Questions and answers on inheritance: no children and without a last will

Definition of terms: The New Civil Code of the Philippines (NCC), not the Family Code, governs the issues on inheritance. “Testate or testamentary succession” refers to situations where the person dies leaving a last will; the share in the inheritance is called “legitime”. “Legal or intestate succession” refers to situations where the person died without a last will; the share in the inheritance is called “intestate share”. The person who dies and whose property is to be divided is called the “decedent”. Related posts: Disinheriting your spouse Disinheriting children and descendants, legitimate as well as illegitimate Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half Can nephews and nieces inherit from their grandparents, unmarried aunts or uncles? When a man is married to or living in with several women successively or simultaneously, who has the right to inherit from him? Right of representation Iron barrier between the legitimate and illegitimate sides of the family

Question: My brother’s wife died without leaving a last will. They have no children. Besides my brother, among her surviving relatives are her parents, several brothers and sisters and some nephews and nieces. Who is entitled to inherit from her and what are the shares?

Answer:

1. The New Civil Code of the Philippines (NCC) contains the rules on succession, not the Family Code. (In layman’s terms, succession is inheritance.) Please browse the NCC section of my Family Matters website for the complete provisions on succession.

Since there was no last will and testament executed by your brother's wife, then the rules on legal or intestate succession must be followed.

2. When a husband or wife dies without any children, then under the NCC rules on intestate succession, the compulsory heirs and their respective shares are in their proper order:

A. The surviving spouse gets one-half of the estate, and the surviving parents of the deceased also get one-half.

This is provided by Article 997 of the NCC which states, “When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.”

B. If the parents are dead, then the surviving spouse gets one-half, and the other half goes to the brothers and sisters, nephews and nieces (representing any deceased sibling of the deceased spouse).

This is provided by Article 1001 of the NCC which states, “Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.”

Please take note that if the parents are alive (or if only the father or mother is alive, as the case may be), then the brothers and sisters, nephews and nieces will not have a share in the inheritance. This is based on the principle in succession known as “nearer excludes farther.”

The share of the surviving spouse in the community property or in the conjugal partnership property will first be deducted from the estate. The remaining portion after the deduction will then be divided according to the proportions set by Articles 997 and 1001 of the NCC.

3. Article 103 of the Family Code provides the procedure for the liquidation of the community property in case of death. The articles states,

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.

Article 103 is reproduced verbatim in Article 130 of the Family Code. The article governs the liquidation of the conjugal partnership property.

Both Articles 103 and 130 speak of the liquidation of the community property or of the conjugal partnership property in the “proceeding for the settlement of the estate of the deceased.” This proceeding in the settlement of the estate of the deceased is Rule 73 of the Rules of Court. Under Rule 73, any of the compulsory heirs can file a petition in court to have the estate judically settled. To avoid dissipation of the estate, the petition should be filed immediately.

If all the heirs can come to an agreement, however, then they could just execute a deed of extrajudicial settlement of estate. This is much faster and less costly than going to court to have the estate judicially settled.

Family Code of the Philippines: Requisites of marriage, void and voidable marriages, annulment, declaration of nullity, rights and obligations of spouses


More than 30,000 unique and repeat visitors have browsed my Family Matters website since it became online in December 2005. The second most browsed page of this site is that of the Family Code provisions on marriage. Sad to say but the number one question I have been asked by the more than 500 people who have e-mailed me for legal information and Biblical counseling is how a marriage can be annulled or declared null and void.

Be that as it may, as Drs. Les and Leslie Parrott state in their book “Relationships”, 95% of today's singles still deeply desire to be married. As John Eldredge put it in his book “The Journey of Desire”, we were created for intimacy. Or as the Bible puts it, “marriage is honourable unto all.” And so the wedding bells keep ringing ...

Contrary to popular belief, more Filipinos get married in January than in June. So for those of you getting married this month or contemplating marriage sometime soon, I have provided below some information on the requisites of marriage, void and voidable marriages, annulment / declaration of nullity, Article 36 or psychological incapacity, rights and obligations of spouses.

How does the Family Code define “marriage”?

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

What are the essential requisites that make a marriage valid?

Article 2 provides that no marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer.

What are the formal requisites of marriage?

