself; and the wife see that she reverence her husband.

I Peter 3: 1-12 also state the rights and duties of husbands and wives toward each other:

1. Likewise, ye wives, be in subjection to your own husbands; that, if any obey not the word, they also may without the word be won by the conversation of the wives;
2. While they behold your chaste conversation coupled with fear.
3. Whose adorning let it not be that outward adorning of plaiting the hair, and of wearing of gold, or of putting on of apparel;
4. But let it be the hidden man of the heart, in that which is not corruptible, even the ornament of a meek and quiet spirit, which is in the sight of God of great price.
5. For after this manner in the old time the holy women also, who trusted in God, adorned themselves, being in subjection unto their own husbands:
6. Even as Sara obeyed Abraham, calling him lord: whose daughters ye are, as long as ye do well, and are not afraid with any amazement.
7. Likewise, ye husbands, dwell with them according to knowledge, giving honour unto the wife, as unto the weaker vessel, and as being heirs together of the grace of life; that your prayers be not hindered.
8. Finally, be ye all of one mind, having compassion one of another, love as brethren, be pitiful, be courteous:
9. Not rendering evil for evil, or railing for railing: but contrariwise blessing; knowing that ye are thereunto called, that ye should inherit a blessing.
10. For he that will love life, and see good days, let him refrain his tongue from evil, and his lips that they speak no guile:
11. Let him eschew evil, and do good; let him seek peace, and ensue it.
12. For the eyes of the Lord are over the righteous, and his ears are open unto their prayers: but the face of the Lord is against them that do evil.

In the area of relationships and marriage, there cannot be a more explosive and divisive issue than that of the headship of men and the submission of women. Sometime in the late 1990’s, I think, the Southern Baptist Convention issued an official statement asking women to “graciously submit” to their husbands. Needless to say, that statement was greeted with controversy, scorn and ridicule from different sectors and even from within the Convention itself. Feminist groups have been saying all these time that the Biblical injunction for women to submit to their husbands is an open invitation for spousal abuse.

If you want a thorough discussion of the Biblical doctrines of the headship of men and the submission of women, I recommend the following books to you:

1. “Strike the Original Match” by Chuck Swindoll; Multnomah Press © 1980; specifically the chapters entitled “Let’s Repair the Foundation” and “Bricks that Build a Marriage.”

2. “The Grace Awakening” also by Chuck Swindoll; Word Publishing, ©1996; specifically the chapter entitled “A Marriage Oiled by Grace”

3. “Together Forever” by Anne Kristin Caroll; Zondervan, © 1982 by Barbara J. Denis); specifically the chapter entitled “Who Wears the Pants?”

4. “Rocking the Roles” by Robert Lewis and William Hendricks; NavPress, ©1991; specifically the chapters entitled “The ‘S’ Word” and “The Masculine Counterpart to the ‘S’ Word.”

I have previously written about the headship of men and the submission of women, and you might want to re-read it. Part of that article reads as follows:

Lewis and Hendricks, while maintaining the traditional view of the headship of men and the submission of women, clarify however that submission is not a wife’s role. Rather, they say, submission is the wife’s loving response to her husband’s loving and sacrificial headship.

“Roles” and ‘responses” may sound like only semantics to you, but I encourage you to read “Rocking the Roles.” The most striking statement in this book about submission is found in page 135: “A biblically submissive wife’s focus is not on enabling wrong behavior, but in empowering her husband to pursue right behavior – to become the man God wants him to be, and the leader God wants him to be.”

I remember something Dr. James Dobson wrote in his classic book (highly recommended!) “Love Must Be Tough” about submission. Dobson said, “Being a spiritually submissive wife doesn’t mean being a doormat.”

Caroll, who writes her book out of the crucible of the pain of her divorce (and remarriage to the same guy) says on page 126, “Submission is freedom.”

During the wedding reception of a Filipino missionary couple bound for a Creative Access Nation, the groom wished out loud that his wife would submit to him. That brought about a lot of laughter among the guests. Well, Sir, please do keep in mind Lewis and Hendricks’ definition of submission and I’m sure your marriage will turn out okay. What’s their definition again? “A biblically submissive wife’s focus is not on enabling wrong behavior, but in empowering her husband to pursue right behavior – to become the man God wants him to be, and the leader God wants him to be.”

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.)