Procedures in RA 8552 domestic adoption and RA 8043 inter-country adoption; misinterpretation of RA 9523

Index of topics discussed in this post: Update as of March 2, 2019: Republic Act No. 11222 “Simulated Birth Rectification Act” Infertility and adoption Philippine laws on adoption Difference between adoption and simulation of birth Steps and court procedures in domestic adoption Why should an unwed mother adopt her own child? What if the unwed mother gets married subsequently to the biological father? Is the consent of the father of an illegitimate child required in adoption? Joint adoption by husband and wife is mandatory Is the adoptee’s right to inherit from both the adoptive and biological parents under the Family Code no longer true under RA 8552? Rescission (revocation) of adoption by adoptive parents no longer allowed under RA 8552 What about adoption by a wife and husband (one a former Filipino citizen and the other a natural-born citizen of another country)? Modified procedure for relative adoption cases under RA 8043 Misinterpretation and misunderstanding of RA 9523

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Infertility and adoption

Posted below are links to several articles by Sandra Glahn on the issues of infertility and adoption. Sandra knows from personal experience how difficult infertility can be; she endured a decade of infertility treatment that included multiple pregnancy losses, three failed adoptions, and an ectopic pregnancy. She quotes Alice Domar, Ph.D., director of the Mind/Body Center for Women’s Health in Beth Israel Deaconess Medical Center at Harvard Medical School: “The depression and anxiety experienced by infertile women are equivalent to that in women suffering from a terminal illness.”

• Positive Adoption Language
• Infertility: Myths and Facts
• A Heart's Desire: Encouragement for Couples Facing Infertility
• Infertility Tries Patients' Patience
• Facing the No-Baby Blues

Philippine laws on adoption

The Philippines has two laws on adoption, namely, (1) Republic Act 8552 Domestic Adoption Act of 1998; and (2) Republic Act 8043 Inter-Country Adoption Act of 1995. Portions of both laws have been amended by RA 9523 as I will discuss below.

RA 8552 amended Articles 183 up to 193 of the Family Code of the Philippines (FC) and is the governing law for Filipino citizens adopting other Filipinos (whether relatives or strangers), with some exceptions. Under Article 192 of the FC, the adopting couple may, under certain circumstances, ask for judicial rescission of the adoption. Rescission of adoption is no longer allowed under RA 8552.

RA 8043, on the other hand, governs the adoption of Filipinos by foreigners and is implemented by the Inter-Country Adoption Board. For more information on inter-country adoption, please surf to the websites of the ICAB and the Filipino Adoptees Network.

RA 8552 (and not RA 8043) applies when a foreigner who is married to a Filipino citizen seeks to adopt jointly with his/her spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse.

Difference between adoption and simulation of birth

Update as of March 2, 2019: Republic Act No. 11222 “Simulated Birth Rectification Act” became effective on February 21, 2019. The law basically provides for: 1. rectification of the falsified birth records, without any liability (whether criminal, civil, or administrative) for the persons responsible for the falsification; 2. administrative, rather than judicial, proceedings for the adoption of the child whose birth records were falsified. For more information, please surf to: “Simulated Birth Act or Republic Act No. 11222: The Twin Remedy of Adoption and Rectification” “Primer on Simulated Birth Rectification Act, Republic Act No. 11222”

Adoption is a legal process while simulation of birth is an illegal practice resorted to by a lot of Filipinos.

Adoption is the legal process by which a child becomes the legitimate child of the adopting person or persons.

Simulation of birth, on the other hand, occurs when a childless couple, for example, comes into possession of a baby or child, given to them by a midwife, an unwed mother, or a relative. This couple then applies for a birth certificate, making it appear that the baby or child is their biological offspring.

Under RA 8552, simulation of birth is a criminal offense punishable by eight years imprisonment and a fine of fifty thousand pesos.

Steps and court procedures in domestic adoption

The Supreme Court has issued guidelines in petitions for adoptions under RA 8552 and RA 8043. Basically, a petition for domestic adoption under RA 8552 will go through these steps:

1. A lawyer prepares the petition for the person or persons wanting to adopt. The petition includes documents like birth certificates, marriage certificate, proof of financial capacity (like ITR, bank deposit, etc), clearances (barangay, police, NBI, fiscal, court), and others as proof of good moral character, good health, etc.

2. Upon payment of the filing or docket fee, the petition is raffled to a Family Court (of the city nearest the place where the petitioner resides). If the petition is sufficient in form and substance, the court issues an order, usually within a month after the filing of the petition, setting the case for initial hearing and ordering the court social worker to conduct a case study and home visit.

3. The court order is published in a newspaper of general circulation once a week for three weeks. The newspaper is chosen by raffle conducted by the Office of the Clerk of Court, in compliance with a Supreme Court circular. If a small time newspaper wins in the raffle, the total cost for the publication could be as low as Php 7,000. But if a big time newspaper like the Bulletin or the Inquirer wins the raffle, the total cost could be as high as Php 50,000.

4. Before the initial hearing, the social worker conducts a case study and home visit. The social worker submits his investigation report and recommendations to the court before the initial hearing.

5. On the date of the initial hearing, the petitioner and the prospective adoptee must be present. The lawyer presents what are known as the jurisdictional facts (petition, proof of publication in newspaper, notice to the Office of the Solicitor General, etc).

6. If there is no opposition to the petition for adoption by any party, then the lawyer asks the court permission for an ex-parte presentation of evidence, done before only the court stenographer and the court appointed commissioner (the branch clerk of court). The court however can require presentation of evidence in open court. All in all, the case could take up to about a year to finish.

7. If the court decision is favorable and there is no appeal by any party, then the court issues a Certificate of Finality. The lawyer then coordinates with the Local Civil Registrar (of the town or city where the court is located, and the adoptee’s birthplace) and the National Statistics Office for the issuance of a new birth certificate bearing the petitioner’s surname.

Why should an unwed mother adopt her own child?