The formal requisites of marriage according to Article 3 are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

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

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

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

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

Is a marriage void if there is no record of the marriage certificate on file with the NSO?

The marriage certificate is not an essential nor a formal requisite of marriage. Despite the absence of the marriage certificate in the NSO files, the validity of the marriage is not affected. Other proofs (marriage license, testimony of the solemnizing officer, etc) can be presented to prove the existence and validity of the marriage.

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

Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a)

Is there any prescribed form for the marriage ceremony?

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

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

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

Who are authorized to solemnize marriages?

Art. 7. Marriage may be solemnized by:

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

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

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

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

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

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

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

The consul-general, the consul or vice-consul of the Republic of the Philippines can solemnize the marriage. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.

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

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

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

In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (Article 13)

What is the effectivity of the marriage license once issued?

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

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

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

Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (Article 21)

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

All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (Article 26)

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

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

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

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

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

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. (Article 34)

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

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

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

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

What marriages are considered void from the beginning?

Article 35 of the Family Code provides that the following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered under the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

What is the famous “Article 36” of the Family Code?

Article 36 provides: “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

The Family Code does not have a definition of what “psychological incapacity” is. In the case of Santos vs. Court of Appeals, the Supreme Court stated, “Psychological incapacity under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.”

What marriages are considered incestuous and thus void?

Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood.

What marriages are considered void by reasons of public policy?

The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.

Can a person who finds out that his or her marriage is bigamous simply take the law into his or her own hands and declare that the marriage is void?

No, Article 40 states that the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

If the husband or wife has been missing for several years and could not be located despite earnest and diligent efforts to locate him or her, can the present spouse get married again?

Article 41 provides that a marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead.

In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

What step should the present spouse take so that he or she can get married again?

For the purpose of contracting the subsequent marriage under Article 41, the spouse present should file a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

What happens if the spouse declared presumptively dead reappears later on?

The subsequent marriage shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

What are the effects if the subsequent marriage is terminated?

Article 43 provides that the termination of the subsequent marriage shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession.

What are the reasons for annulling a marriage?

Article 45 provides that a marriage may be annulled for any of the following causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

Article 45, paragraph (3) speaks of fraud that may annul a marriage. What constitutes fraud?

Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

Who can file for the annulment of a marriage and within what periods?

(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage.

What is the duty of the Court in cases of annulment or declaration of nullity of marriages?

Article 48 provides that 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.

During the course of the trial for the annulment or declaration of nullity of marriages, how can the rights of the spouses and their children as to support, visitation rights, etc be ensured?

Article 49 provides that during the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent.

What are the things to be decided upon by the Court in cases of annulment or declaration of nullity?

Article 50 provides that the final judgment of the Court shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been decided upon in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

How can the rights of the children be guaranteed?

Article 51 provides that in the partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

Does this mean that the children will no longer inherit from their parents?

No, the delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.

What are required to be done with the judgment, partition, etc?

The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.

When can the former spouses get married again to other persons?

Article 53 provides that either of the former spouses may marry again after compliance with the requirements of Article 52; otherwise, the subsequent marriage shall be null and void.

What is the status of the children in such cases?

Article 54 provides that children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

The rights and obligations of husbands and wives

The rights and obligations of husbands and wives are covered by Title III of the Family Code, specifically from Articles 68 up to 73. Please surf over to my Salt and Light blog for a primer on the rights and obligations of husbands and wives, plus a discussion on the Biblical views about the roles of men and women.

Article 68 provides that “the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Speaking of love and respect, you might also be interested in reading my article entitled “Love and Respect” which discusses Ptr. Emerson Eggerichs’ view that a woman’s deepest need is love while a man’s deepest need is respect. Without love, a woman reacts without respect. Without respect, a man reacts without love.

DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence

Note: Please read the June 2011 Supreme Court decision in “Jesse U. Lucas, Petitioner, vs. Jesus S. Lucas, Respondent, G.R. No. 190710.” The Court ruled that “during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.” This simply means that: 1. The trial court must hold a hearing on whether DNA testing should be done or not; 2. During the hearing, the petitioner (the mother or the child) must present evidence to prove that there is a reasonable possibility the man is the biological father; Evidence to prove possibility of paternity could be testimonies of witnesses to the sexual or romantic relationship between the mother and the alleged father, videos, pictures, letters, etc. The Court’s ruling protects the alleged father from mere harassment suits. The issuance of a DNA testing order is discretionary upon the trial court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

The Supreme Court’s Rule on DNA Evidence A.M. No. 06-11-5-SC became effective on October 15, 2007. The Court used the Rule in deciding the case of “Estate Of Rogelio G. Ong versus Minor Joanne Rodjin Diaz, Represented by Her Mother and Guardian, Jinky C. Diaz,” G.R. No. 171713, promulgated on December 17, 2007. The Court observed:

“For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.” Agustin v. Court of Appeals

The facts of the case

A Complaint for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered: (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter; (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support; (c) Ordering the defendant to pay plaintiff attorney’s fees in the sum of P100,000.00 and (d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises.

As alleged by Jinky in her Complaint, in November 1993 in Tarlac City, she and Rogelio got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez.

From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City.

From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was born at the Central Luzon Doctors’ Hospital, Tarlac City.

Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joanne’s needs – recognizing the child as his.

In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child.

Rogelio, despite Jinky’s remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the complaint.

The RTC ruling: Joanne is the child of Rogelio
 
The Tarlac City RTC finally held that the only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz.

Since it was duly established that plaintiff’s mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may have declared against her legitimacy (Article 167, Ibid).

The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must be physical impossibility for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the birth of the child because of –

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

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

c) serious illness of the husband which prevented sexual intercourse.

It was established by evidence that the husband is a Japanese national and that he was living outside of the country and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz.

While it may also be argued that plaintiff Jinky had a relationship with another man before she met the defendant, there is no evidence that she also had sexual relations with other men on or about the conception of Joanne Rodjin. Joanne Rodjin was her second child, so her first child, a certain Nicole (according to defendant) must have a different father or may be the son of Hasegawa Kutsuo.

The defendant admitted having been the one who shouldered the hospital bills representing the expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to Joanne.

On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff.

On 15 December 2000, the RTC rendered a decision that stated:

WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age.

Ong’s death while the case was pending before the Court of Appeals; CA remands the case to Tarlac City RTC for DNA testing

Rogelio Ong filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial court dated 19 January 2001. From the denial of his Motion for Reconsideration, Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for decision and ordered re-raffled to another Justice for study and report as early as 12 July 2002.

During the pendency of the case with the Court of Appeals, Rogelio’s counsel filed a manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong, which motion was accordingly granted by the Court of Appeals.

In a Decision dated 23 November 2005, the Court of Appeals held:

WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis.

The Court of Appeals justified its Decision as follows:

In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiff’s mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiff’s mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this action for support.

Rogelio’s appeal to the Supreme Court; DNA analysis no longer feasible after death?

Among other grounds, Ong’s appeal (as represented by his Estate) to the Supreme Court sought to reverse the ruling of the Court of Appeals by claiming that the CA erred when it remanded the case to the Tarlac City RTC for DNA analysis despite the fact that it is no longer feasible due to the death of Rogelio G. Ong.

In his petition, the Estate of Rogelio Ong asked that the Decision of the Court of Appeals be modified, by setting aside the judgment remanding the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.

Supreme Court ruling: Even the death of Rogelio cannot bar the conduct of DNA testing

In its decision, the Supreme Court discussed the Family Code provisions on filiation, presumption of legitimacy of a child (Article 167), basis for establishing legitimacy (Articles 172 and 175), among others. I have divided and numbered the pertinent portions of the Court’s ruling for easier reading and comprehension:

1. As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor.

But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing.

2. DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA profile can determine his identity.

DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.

3. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioner’s argument is without basis especially as the New Rules on DNA Evidence allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation.

From Section 4 Application for DNA Testing Order, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.

As defined above, the term “biological sample” means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones.

Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing.

Dual citizenship: A primer on RA 9225 Citizenship Retention and Reacquisition Act of 2003

What is the policy of the State regarding dual citizenship?

All Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of RA 9225.

How can Philippine citizenship be reacquired by a Filipino who has been naturalized as a citizen of a foreign country?

Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippine who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

“I, _________________________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily with no mental reservation or purpose of evasion.”

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the oath stated above.

What is derivate citizenship?

The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of RA 9225 shall be deemed citizens of the Philippines.

