Rules of procedure in administrative cases against teachers

Newspaper and television news reports in recent weeks have bannered stories of abuse allegedly committed by teachers against helpless schoolchildren. We have, for example, that egregious case of a teacher punishing a Grade 2 student by asking her to swallow pencil shavings.

The Family Code, in several articles, provides for the scope and limitations of teachers’ special parental authority over their students:

Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution.

Art. 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable.

The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances.

Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;

(2) To give them love and affection, advice and counsel, companionship and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;

(5) To represent them in all matters affecting their interests;

(6) To demand from them respect and obedience;

(7) To impose discipline on them as may be required under the circumstances; and

(8) To perform such other duties as are imposed by law upon parents and guardians.

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law.

Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher or individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. (emphasis by boldfacing supplied)

Please take note especially of Article 233 which absolutely prohibits teachers from inflicting physical punishment on their students.

While there are true stories of abuse committed by teachers against their students, still, the Constitutional presumption of innocence applies. As former Senator Rene Saguisag (my fellow alumnus from Rizal High School in Pasig) once said, “It is only by guaranteeing the rights of the most guilty that we can guarantee the rights of the most innocent.”

Thus, charges against a teacher must go through a process where he or she is given the chance to be heard and present exculpatory evidence. In administrative cases against teachers, the Department of Education follows “The DECS Rules of Procedure” under DECS Order N0. 33, s. 1999. Disappointingly, as of this writing, the DepEd does not have a copy of this Order in its website. (But these rules, with some differences, basically follow the rules of procedure laid down by the Civil Service Commission. You can read these rules in the CSC website.)

Basically, however, the DECS Rules observe the following requirements and procedures:

1. A complaint in writing and under oath is filed against a teacher. Anonymous complaints, under certain conditions, may be allowed. For example, the complaint is supported by documentary evidences upon which the truth can be ascertained, even without the presence of a complainant. If the complaint is filed with the DepEd Central Office or with its Regional Offices, the complaint is indorsed to the respective Division Office under which the teacher serves.

2. The complaint must contain a certification against non-forum shopping.

3. A fact-finding or preliminary investigation is conducted to determine whether the complaint is meritorious or not. The investigating officer or committee of the Division submits its Investigation Report to the Regional Office. The report may either recommend the filing of a formal charge against the teacher by the disciplining authority, OR the dismissal of the complaint.

If the complaint is dismissed, the complainant can file a Petition for Review with the Secretary of the DepEd.

4. The formal charge will require the respondent-teacher to submit within a maximum of five days from receipt of the charge to file his answer. In the answer, the teacher must state whether he chooses to exercise his right to a formal investigation.

5. The Division Office concerned creates its investigation committee. The composition of the committee can be challenged under the DECS Rules (or under the Magna Carta for Teachers).

The respondent may be placed under preventive suspension for a maximum of ninety days.

The formal investigation is conducted just like a courtroom trial, and both complainant and respondent are entitled to the services of lawyers. Testimonies of witnesses are under oath, and subject to cross-examination. Documentary evidences are marked and later on formally offered.

After the proceedings, the committee submits to the Regional Office its Formal Investigation Report with its recommendations for either a finding of guilt or innocence. The Regional Office will then hand down its decision on the case. (Please take note that the Supreme Court has ruled that the Formal Investigation Report is an internal document of the DepEd, and there is no denial of due process if the complainant or respondents is not provided with a copy of the said report.)

6. If the teacher-respondent is found guilty, his successive modes of appeal are as follows: (a) motion for reconsideration filed with the Regional Office; (2) appeal to the Secretary of DepEd; and (3) petition for judicial review with the Court of Appeals.

If the teacher-respondent is acquitted, however, the complainant must file a Petition for Review with the Civil Service Commission.

Laban o Bawi : Parents’ obligations in handling their children’s property

You probably saw more than a week ago that Channel 7 news broadcast about two grade schoolers who won a million pesos each in the very popular “Laban o Bawi” portion of the noontime show Eat Bulaga.

In the news broadcast, the boy, from his young mind, enumerated all the things that he planned to do with his windfall. Because of his young age, it is most probably his parents who will make decisions on the disposition of that money.

The Family Code, in Articles 225 up to 227, enumerates the legal obligations of parents in handling the property of their children.

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. [emphasis by boldfacing supplied ]

A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply.

Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. [emphasis by boldfacing supplied ]

Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the child's legitime.

Warrantless arrests

Presidential Proclamation 1017 has brought to the fore the issue of warrantless arrests. For the man on the street, his understanding of the law is that a person can only be arrested by the police authorities by virtue of a warrant of arrest. However, with or without PP1017, the Rules of Court provide for certain instances when an arrest can be made even without a warrant.