Legally speaking, the relationship between any unwed mother and her child is illegitimate. In order to legitimize the relationship between an unwed mother and the illegitimate child, the mother must file a petition under RA 8552, our domestic adoption law.

What if an unwed mother gets married subsequently to the biological father?

The legal remedy would not be adoption under RA 8552 but legitimation under Articles 177 to 182 of the Family Code (that is, if there were no legal obstacles when the child was conceived or born).

What if an unwed mother gets married to a man (not the biological father) who wants to adopt her child?

RA 8552 provides that husband and wife must adopt jointly. In this situation, the result would be (1) the relationship between the mother and the child will become legitimate, and (2) the man will acquire parental authority over the child.

Is the consent of the father of an illegitimate child required in adoption?

Section 9, paragraph (b) of RA 8552 states that the written consent of the biological parent/s is necessary. UP College of Law professor Danilo L. Concepcion in his article “Domestic Adoption: Law and Procedure” (IBP Journal, March 2009, Vol. 34, No. 1) states that the reason why RA 8552 requires such consent is that their parental authority over child (the prospective adoptee) will be terminated. Several women have e-mailed about this situation. Either they do not know where the biological father of their illegitimate children is or the father is making things difficult for them. One woman even told me that the biological father asked her for money in exchange for his written consent.

Prof. Concepcion argues (and I agree with him) that because an illegitimate child is under the sole parental authority of the mother under Article 176 of the Family Code, then the consent of the biological father is not necessary. Prof. Concepcion states that the problem is with the wording of the law. He says that, instead of “biological parent/s,” the law should have used “legal parent/s” instead.

What can women with illegitimate children do in this kind of situation? They can petition Congress to amend RA 8552 so that the written consent of the father should not be required. Or they can file a petition for declaratory relief before a competent court asking that the term “biological parent/s” be interpreted to mean “legal parent/s.”

Joint adoption by husband and wife is mandatory

Please take note that Section 7 of RA 8552 provides that a husband and wife shall jointly adopt. This is a mandatory requirement with the following exceptions:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.

The mandatory requirement is in consonance with the concept of joint parental authority over the child, which is the ideal situation. 7 As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.

Is the adoptee’s right to inherit from both the adoptive and biological parents under the Family Code no longer true under RA 8552?

The Family Code provisions on adoption have been superseded by RA 8552. While Article 189 of the Family Code specifically provides that the adoptee has the right to inherit from both the biological and adoptive parents, this provision does not appear in RA 8552. The law only states:

Sec. 18. Succession. — In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

It seems therefore that the right of an adopted child to inherit from both biological and adoptive parents under the Family Code has been repealed by RA 8552. But, in law, implied repeals are frowned upon. Thus, it may be argued that Article 189 of the Family Code is still good law.

For issues regarding succession (“inheritance” in layman’s term) and adoption under RA 8552, please read “Revisiting the Philippine Laws on Adoption: Issues on Succession” from the Ateneo Law Journal. Please also read the article on domestic adoption by UP Prof. Concepcion which I mentioned above. Prof. Concepcion holds the same view I have that those provisions of the Family Code that have not been expressly repealed by RA 8552 are still applicable.

Rescission (revocation) of adoption by adoptive parents no longer allowed under RA 8552

The Family Code allowed adoptive parents to apply for judicial rescission or revocation of the decree of adoption. For the child’s best interest, however, RA 8552 no longer allows rescission by the adoptive parents. Only the adopted child can ask for the revocation of the adoption.

What if the adopted child becomes wayward morally or ungrateful, or physically threatens the adoptive parents? The legal remedy is to disinherit the child; please read my article “Disinheriting children and descendants, legitimate as well as illegitimate”.

What about adoption by spouses where one is a former Filipino citizen and the other is a natural-born citizen of another country?

The Supreme Court decided this issue in the case of Republic of the Philippines vs. Toledano G.R. No. 94147 June 8, 1994. This case was decided under the provisions of the Family Code on adoption which have been superseded by RA 8043 and RA 8552. But the point of contention in this case (mandatory joint adoption by both husband and wife under Article 185 of the Family Code) has been carried over to RA 8552, specifically, Section 7.

The facts of the Toledano case

On February 21, 1990, in a verified petition filed before the Regional Trial Court of Iba, Zambales, private respondents spouses Clouse sought to adopt the minor, Solomon Joseph Alcala, the younger brother of private respondent Evelyn A. Clouse. In an Order issued on March 12, 1990, the petition was set for hearing on April 18, 1990. The said Order was published in a newspaper of general circulation in the province of Zambales and City of Olongapo for three (3) consecutive weeks.

The principal evidence disclose that private respondent Alvin A. Clouse is a natural born citizen of the United States of America. He married Evelyn, a Filipino on June 4, 1981 at Olongapo City. On August 19, 1988, Evelyn became a naturalized citizen of the United States of America in Guam. They are physically, mentally, morally, and financially capable of adopting Solomon, a twelve (12) year old minor.

Since 1981 to 1984, then from November 2, 1989 up to the present, Solomon Joseph Alcala was and has been under the care and custody of private respondents. Solomon gave his consent to the adoption. His mother, Nery Alcala, a widow, likewise consented to the adoption due to poverty and inability to support and educate her son.

Mrs. Nila Corazon Pronda, the social worker assigned to conduct the Home and Child Study, favorably recommended the granting of the petition for adoption.

Finding that private respondents have all the qualifications and none of the disqualifications provided by law and that the adoption will redound to the best interest and welfare of the minor, respondent judge rendered a decision on June 20, 1990, disposing as follows:

WHEREFORE, the Court grants the petition for adoption filed by Spouses Alvin A. Clouse and Evelyn A. Clouse and decrees that the said minor be considered as their child by adoption. To this effect, the Court gives the minor the rights and duties as the legitimate child of the petitioners. Henceforth, he shall be known as SOLOMON ALCALA CLOUSE.