What are the civil and political rights and responsibilities of those who retain or re-acquire Filipino citizenship?

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

1. Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189 otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
2. Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;
3. Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath.
4. Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and
5. That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active services as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

Relevant information: Philippine Retirement Authority

The PRA is a government owned and controlled corporation which was created by virtue of Executive Order No. 1037, which was signed by then President Ferdinand E. Marcos, on 04 July 1985. On 31 August 2001, through Executive Order No. 26, the control and supervision of PRA was transferred to the Board of Investments (BOI) from the Office of the President.

The PRA is mandated to attract foreign nationals and former Filipino citizens to invest, reside and retire in the Philippines with the end-view of accelerating the socio-economic development of the country; contributing to the foreign currency reserve of the economy; and by providing them the best quality of life in the most attractive package.

Filipino divorced by spouse (who's formerly a Philippine citizen) can remarry under Article 26 of the Family Code

Notes: 1. Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud. 2. Please read the related discussions on “Divorce obtained abroad by a Filipino citizen against alien spouse recognized in the Philippines” and “Even if Filipinos get married abroad where divorce is legal, they cannot later on get a divorce that is recognized here in the Philippines”

Issue:

Two Filipino citizens get validly married. One spouse later becomes a foreign citizen. This spouse then obtains a valid divorce decree. The divorce decree allows this spouse to remarry. Can the other spouse (who is still a Filipino citizen) likewise remarry under Philippine law?

Answer:

Yes, according to the Supreme Court ruling in the case of Republic of the Philippines v. Cipriano Orbecido III, G.R. No. 154380, promulgated on October 5, 2005. Ponente of the decision was Justice Leonardo A. Quisumbing.

Article 26 of the Family Code provides:

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

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

Update as of April 25, 2018: “SC recognizes divorce in marriage with foreigners” (Rappler) The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.”

Does Article 26 apply only to a mixed marriage, that is, between a Filipino and a foreigner?

Orbecido’s petition

Orbecido filed with the Regional Trial Court of Molave, Zamboanga del Sur a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the RTC granted Orbecido's petition. (The facts of the case are in the latter part of this post.)

Objection by the Office of the Solicitor General

In its petition before the Supreme Court, the Office of the Solicitor General stated that Article 26 applies only to valid mixed marriage, that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy in Orbecido’s situation, according to the OSG, is to file a petition for annulment or for legal separation. Furthermore, the OSG argues there is no law that governs Orbecido’s situation. The OSG claims that this is a matter of legislation and not of judicial determination.

Supreme Court ruling: Article 26 allows a Filipino citizen — divorced by a Filipino spouse who had acquired foreign citizenship and remarried — to remarry

The Supreme Court rejected the OSG’s claim and in the dispositive (summing up) portion of its decision stated:

• “We are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry.”
  
  
• “The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.”

The Supreme Court’s views and reasoning are enumerated below (boldfacing supplied):

1. Taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.

2. If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

3. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

• There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
• A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

4. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the “divorced” Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

The facts of the Orbecido case

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In its petition before the Supreme Court, the OSG raised a pure question of law: Whether or not respondent can remarry under Article 26 of the Family Code.

As stated above, the Supreme Court rejected the OSG’s stand on Article 26. But the Court also stated that:

The records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondent’s wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved. Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.

Note: This portion of the Court’s decision does not contradict its ruling that a Filipino divorced by a former Filipino citizen can remarry under Article 26, 2nd paragraph. It simply states that Orbecido did not submit the proper evidence before the Regional Trial Court of Molave, Zamboanga del Sur to prove his claims (that his wife became a naturalized US citizen and had later on gotten a divorce, etc). Orbecido could re-file the case, this time submitting the proper evidence, or ask for a re-opening of the proceedings before the RTC.

Heirs and inheritance (Part 11): How to disinherit your children and descendants, legitimate as well as illegitimate

Summary / Definition of terms 1. “Testate or testamentary succession” refers to situations where the person dies leaving a last will. 2. “Legal or intestate succession” refers to situations where the person died without a last will. 3. “Decedent”: the person who dies and whose property is to be divided 4. “Testator”: the person who dies leaving a last will 5. A “notarial will” is prepared and notarized by a notary-public; besides the testator, three attestation witnesses must sign the will. 6. A “holographic will” is completely written, signed, and dated by the person making the will. 7. Article 918 of the New Civil Code states the requisites of a valid disinheritance. 8. Article 919 of the New Civil Code states the grounds for disinheriting children and descendants (grandchildren), legitimate as well as illegitimate. 9. The law is strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. 10. Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and any disinheritance cannot be given effect.

A lot of Filipinos, in their twilight years, have told their children that whoever would take care of them in their time of old age or sickness, would be the one to inherit from them. Those who will not do so will not receive anything by way of inheritance. In some cases, brothers and sisters have fought each other, claiming that those who took care of their parents in their old age are the only ones entitled to inherit.

Here in the Philippines, we have the system of compulsory heirs under the New Civil Code. This simply means that certain individuals have the legal right to inherit from us. The only way we can deprive a compulsory heir of his inheritance is through the process of disinheritance.

Also, under RA 8552 (Domestic Adoption Act of 1998), rescission of adoption is no longer allowed. This means that once adopted, a person cannot be “un-adopted” or “dis-adopted” (if there are such words) by his adoptive parents. What the adoptive parents can do is to disinherit the adopted child.

The law is very strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. You must seek the help of a lawyer-notary public who is well-versed in the requisites stated in the New Civil Code of the Philippines. (Please read the discussion below on the two kinds of will, notarial and holographic.)

Grounds for disinheriting children and descendants

Article 919 of the New Civil Code provides the grounds for disinheriting children and descendants (grandchildren), legitimate as well as illegitimate.  The word “testator” mentioned several times below refers to the person making a last will. The disinheritance must be done through a will.

1. When a child or descendant has been found guilty of an attempt against the life of the testator, his or her own spouse, descendants or ascendants;

2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation groundless;

3. When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;

4. When a child or descendant by fraud, violence, intimidation or undue influence causes the testator to make a will or to change one already made;

5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;

6. Maltreatment of the testator by word or deed, by the child or descendant;

7. When a child or descendant leads a dishonorable or disgraceful life;

8. Conviction of a crime with the penalty of civil interdiction.

Requisites for valid disinheritance of children and descendants

The requisites of valid disinheritance under Art. 918 of the New Civil Code are:

• It must be done in a valid will;


• It must be express;


• There must be a true cause;


• The cause must be existing;


• It must be total and complete;


• The cause must be stated in the will;


• The heir disinherited must be identified;


• The will must not have been revoked.

Two kinds of will: notarial and holographic

Under the New Civil Code of the Philippines, there are two kinds of wills: (1) notarial will, and (2) holographic will. As the name denotes, a “notarial will” is prepared and notarized by a notary-public. On the other hand, a “holographic will” is completely written, signed and dated by the person making the will (called the “testator”).

Disinheritance through a “Kasulatan ng Pag-Aalis ng Mana”

For more information about holographic wills, please read the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the testator executed a document entitled “Kasulatan ng Pag-Aalis ng Mana” where he disinherited his oldest child. The Supreme Court ruled:

The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.

Whether notarial or holographic, a will must be probated before it can be given effect

Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, (1) ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and (2) any disinheritance cannot be given effect.

Issues to be resolved in the probate of a holographic will

In a petition to admit a holographic will to probate, the only issues to be resolved by the court are:

(1) whether the instrument submitted is, indeed, the decedent’s last will and testament;

(2) whether said will was executed in accordance with the formalities prescribed by law;

(3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and,

(4) whether the execution of the will and its signing were the voluntary acts of the decedents.

As a rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. (Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488).

Heirs and inheritance (Part 12): How to disinherit your spouse

Summary / Definition of terms 1. “Testate or testamentary succession” refers to situations where the person dies leaving a last will. 2. “Legal or intestate succession” refers to situations where the person died without a last will. 3. “Decedent”: the person who dies and whose property is to be divided 4. “Testator”: the person who dies leaving a last will 5. A “notarial will” is prepared and notarized by a notary-public; besides the testator, three attestation witnesses must sign the will. 6. A “holographic will” is completely written, signed, and dated by the person making the will. 7. Article 918 of the New Civil Code states the requisites of a valid disinheritance. 8. Article 921 of the New Civil Code states the grounds for disinheriting a spouse. 9. The law is strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. 10. Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and any disinheritance cannot be given effect.