The Court dissolves parental authority bestowed upon his natural parents and vests parental authority to the herein petitioners and makes him their legal heir. Pursuant to Article 36 of P.D. 603 as amended, the decree of adoption shall be effective as of the date when the petition was filed. In accordance with Article 53 of the same decree, let this decree of adoption be recorded in the corresponding government agency, particularly the Office of the Local Civil Registrar of Merida, Leyte where the minor was born. The said office of the Local Civil Registrar is hereby directed to issue an amended certificate of live birth to the minor adopted by the petitioners.

Let copies of this decision be furnished (sic) the petitioners, DSWD, Zambales Branch, Office of the Solicitor General and the Office of the Local Civil Registrar of Merida, Leyte.

The Office of the Solicitor General appealed to the Supreme Court on a pure question of law, that is, under Article 185 of the Family Code, the Clouse couple was not qualified to adopt.

The ruling of the Supreme Court

Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as “The Family Code of the Philippines”, private respondents spouses Clouse are clearly barred from adopting Solomon Joseph Alcala.

Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who are not qualified to adopt, viz.:

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law.

There can be no question that private respondent Alvin A. Clouse is not qualified to adopt Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision.

In the first place, he is not a former Filipino citizen but a natural born citizen of the United States of America.

In the second place, Solomon Joseph Alcala is neither his relative by consanguinity nor the legitimate child of his spouse.

In the third place, when private respondents spouses Clouse jointly filed the petition to adopt Solomon Joseph Alcala on February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino citizen. She lost her Filipino citizenship when she was naturalized as a citizen of the United States in 1988.

Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a former Filipino citizen. She sought to adopt her younger brother. Unfortunately, the petition for adoption cannot be granted in her favor alone without violating Article 185 which mandates a joint adoption by the husband and wife. It reads:

Article 185. Husband and wife must jointly adopt, except in the following cases:

(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other.

Article 185 requires a joint adoption by the husband and wife, a condition that must be read along together with Article 184.

In sum, the Supreme Court ruled that the adoption must be filed jointly by husband and wife, unless they fall under the exceptions. Also, when adopting jointly, each one of them must be qualified to adopt on his own right.

Modified procedure for relative adoption cases under RA 8043 (as approved by the ICAB on August 30, 2007)

“Relative Adoption” as applies to inter-country adoption refers to the adoption of Filipino child/children by relatives residing abroad within the fourth (4th) degree of consanguity.

Former Filipinos permanently residing abroad and/or foreigners intending to undertake either local adoption (the filing and the finalization of the adoption is done in the Philippines and have the intention of bringing the adoptive child to their country of residence) or through the inter-country adoption route MUST first secure the approval of the Central Authority on Inter-country Adoption in the country of residence before filing any adoption petition. Adoption applicants from the USA must first secure their suitability and eligibility to adopt (I800A) from the USA Central Authority on Inter-Country Adoption. Canada based adoption applicants obtain such approval from the Central Authority on Inter-country Adoption of the Province or Territory of residence.

1. The Questionnaire for Relative Adoptive Applicants (ICAB Form No.2) which can be downloaded from the ICAB website shall be submitted by the prospective adoptive parents (PAPs) to the Central Authorities (CAs)/ Foreign Adoption Agencies(FAAs). The CAs/FAAs shall endorse to ICAB the completed Questionnaire for Relative Adoptive Applicants (QRAA) with the agency's assessment and recomendation on the prospective adoptive parents.

2. If the CA/FAA favorably recommends the PAPs, the ICAB social worker will then request the CA/FAA to proceed with the preparation of the PAPs’ dossier. On the other hand, based on the significant data on the child as indicated in the QRAA, the assigned ICAB Social Worker will request the DSWD - Field Office (FO) to conduct the Child Study Report with supporting documents. Periodic follow-ups will be made with the DSWD-FO. (The time frame from request to ICAB’s receipt of the report will be 3-6 months. In situations where the FO could not prepare the Child Study Report within the expected time frame in view of heavy adoption caseload, the ICAB social worker will assist in the conduct of the CSR).

3. Once the ICAB receives from the DSWD-FO the child’s dossier and the complete adoption application dossier of the PAPs from the CA or FAA, the ICAB social worker will prepare an executive summary on the case with his/her recommendation on the child’s adoptive placement for the disposition of the Board.

For more information, you can contact the ICAB at #2 Chicago St corner Ermin Garcia St. Barangay Pinagkaisahan, Cubao, Quezon City, Philippines 1111; Telephone Nos:(632)721-9781 to 82; 726-45-51;726-45-68 Loc. 807 (Regular) and 808/810 (Relative)
Fax No. (632)725-66-64; E-Mail address: adoption@icab.gov.ph; Website: www.icab.gov.ph

The contact list of ICAB counterpart organizations: Asia Pacific, Canada, Europe and USA.

Misinterpretation and misunderstanding of RA 9523

Republic Act 9523 “An Act Requiring Certification of the Department of Social Welfare and Development (DSWD) to Declare A Child Legally Available For Adoption as a Prerequisite For Adoption Proceedings” amended certain portions of RA 8552 , RA 8043, and Presidential Decree No. 603 “Child and Youth Welfare Code”.

Contrary to erroneous reports in the media and the Internet, RA 9523 did not turn the whole adoption process from a judicial proceeding under the Family Courts to an administrative proceeding under the DSWD. RA 9253 applies only to surrendered, abandoned, neglected, and dependent children who are subject to adoption.

Under RA 9523, the time period before a child is considered abandoned has been reduced to a maximum of three months from the original minimum of six months. RA 9523 made the declaration of abandonment of child “administrative in nature” which now requires just a certification signed by the DSWD secretary instead of a judicial order. Because of the new regulations, a child could be declared legally available for adoption in less than two months. Previously, it took as long as three years in court proceedings for such a declaration.

But as Section 4 of the Implementing Rules and Regulations of RA 9523 clearly states, certain adoption proceedings in court do not require a “Certification Declaring a Child Legally Available for Adoption.” These are:

[1] Adoption of an illegitimate child by any of his/her biological parent
[2] Adoption of a child by his/her step-parent
[3] Adoption of a child by a relative within the fourth degree of consanguinity or affinity

Note: You might be interested in reading "Adoption group opposes ‘Orphan’ movie", a Manila Bulletin article by Robert Requintina.