Spouses no longer have the right to inherit from one another after their marriage is annulled (for voidable marriages) or declared null and void (for void marriages).

In a legal separation under Articles 55 to 67 of the Family Code, Article 63, paragraph(4) disqualifies the offending spouse from inheriting from the innocent spouse by intestate succession (this term simply means “without a last will”). Also, provisions in favor of the offending spouse in a last will previously executed by the innocent spouse is revoked by operation of law.

Some spouses, however, are merely separated without having gone through the judicial process of annulment, declaration of nullity, or legal separation. In some cases, physical separation became necessary became of abuse. In instances of actual separation of the spouses where there are no judicial proceedings for annulment, declaration of nullity or legal separation, I have counseled people to, at the very least, file a petition for judicial separation of property as provided for by Articles 134 up to 142 of the Family Code.

Requisites and grounds for disinheriting a spouse

I have counseled some people in extreme situations to disinherit their spouses. I have told them that the law is very strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. You must seek the help of a lawyer-notary public who is well-versed in the requisites of the New Civil Code of the Philippines.

The requisites of valid disinheritance under Art. 918 of the New Civil Code are:

1. It must be done in a valid will;

2. It must be express;

3. There must be a true cause;

4. The cause must be existing;

5. It must be total and complete;

6. The cause must be stated in the will;

7. The heir disinherited must be identified;

8.The will must not have been revoked.

The grounds for disinheriting a spouse under Art. 921 of the New Civil Code are:

1. When the spouse has been convicted of an attempt against the life of the testator, his or her descendants or ascendants;

2. When the spouse has accused the testator of a crime punishable by imprisonment of six years or more, and the accusation is false;

3. When the spouse, by fraud, violence, intimidation or undue influence causes the testator to make a will or to change it;

4. When the spouse has given cause for legal separation;

5. When the spouse has given grounds for loss of parental authority;

6. Unjustifiable refusal to support the children or the other spouse.

Two kinds of will: notarial and holographic

Under the New Civil Code of the Philippines, there are two kinds of wills: (1) notarial will, and (2) holographic will. As the name denotes, a “notarial will” is prepared and notarized by a notary-public. On the other hand, a “holographic will” is completely written, signed and dated by the person making the will (called the “testator”).

Disinheritance through a “Kasulatan ng Pag-Aalis ng Mana”

For more information about holographic wills, please read the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the testator executed a document entitled “Kasulatan ng Pag-Aalis ng Mana” where he disinherited his oldest child. The Supreme Court ruled:

The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.

Whether notarial or holographic, a will must be probated before it can be given effect

Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, (1) ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and (2) any disinheritance cannot be given effect.

Issues to be resolved in the probate of a holographic will

In a petition to admit a holographic will to probate, the only issues to be resolved by the court are:

(1) whether the instrument submitted is, indeed, the decedent’s last will and testament;

(2) whether the will was executed in accordance with the formalities prescribed by law;

(3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and,

(4) whether the execution of the will and its signing were the voluntary acts of the decedent.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. But, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. (Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488).

Protecting our families and churches from Internet pornography; court decisions on pornography and obscenity

Pornography in its various forms (magazines, videos, films, online, etc) is a 12 to 13 billion dollar industry that’s wreaking havoc on families and churches. And yet, according to Kerby Anderson’s article “The Pornography Plague” in www.probe.org, “Christians are often ignorant of its impact and apathetic about the need to control this menace.”

Children are the target of online pornographers. According to a 2002 report by the prestigious London School of Economics, “9 out of ten children aged between 8 and 16 years have viewed pornography on the Internet. In most cases, sites were accessed unintentionally when a child used a seemingly innocent sounding word to search for information or pictures.”

Please surf to my Salt and Light blog for the complete article on how to protect our families and churches from Internet pornography.

US Supreme Court rulings on obscenity and pornography

The provisions of the Philippines’ 1987 Constitution on freedom of the press, speech and religion are derived from the United States Constitution. Thus, our Supreme Court in deciding cases on these issues usually looks for guidance and authority at decisions made by the United States Supreme Court. Our Supreme Court’s landmark ruling in Estrada vs. Escritor on freedom of religion, for example, is replete with citations from US decisions.

I think it was US Supreme Court Justice Felix Frankfurter who said, “I can’t define what obscenity is but I will know it when I see it.” The US Supreme Court has defined and clarified what "obscenity" is in several rulings:

1. Roth v. United States, (1965): Obscenity was not protected by the First Amendment. Federal, state, and local laws apply to the sale, display, distribution, and broadcast of pornography. Pornographic material, therefore, can be prohibited if it meets the legal definition of obscenity.

2. Miller v. California, 1973: A legal definition of obscenity must meet the three part test: [1] If it appeals to the prurient interest; [2] is patently offensive, and [3] lacks serious value (artistically, etc.) then the material is considered obscene and is illegal.

3. Paris Adult Theatre v. Slaton, 1973: Material legally defined as obscene is not accorded the same protection as free speech in the First Amendment. Even if obscene films are shown only to "consenting adults," this did not grant them immunity from the law.

4. New York v. Ferber, 1982: Child pornography was not protected under the First Amendment even if it was not legally defined as obscene under their three- part test. Since children cannot legally consent to sexual relations, child pornography constitutes sexual abuse.

In 1984 the US Congress passed the Child Protection Act which provided tougher restrictions on child pornography. In the Philippines, we have RA 7610 or the “Special Protection of Children Against Abuse, Exploitation and Discrimination Act.” With regards pornography and obscenity, Article V of RA 7610 states:

Sec. 9. Obscene Publications and Indecent Shows. - Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period.

Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period.

The penalty of prision mayor (medium period) is from 8 years and one day to ten years, while the maximum period is ten years and one day up to twelve years.

Family Code of the Philippines: Property relations between live-in partners

Articles 147 and 148 of the Family Code of the Philippines are the governing laws on property relations between a man and a woman in a live-in relationship. (According to a DSWD report , 40% of couples in CALABARZON are merely living in.)

Article 147 states:

When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

Article 147 of the Family Code applies when a man and woman can get legally married but for one reason or another, have not done so

Article 147 applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void. Article 147 creates a co-ownership with respect to the properties they acquire during their cohabitation. Even if one of the parties did not work or contribute in the acquisition of property, the care and maintenance of the family household is considered as a contribution.

The Supreme Court held in Valdes vs. Regional Trial Court, Br. 102, Quezon City:

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term “capacitated” in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any “male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Article 37 and 38” of the Code. (Emphasis by boldfacing supplied)

Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.”

Requisites for Article 147 to apply

Thus, for Article 147 to operate, the man and the woman:

• must be capacitated to marry each other;
• live exclusively with each other as husband and wife; and
• their union is without the benefit of marriage or their marriage is void.

Article 148 of the Family Code applies to situations where the parties are not legally capacitated to marry each other

Article 148 applies to bigamous marriages, adulterous relationships, relationships in a state of concubinage, relationships where both man and woman are married to other persons, and multiple alliances of the same married man. Under this regime, “only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ...” Proof of actual contribution is required, unlike in situations covered by Article 147. In the absence of proof of extent of the parties’ respective contribution, their share are presumed to be equal.

Under Article 148, the properties acquired by the parties through their actual joint contribution belong to the co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too, contributions in the form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime.

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of properties acquired by the parties to a bigamous marriage and an adulterous relationship, respectively, the Supreme Court ruled that proof of actual contribution in the acquisition of the property is essential. The claim of co-ownership of the petitioners who were parties to the bigamous and adulterous union is without basis because they failed to substantiate their allegation that they contributed money in the purchase of the disputed properties.

Also in Adriano v. Court of Appeals, the Court ruled that even if the controverted property was titled in the name of the parties to an adulterous relationship, it is not sufficient proof of co-ownership without evidence of actual contribution in the acquisition of the property.

The case of Saguid vs. Court of Appeals, G.R. No. 150611, June 10, 2003 illustrates how the Supreme Court applied Article 148:

Seventeen-year old Gina S. Rey was married, but separated de facto from her husband, when she met petitioner Jacinto Saguid in Marinduque, sometime in July 1987. After a brief courtship, the two decided to cohabit as husband and wife in a house built on a lot owned by Jacinto’s father. Their cohabitation was not blessed with any children. Jacinto made a living as the patron of their fishing vessel “Saguid Brothers.” Gina, on the other hand, worked as a fish dealer, but decided to work as an entertainer in Japan from 1992 to 1994 when her relationship with Jacinto’s relatives turned sour. Her periodic absence, however, did not ebb away the conflict with petitioner’s relatives. In 1996, the couple decided to separate and end their 9-year cohabitation.