Can a man who had a sex change operation have his birth certificate entry for gender changed from “male” to female”?

The Supreme Court ruled negatively on this question in the case of “Rommel Jacinto Dantes Silverio versus Republic of the Philippines”, G.R. No. 174689, promulgated last October 22, 2007.

Justice Renato C. Corona, speaking for the Court, asked rhetorically in his ponencia, “When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?”

(Note: Please read From “Jennifer ” to “Jeff ” and from female to male: correction of entries in birth certificate due to intersex condition)

The facts of the case

Rommel Jacinto Dantes Silverio (Silverio for brevity) alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as “Rommel Jacinto Dantes Silverio” in his certificate of live birth (birth certificate). His sex was registered as “male.”

Silverio further alleged that he is a male transsexual, that is, “anatomically male but feels, thinks and acts as a female” and that he had always identified himself with girls since childhood. Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a “woman” culminated on January 27, 2001 when he underwent sex reassignment surgery in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (Silverio) had in fact undergone the procedure. During trial, Silverio testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.

The favorable decision of the Manila Regional Trial Court

On June 4, 2003, the Manila RTC through presiding Judge Felixberto T. Olalia rendered a decision in favor of Silverio, that is, changing his first name from "Rommel" to "Mely" and his gender from "male" to "female". The trial court stated,

Firstly, the court is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.

Likewise, the court believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her fiancé and the realization of their dreams.

On August 18, 2003, the Republic of the Philippines, through the Office of the Solicitor General, filed a petition for certiorari in the Court of Appeals. It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

Manila RTC decision overturned by the Court of Appeals

On February 23, 2006, the Court of Appeals rendered a decision in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Silverio moved for reconsideration but it was denied. He subsequently filed a petition with the Supreme Court questioning the decision of the Court of Appeals.

Reasons why the Supreme Court denied petition for change from “male” to “female”

The Supreme Court denied Silverio’s petition on the following grounds: [1] A person’s first name cannot be changed on the ground of sex reassignment; [2] No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment; and [3] Neither may entries in the birth certificate as to first name or sex be changed on the ground of equity.

The pertinent portions of the Supreme Court decision are posted below:

1. The petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first name was concerned.

2. While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. There is no special law in the country governing sex reassignment and its effect. This is fatal to petitioner’s cause.

3. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

4. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).

Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.

(Note: Please read From “Jennifer ” to “Jeff ” and from female to male: correction of entries in birth certificate due to intersex condition)

P.S. If you know someone struggling with homosexuality, please ask him to surf to Living Hope Ministries. Here in the Philippines, he can communicate with Bagong Pag-asa, an ex-gay change ministry founded by Frank Worthen. Its office is located at Burgundy Corporate Tower in Buendia, Makati. I don’t know if Bagong Pag-asa’s cell phone numbers are still current but try 0927-578-8373 or 0921-295-2135.

I have worked with a pastor in a depressed community here in Metro Manila, and he told me of the very serious problem of the sexual abuse of grade school children by their own fathers. Two of my former students in high school became homosexuals when they were sexually abused at a very young age. I wanted to learn how to help people in this kind of situation, and so I invited Frank Worthen three years ago to give a seminar on the causes of homosexuality for the faculty and students of Asia Baptist Bible College, Sta. Mesa, Manila. His books on this topic are available at PCBS, OMF Lit, and National Bookstore.

Legal definition of “death” in the Philippines

The medical community, here and abroad, has used several criteria by which to determine whether a person is dead or alive. These are:

(1) Heart-lung death: the irreversible cessation of spontaneous respiration and circulation

(2) Whole-brain death: the irreversible cessation of all functions of the entire brain, including the brain stem, even if the heart and digestive systems are still functioning

(3) Higher-brain death: the irreversible cessation of all cognitive functions such as personality, consciousness, uniqueness, memory, judgment, reason, enjoyment, worry, etc.

How does Philippine law define “death”? Republic Act 7170 or the “Organ Donation Act of 1991” in Section 2, paragraph (j), defines death this way:

j) “Death” - the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain stem. A person shall be medically and legally dead if either:

(1) In the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of national respiratory and cardiac functions and, attempts at resuscitation would not be successful in restoring those functions. In this case, death shall be deemed to have occurred at the time those functions ceased; or

(2) In the opinion of the consulting physician, concurred in by the attending physician, that on the basis of acceptable standards of medical practice, there is an irreversible cessation of all brain functions, and considering the absence of such functions, further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such natural functions. In this case, death shall be deemed to have occurred at the time when these conditions first appeared.

The death of the person shall be determined in accordance with the acceptable medical practice and shall be diagnosed separately by the attending physician and another consulting physician, both of whom must be appropriately qualified and suitable experienced in the care of such patients. The death shall be recorded in the patient’s medical record.

For a related article on this topic, please surf to my Salt and Light weblog at www.-salt-and-light-.blogspot.com.

Curfew for minors now illegal under RA 9344 “Juvenile Justice and Welfare Act of 2006”

Update as of November 3, 2017: SC okays curfew for QC minors, but not in Manila and Navotas (Business Mirror) After a thorough evaluation of the provisions of the ordinances, the Court found that only the Quezon City ordinance met the said requirement as the Manila and Navotas ordinances were not narrowly drawn in that their exceptions were inadequate and run the risk of overly restricting the minors’ fundamental freedoms. “To be fair, both ordinances protect the rights to education, to gainful employment and to travel at night from school or work,” the Court said. “However, even with those safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not account for the reasonable exercise of the minors’ rights of association, free exercise of religion, rights to peaceably assemble and of free expression, among others.” The Court said the exceptions under the Manila ordinance were too limited and, thus, unduly trample upon protected liberties. It likewise observed that, while the Navotas ordinance was apparently more protective of constitutional rights than the Manila ordinance, it still provided insufficient safeguards in that it hindered minors from engaging in legitimate nonschool or nonchurch activities in the streets; it effectively prohibited minors from attending traditional religious activities (such as simbang gabi or dawn masses) at night without accompanying adults; and it did not accommodate avenues for minors to engage in political rallies or attend city council meetings to voice out their concerns in line with their right to peaceably assemble and to free expression. In addition, the Court ruled that the penal provisions of the Manila Ordinance, which impose reprimand and fines/imprisonment on minors are in conflict with Section 57-A of Republic Act 9344 (Juvenile Justice and Welfare Act of 2006), as amended, which provides that no penalty shall be imposed on children for violations of juvenile status offenses. Read also: SC upholds QC curfew for minors, strikes down curfew in Manila, Navotas (ABS-CBN) SC okays curfew for minors in QC, but not in Manila, Navotas (Interaksyon)

It has been a year since Republic Act 9344 or the “Juvenile Justice and Welfare Act of 2006” was signed into law by President Gloria Macapagal-Arroyo, and its provisions have only just started to make ripples in the public consciousness.

Controversial provisions of RA 9344

Some provisions of RA 9344 have become controversial, most especially the provision on criminal exemption of persons below fifteen years of age. Anyone who has taught in public high schools will tell you how naive and shortsighted this particular provision is.

Several weeks ago, a high school kid from Laguna was beaten to death by a schoolmate, but because that schoolmate is below 15, the police had no choice but to release him. In fairness to the sponsors of this law (Sen Kiko Pangilinan and the UNICEF), RA 9344 provides for what are known as "diversion" and intervention" programs to be implemented by the DSWD.

Please read Dan Mariano’s article “Problems juvenile justice law failed to anticipate” which discusses a potential and very possible scenario whereby criminal syndicates could purposely use minors for their illegal activities. “First minors are exploited and turned into criminal activities because of their poverty. Now, they will be exploited precisely because of their minority and their exemption from criminal prosecution.”

Curfew ordinances against minors is a status offense prohibited by RA 9344

Numerous barangays, towns and cities have passed ordinances imposing curfew for minors. Under Section 57 of RA 9344, curfew ordinances against minors are classified as “status offenses” and are therefore illegal. The section states:

Any conduct not considered as an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. Below are some of the essential provisions of the said law.

Sec. 4, paragraph (r) of RA 9344 includes curfew violations under the term “status offense”.

Other essential provisions of RA 9344

Section 6.- Minimum Age of Criminal Responsibility

A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

Section 20.- Children Below the Age of Criminal Responsibility

If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which shall have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization, a barangay official or a member of the Barangay Council for the Protection of Children (BCPC), a local social welfare and development officer, or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise known as “The Child and Youth Welfare Code.”

Section 58. - Offenses Not Applicable to Children

Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No.1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program.

Primer on the Family Code of the Philippines: Absolute community of property

Articles 88 up to 104 of the Family Code are the governing laws on the system of property relations between spouses known as ACP or absolute community of property. Under this system, the husband and wife become the co-owners of all the properties they bring into the marriage and those they acquire during the marriage, subject to exceptions under Art. 92. The committee which crafted the Family Code believed that this system was in keeping with the accepted practice of Filipino families of the husband and wife treating each other as co-owners of the properties acquired before and during marriage.

When does the ACP start?

The absolute community of property between spouses commences at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (Art. 88)

Can there be a waiver of the rights, shares and effects of the ACP?

No waiver of rights, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the waiver must appear in a public instrument and must be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (Art. 89)

What constitutes community property?

Unless otherwise provided in this Chapter or in the marriage settlements, the community property consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (Art. 91)

What are excluded from the community property?

1. Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they form part of the community property;

2. Property for personal and exclusive use of either spouse. However, jewelry form part of the community property;

3. Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property. (Art.92)

What is the presumption regarding property acquired during the marriage?

Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (Art. 93)

What will the ACP be liable for?

Art. 94 provides that the absolute community of property is liable for:

1. The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support;

2. All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other;

3. Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

4. All taxes, liens, charges and expenses, including major or minor repairs, upon the community property;

5. All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family;

6. Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement;

7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;

8. The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement;

9. Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

10. Expenses of litigation between the spouses unless the suit is found to be groundless.

If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses are solidarily liable for the unpaid balance with their separate properties.

What about losses or winnings in games of chance like sweepstakes or the lotto?

Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, must be borne by the loser and must not be charged to the community but any winnings therefrom form part of the community property. (Art. 95)

Who has the right to the administration and enjoyment of the community property?

Art. 96 provides that the administration and enjoyment of the community property belong to both spouses jointly. In case of disagreement, the husband's decision prevails, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance is void. However, the transaction will be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

Can the husband or wife dispose of his or her share in the community property?

Either spouse may dispose by will of his or her interest in the community property. (Art. 97)

Can either spouse make donations out of the community property?

Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (Art. 98)

How is the absolute community dissolved?

Art. 99 provides that the absolute community terminates:

1. Upon the death of either spouse;

2. When there is a decree of legal separation;

3. When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage under Articles 134 to 138.

What happens to the absolute community if the spouses are separated?

Art. 100 provides that the separation in fact between husband and wife shall not affect the regime of absolute community except that:

1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

3. In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share.

What are the remedies of an abandoned spouse with regards the community property?

Art. 101 provides that if a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

When is a spouse deemed to have abandoned the other?

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

What is the procedure in the liquidation of the absolute community assets and liabilities?

Art. 102 provides that upon dissolution of the absolute community regime, the following procedure shall apply:

1. An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse.

2. The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94.

3. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

4. The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

5. The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51. (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain.

Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

What is the procedure in the liquidation of the community property upon the death of a spouse?

Art. 103 provides that upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Primer on the Family Code of the Philippines: Donations by reason of marriage

Articles 82 to 87 of the Family Code are the governing laws on donations between spouses.

What are donations by reasons of marriage?

Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (Art. 82)

What rules govern this kind of donations?

These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (Art. 83)

Is there a limit to the donations between spouses?