On January 9, 1997, private respondent filed a complaint for Partition and Recovery of Personal Property with Receivership against the petitioner with the Regional Trial Court of Boac, Marinduque. She alleged that from her salary of $1,500.00 a month as entertainer in Japan, she was able to contribute P70,000.00 in the completion of their unfinished house. Also, from her own earnings as an entertainer and fish dealer, she was able to acquire and accumulate appliances, pieces of furniture and household effects, with a total value of P111,375.00. She prayed that she be declared the sole owner of these personal properties and that the amount of P70,000.00, representing her contribution to the construction of their house, be reimbursed to her.

Private respondent testified that she deposited part of her earnings in her savings account with First Allied Development Bank. Her Pass Book shows that as of May 23, 1995, she had a balance of P21,046.08. She further stated that she had a total of P35,465.00 share in the joint account deposit which she and the petitioner maintained with the same bank. Gina declared that said deposits were spent for the purchase of construction materials, appliances and other personal properties.

In his answer to the complaint, petitioner claimed that the expenses for the construction of their house were defrayed solely from his income as a captain of their fishing vessel. He averred that private respondent’s meager income as fish dealer rendered her unable to contribute in the construction of said house. Besides, selling fish was a mere pastime to her; as such, she was contented with the small quantity of fish allotted to her from his fishing trips. Petitioner further contended that Gina did not work continuously in Japan from 1992 to 1994, but only for a 6-month duration each year. When their house was repaired and improved sometime in 1995-1996, private respondent did not share in the expenses because her earnings as entertainer were spent on the daily needs and business of her parents. From his income in the fishing business, he claimed to have saved a total of P130,000.00, P75,000.00 of which was placed in a joint account deposit with private respondent. This savings, according to petitioner was spent in purchasing the disputed personal properties.

It is not disputed that Gina and Jacinto were not capacitated to marry each other because the former was validly married to another man at the time of her cohabitation with the latter. Their property regime therefore is governed by Article 148 of the Family Code, which applies to bigamous marriages, adulterous relationships, relationships in a state of concubinage, relationships where both man and woman are married to other persons, and multiple alliances of the same married man. Under this regime, “only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ... Proof of actual contribution is required.

In the case at bar, although the adulterous cohabitation of the parties commenced in 1987, which is before the date of the effectivity of the Family Code on August 3, 1998, Article 148 thereof applies because this provision was intended precisely to fill up the hiatus in Article 144 of the Civil Code. Before Article 148 of the Family Code was enacted, there was no provision governing property relations of couples living in a state of adultery or concubinage. Hence, even if the cohabitation or the acquisition of the property occurred before the Family Code took effect, Article 148 governs.

As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the party’s own evidence and not upon the weakness of the opponent’s defense. This applies with more vigor where, as in the instant case, the plaintiff was allowed to present evidence ex parte. The plaintiff is not automatically entitled to the relief prayed for. The law gives the defendant some measure of protection as the plaintiff must still prove the allegations in the complaint. Favorable relief can be granted only after the court is convinced that the facts proven by the plaintiff warrant such relief. Indeed, the party alleging a fact has the burden of proving it and a mere allegation is not evidence.

In the case at bar, the controversy centers on the house and personal properties of the parties. Private respondent alleged in her complaint that she contributed P70,000.00 for the completion of their house. However, nowhere in her testimony did she specify the extent of her contribution. What appears in the record are receipts in her name for the purchase of construction materials on November 17, 1995 and December 23, 1995, in the total amount of P11,413.00.

On the other hand, both parties claim that the money used to purchase the disputed personal properties came partly from their joint account with First Allied Development Bank. While there is no question that both parties contributed in their joint account deposit, there is, however, no sufficient proof of the exact amount of their respective shares therein. Pursuant to Article 148 of the Family Code, in the absence of proof of extent of the parties’ respective contribution, their share shall be presumed to be equal. Here, the disputed personal properties were valued at P111,375.00, the existence and value of which were not questioned by the petitioner. Hence, their share therein is equivalent to one-half, i.e., P55,687.50 each.