If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. (Art. 84)

What rules govern donations of future property?

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

Can property subject to encumbrances be donated?

Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (Art. 85)

What are the grounds for revoking a donation by reason of marriage?

Article 86 provides that a donation by reason of marriage may be revoked by the donor in the following cases:

1. If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;

2. When the marriage takes place without the consent of the parents or guardian, as required by law;

3. When the marriage is annulled, and the donee acted in bad faith;

4. Upon legal separation, the donee being the guilty spouse;

5. If it is with a resolutory condition and the condition is complied with;

6. When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general.

What about donations during marriage?

Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (Art. 87)

Heirs and inheritance (Part 13): When a man is married to or living in with several women successively or simultaneously, which woman has the right to inherit from him?

The Cariňo vs. Cariňo case decided by the Supreme Court involved two Susans (one surnamed Nicdao and the other one Yee) who were married to the same man, SPO4 Santiago S. Cariño, and who between the two Susans was entitled to the death benefits of the deceased. This decision, however, applies to situations where a man (or woman, for that matter) may be married to or cohabiting with several persons, successively or simultaneously, and who among the parties may be entitled to inherit from the man when he dies.

Summary: The marriage between Susan Nicdao and SPO4 Cariño is void for having been solemnized without the necessary marriage license.Their property relations are governed by Article 147 of the Family Code. Susan Yee’s marriage to SPO4 Cariño is likewise void because it was solemnized without first obtaining a judicial decree declaring his marriage to Nicdao void. Their property relations are governed by Article 148 of the Family Code. Susan Yee is not entitled to any of the death benefits that Susan Nicdao was able to collect. Susan Nicdao, under Article 147 of the Family Code, is entitled to only one half of the death benefits. The other half goes to her children with SPO4 Cariño (Sahlee and Sandee) as their inheritance. Under the rules on intestate succession, Susan Nicdao is not an heir of SPO4 Cariño.

Facts of the case:

1. During his lifetime, SPO4 Santiago S. Cariño contracted two marriages:

• First marriage on June 20, 1969, with Susan Nicdao Cariño (Susan Nicdao or Nicdao, for brevity), with whom he had two offsprings, namely, Sahlee and Sandee Cariño;
• Second marriage on November 10, 1992, with Susan Yee Cariño (Susan Yee or Yee, for brevity), with whom he had no children in their almost ten year cohabitation starting way back in 1982.

2. In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes complicated by pulmonary tuberculosis. He passed away on November 23, 1992, under the care of Susan Yee, who spent for his medical and burial expenses.

3. Both Susan Nicdao and Susan Yee filed claims for monetary benefits and financial assistance pertaining to the deceased from various government agencies. Susan Nicdao was able to collect a total of Php146,000.00 from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,” while Susan Yee received a total of Php 21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).”

4. On December 14, 1993, Susan Yee filed a case for collection of sum of money against Susan Nicdao asking her to return at least one-half of the one hundred forty-six thousand pesos (Php 146,000.00) collectively denominated as “death benefits” which Nicdao received from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons, Nicdao failed to file her answer, prompting the trial court to declare her in default.

5. Susan Yee admitted that her marriage to SPO4 Santiago S. Cariño took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between Susan Nicdao and SPO4 Cariño. She, however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of SPO4 Cariño, where she met Nicdao who introduced herself as the wife of the deceased.

To bolster her action for collection of sum of money, Susan Yee contended that the marriage of Susan Nicdao and SPO4 Cariño is void ab initio because it was solemnized without the required marriage license. In support, she presented 1) the marriage certificate of the deceased and the petitioner which bears no marriage license number; and 2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro Manila, which reads –

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969. Hence, we cannot issue as requested a true copy or transcription of Marriage License number from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose it may serve.

6. On August 28, 1995, the trial court ruled in favor of Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which was paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in the amount of P5,000.00, and costs of suit.

7. On appeal by Susan Nicdao to the Court of Appeals, the CA affirmed in whole the decision of the trial court. Nicdao then appealed to the Supreme Court.

The Supreme Court’s ruling

1. The marriage between Susan Nicdao and SPO4 Cariño is void for having been solemnized without the necessary marriage license. Their property relations are governed by Article 147 of the Family Code. This article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license.

2. Susan Yee’s marriage to SPO4 Cariño is likewise void because it was solemnized without first obtaining a judicial decree declaring his marriage to Nicdao void. Their property relations are governed by Article 148 of the Family Code. This article covers the property regime of bigamous marriages, adulterous relationships, relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man.

3. Under Article 148, the disputed Php 146,000.00 from MBAI, NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly remunerations, incentives and benefits from governmental agencies earned by SPO4 Cariño as a police officer. They are not owned in common by Susan Yee and SPO4 Cariño, but belong to the deceased alone and Yee has no right whatsoever to claim the amount. By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs. And Yee, not being the legal wife of SPO4 Cariño, is not one of them.

Under Article 147, one-half of these “death benefits” belongs to Susan Nicdao as her share in the property regime. By intestate succession, the other half of the benefits belongs to his legal heirs, namely, his children with Susan Nicdao.

(Note: The narration of facts and the ruling above are from the Supreme Court decision, but was edited, with numbered paragraphs for example, for easier comprehension by laymen.)

Family Code of the Philippines: Primer on the property relations between husband and wife

Articles 74 up to 148 from Title IV of the Family Code are the governing laws on the property relations between husband and wife. (Note: Article 111 of the Family Code has been amended by RA 10572.)

What governs the property relationship between husband and wife?

Article 74 provides that the property relationship between husband and wife are governed in the following order:

1. By marriage settlements executed before the marriage;

2. By the provisions of this Code; and

3. By the local custom.

What are the property regimes that may be agreed upon by the future spouses?

The future spouses may, in the marriage settlements, agree upon the (1) regime of absolute community, (2) conjugal partnership of gains, (3) complete separation of property, or (4) any other regime.

In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code will govern. (Art. 75)

Can modifications be made to the marriage settlements?

Art. 76 provides that in order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136.

Art. 77 further provides that the marriage settlements and any modification thereof must be in writing, signed by the parties and executed before the celebration of the marriage. They will not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties.

What about minors and marriage settlements?

A minor who according to law may contract marriage may also execute his or her marriage settlements, but they are valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of the Family Code. (Art. 78.)

What if one of the future spouses was sentenced in a criminal case and the sentence carries with it civil interdiction (prohibition from exercising certain civil and political rights)?

Art. 79 provides that for the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it is indispensable for the guardian appointed by a competent court to be made a party.

What governs the property relations of spouses?

In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses are governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. (Art. 80.)

Are there exceptions?

Art. 80 provides that the rule does not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.

What if the marriage does not push through?

Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, are rendered void if the marriage does not take place. But stipulations that do not depend upon the celebration of the marriages shall be valid. (Art. 81)

Can an unwed mother avail of the benefits of the Solo Parents Welfare Act?

Through an anonymous comment posted in my article on “Support for an abandoned woman and her children,” I was informed that in one case, the Social Welfare and Development Office of a town refused to give assistance to an unwed mother. The SWD reportedly required the unwed mother to present either the death certificate of the spouse or of a decree of annulment of the marriage.

Section 3, paragraph [8] of RA 8972, in the Definition of Terms, expressly includes unwed mothers (and unwed fathers!) as among those included in the term “solo parent,” and so they can be recipients of the benefits of this law. The paragraph defines a solo parent as an “unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution.”

Financial support for abandoned woman and her children

Summary: 1. If you and your children have been abandoned by your husband or live-in partner, you can compel him to give financial support by filing a petition for Protection Order under RA 9262. 2. In filing this petition, you can get free legal help from the Public Attorneys Office or the Integrated Bar of the Philippines chapter offices. You can file the petition with the Family Court of the place where you live. 3. Support includes everything necessary for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of your family. 4. You can ask for support pendente lite (while the case is ongoing). 5. The Family Court judge will set the amount of support in proportion to your needs and the resources of your husband or live-in partner. 6. In the Protection Order, the judge will direct the employer of your husband or live-in partner to remit the support directly to you and your children. 7. If your husband or live-in partner and his employer disregard the Protection Order, you can ask the judge to cite them for contempt of court. The penalty for contempt is imprisonment or fine.

(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.)

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

What law governs support?

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

What does support consist of?

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

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

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

Article 198 of the Family Code provides:

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

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

How much is the amount of support to be granted?

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

Can support be reduced or increased?

Article 202 provides that support can be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish it.

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

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

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

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

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

Article 204 provides that the person obliged to give support has the option to fulfill the obligation either:

(1) by paying the allowance fixed, or

(2) by receiving and maintaining in the family dwelling the person who has a right to receive support.

The second alternative cannot be used if in case there is a moral or legal obstacle.

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

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

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

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

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

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

How can this right under RA 9262 be availed of?

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

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

Hold Departure Order under RA 9262

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

Hold Departure Order. – The counsel for the victim-survivor or applicant may request the court for a Hold Departure Order in the application or petition for protection order. The court shall expedite the process of issuance of a hold departure order in cases prosecuted under the Act.

Section 36 of the IRR implements Section 37 of RA 9262. For more information on this matter, please refer to my previous article on Protection Orders.

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

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

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

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

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

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

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

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

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

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

In determining support for the spouses, the court may be guided by the following rules:

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

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

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

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

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

(3) the duration of the marriage;

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

(5) the needs and obligations of each spouse;

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

(7) the age and health of the spouses;

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

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

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

(d) The Family Court may direct the deduction of the provisional support from the salary of the spouse.

How the courts determine the amount of financial support for children, whether legitimate or illegitimate

The Family Code both provides that legitimate (Article 174)  and illegitimate children (Article 176) are entitled to support. Section 3 of the Supreme Court Rule on Provisional Orders states:

The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership.

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

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

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

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

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

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

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

What happens in an annulment case if the respondent does not file an Answer?

Summary: If the respondent in a petition for annulment (voidable marriages) or for declaration of nullity (void marriages) does not file an Answer or if the Answer does not tender an issue: 1. The Family Court should not declare him or her in default. 2. The court must order the public prosecutor (fiscal) to investigate whether collusion exists between the parties.

In most civil cases, when the defendant fails to file an Answer, the court upon motion by the complainant, may declare the defendant in default. In sports competitions, the team or player present is declared automatically as the winner. In our legal system, however, the complainant must still present his evidence, and the court decides the case on the basis of the evidence submitted.

But in petitions for annulment (voidable marriages) or declaration of nullity (void marriages), there is no declaration of default when the respondent fails to file an Answer. The procedure in annulment cases is provided for in A. M. No. 02-11-10-SC. You can find a copy in the Legal Procedures section of my Family Matters website. Section 8 of the Rule states the following:

(2) If the respondent fails to file an answer, the court should not declare him or her in default.

(3) Where no answer is filed or if the answer does not tender an issue, the court must order the public prosecutor to investigate whether collusion exists between the parties.

Even before the Supreme Court issued this Rule, our laws prohibited declaration of default in legal separation or annulment cases. The Court in the case of Ancheta vs. Ancheta (G.R. No. 145370, March 4, 2004) chided the trial court judge and the fiscal for their abject failure to follow the proper procedures. Excerpts of this decision are posted below (emphasis by boldfacing supplied).

The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the trial court. However, we cannot but express alarm at what transpired in the court a quo as shown by the records. The records show that for the petitioner’s failure to file an answer to the complaint, the trial court granted the motion of the respondent herein to declare her in default. The public prosecutor condoned the acts of the trial court when he interposed no objection to the motion of the respondent. The trial court forthwith received the evidence of the respondent ex-parte and rendered judgment against the petitioner without a whimper of protest from the public prosecutor. The actuations of the trial court and the public prosecutor are in defiance of Article 48 of the Family Code, which reads:

Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.

The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides:

Sec. 6. No defaults in actions for annulment of marriage or for legal separation.— If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exits, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.

In the case of Republic vs. Court of Appeals, this Court laid down the guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State:

The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

This Court in the case of Malcampo-Sin vs. Sin reiterated its pronouncement in Republic v. Court of Appeals, regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. The trial court, abetted by the ineptitude, if not sheer negligence of the public prosecutor, waylaid the Rules of Court and the Family Code, as well as the rulings of this Court.

The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well.

A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated.

Our Constitution is committed to the policy of strengthening the family as a basic social institution. Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the State is vitally interested. The State can find no stronger anchor than on good, solid and happy families. The break-up of families weakens our social and moral fabric; hence, their preservation is not the concern of the family members alone. Whether or not a marriage should continue to exist or a family should stay together must not depend on the whims and caprices of only one party, who claims that the other suffers psychological imbalance, incapacitating such party to fulfill his or her marital duties and obligations.

Custody battles over children: what determines fitness of a parent over another?

Summary: 1. In custody disputes, the paramount criterion is the welfare and well-being of the child. 2. General rule: custody of a child below seven years of age belongs to the mother. 3. Exception: if there are compelling reasons, custody may be denied and granted to another party under Article 214 of the Family Code. 4. The factors that determine the fitness of any parent are: - the ability to see to the physical, educational, social and moral welfare of the children, and - the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents. Related posts: Custody battles over children between grandparents and a father or mother Can a mother be deprived of custody of her child? How do our courts determine which parent has the right of custody of the children?

(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.)

Nothing can be more traumatic than a husband and a wife’s battle for custody of their children, except probably for a child to know that his or her parents are in a bitter, legal tug-of-war for his or her custody.

Welfare of the minors is the controlling consideration; factors that determine fitness of a parent

The Supreme Court in the case of Bondagjy vs. Bondagjy (G.R. No. 140817, December 7, 2001) stated that the welfare of the minors is the controlling consideration on the issue. The Court also said that the factors that determine the fitness of any parent are:

1. the ability to see to the physical, educational, social and moral welfare of the children, and

2. the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.

Excerpts from the Supreme Court decision

Posted below are excerpts of the Bondagjy decision (emphasis by boldfacing supplied). The “PD 1083” mentioned in the decision refers to the Code of Muslim Personal Laws.

1. Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back to Catholicism upon their separation, still bound by the moral laws of Islam in the determination of her fitness to be the custodian of her children?

The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a Muslim.

Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.
 
The record shows that petitioner is equally financially capable of providing for all the needs of her children. The children went to school at De La Salle Zobel School, Muntinlupa City with their tuition paid by petitioner according to the school’s certification.

2. The welfare of the minors is the controlling consideration on the issue.

In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take into account all relevant considerations.

Article 211 of the Family Code provides that the father and mother jointly exercise parental authority over the persons of their common children.

Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated, the father and mother must jointly exercise just and reasonable parental authority and fulfill their responsibility over their legitimate children.

Either parent may lose parental authority over the child only for a valid reason. In cases where both parties cannot have custody because of their voluntary separation, we take into consideration the circumstances that would lead us to believe which parent can better take care of the children. Although we see the need for the children to have both a mother and a father, we believe that petitioner has more capacity and time to see to the children’s needs. Respondent is a businessman whose work requires that he go abroad or be in different places most of the time. Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the contrary, is given to the mother.

3. But the award of custody to the wife does not deprive the husband of parental authority. In the case of Silva v. Court of Appeals, we said that:

“Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their 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, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

Is bigamy committed when a person gets married to another party while his or her petition for annulment of a previous marriage is pending in court?

Summary: 1. The Supreme Court has declared in several cases that a person commits bigamy if he or she gets married to another party while the first marriage is subsisting, even if such marriage is subsequently declared null and void. Abunado vs. People, G.R. No. 159218, March 30, 2004 Tenebro vs. CA, G.R. No. 150758, February 18, 2004 2. If the court declares the marriage null and void, can there be a subsequent marriage immediately? Some people want to get married immediately after they have received the copy of the court’s decision granting the petition for declaration of nullity of their first marriage. This is wrong. At what point in time can a subsequent marriage take place? Please take note of Sections 21 to 23 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Only when these sections have been complied with can a subsequent marriage take place.

The Family Code of the Philippines speaks of marriages that are void ab initio, that is, void or without any legal effect from the very beginning, subject to certain exceptions like the legitimacy of children, etc. 

Some people mistakenly believe that since their marriage is void from the very beginning, they can simply take the law into their own hands and get married again to other parties without resorting to legal procedures. But Article 40 of the Family Code prohibits people from taking the law into their own hands.

(As I have noted in previous posts, legally speaking, a petition for annulment is for voidable marriages while declaration of nullity is for void marriages. The term "annulment" however is used by people on the street as a generic term referring both to void and voidable marriages.)

Some people, on the other hand, cannot wait until after the resolution of their petition for annulment; they get married even while the case is pending in court. Still other people, when charged with bigamy, subsequently file a petition for annulment or declaration of nullity, thinking that if the first marriage is declared void, then the criminal case for bigamy no longer has any basis. In legal terms, the petition for annulment or declaration of nullity is used by the accused as defense in the bigamy case by claiming that such is a prejudicial question.

The Supreme Court has declared in several cases that a person commits bigamy if he or she gets married to another party while the first marriage is subsisting, even if such marriage is subsequently declared null and void. Thus, the Court ruled in Abunado vs. People, G.R. No. 159218, March 30, 2004:

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The Supreme Court discussed this issue of bigamy and subsequent declaration of nullity of marriage in the case of Tenebro vs. CA, G.R. No. 150758, February 18, 2004. Excerpts of this decision are posted below (emphasis by boldfacing supplied):

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individual’s criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15. When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter, Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial declaration of the nullity of the second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed.

This argument is not impressed with merit.

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The State’s penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individual’s deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer) and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses). Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38 may contract marriage.

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accused’s guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities.Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the State’s basic social institution, the State’s criminal laws on bigamy step in.