Essentially, a police officer or a private person may arrest a person without a warrant if such person:

(1) has committed or attempts to commit an offense in his presence;

(2) an offense has been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;

(3) is an escaped convict.

In warrantless arrests, the fiscal conducts an inquest, not a preliminary investigation. If the accused is held by the police for more than 18, 24 or 36 hours without charges being filed, they will be liable for violation of Art. 125 of the Revised Penal Code (delay in the delivery of prisoners). If the accused however signs a waiver of his detention, he is entitled to a preliminary investigation which must be finished in 15 days. He may however still apply for bail. If the accused does not sign a waiver and charges are filed, he may ask for a preliminary investigation within 5 days of learning of the filing of the information.

When a family member is a drug dependent

What can you do when one of your family members is a drug user and creating emotional psychological, physical, and financial problems for your family?

Well, Republic Act 9165 or The New Comprehensive Dangerous Drugs Law provides an answer, specifically, in Section 61 which states:

Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary Submission Program. - Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose.

A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with Regional Trial Court of the province or city where such person is found.

After the petition is filed, the court, by an order, shall immediately fix a date for the hearing, and a copy of such order shall be served on the person alleged to be dependent on dangerous drugs, and to the one having charge of him.

If after such hearing and the facts so warrant, the court shall order the drug dependent to be examined by two (2) physicians conclude that the respondent is not a drug dependent, the court shall order his/her discharge. If either physician finds him to be a dependent, the court shall conduct a hearing and consider all relevant evidence which may be offered. If the court finds him a drug dependent, it shall issue an order for his/her commitment to a treatment and rehabilitation center under the supervision of the DOH. In any event, the order of discharge or order of confinement or commitment shall be issued not later than fifteen (15) from the filing of the appropriate petition.

You can find the complete text of this law in the website of the House of Representatives.

The "Battered Woman Syndrome" as defense; Spousal abuse: In the name of submission?

Our subject deals with one of the tragic realities of life – spousal abuse. My previous article “Hope and help for the battered woman: Statistics on domestic violence” paints a very grim picture of spousal abuse as a worldwide phenomenon. The article on the “Battered Woman Syndrome” (BWS) is taken from the Supreme Court decision in the case of Marivic Genosa, a Leyteña convicted of murdering her husband for which the trial court imposed on her the death penalty. On automatic appeal of Genosa’s case to the High Court, nationally-known lawyer Katrina Legarda introduced BWS as Genosa’s defense. The Court decided the case several months before the passage of Republic Act 9262 or the “Anti-Violence Against Women and Their Children Act of 2004” into law in March 2004.

As you can read from my Legal Updates article, the Court took BWS into consideration but said that (1) the presence of the syndrome was not proven in Genosa’s case; and ()] the Court’s hands were tied by the prevailing provisions of the Revised Penal Code which did not consider BWS as a justifying circumstance that would enable Genosa to claim valid self-defense.

Nevertheless, the Supreme Court considered two mitigating circumstances in Genosa’s favor, reduced her penalty, and for time already served, ordered Genosa’s release from the Correctional Institution for Women in Mandaluyong.

The Supreme Court’s decision is quite a read, even for law students, but if you’re a counselor, pastor, or someone who personally knows a battered woman, you should take the time and effort in understanding it.

"Battered Woman Syndrome" defined and as a defense in criminal cases

Please take note that Republic Act 9262 or the “Anti-Violence Against Women and their Children Act of 2004” became law after the Genosa decision. RA 9262 defines BWS as “a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.”

Section 26 of RA 9262 discusses the “Battered Woman Syndrome” as a defense, to wit,

Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.

In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists.

In layman’s terms, now, under RA 9262, if an abused woman kills or inflict physical injuries on her abusive husband or live-in partner, once the trial court determines that she is suffering from the “Battered Woman Syndrome,” the court will declare her not guilty. (As I mentioned above, the Court stated that BWS was not proven in Genosa’s case and that the provisions of the Revised Penal Code on the elements of justifying circumstances on self-defense thus had to be followed.)

Characteristics of a battered woman

During the re-hearing at the Leyte trial court, expert witnesses Dra. Natividad Dayan and Dr. Pajarillo testified on what the Battered Woman Syndrome was. The Supreme Court decision states in detail what BWS is. For the sake of clarity, I have numbered the paragraphs of this portion of the Court’s decision.

1. In claiming self-defense, Genosa raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense. By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their “understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time.”

2. A battered woman has been defined as a woman “who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.”

3. Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer’s actions; and false hopes that the relationship will improve.

4. More graphically, the battered woman syndrome is characterized by the so-called “cycle of violence,” which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.

5. During the tension-building phase, minor battering occurs - it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her “placatory” and passive behavior legitimizes his belief that he has the right to abuse her in the first place.

6. However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence “spirals out of control” and leads to an acute battering incident.

7. The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition.

8. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.

9. The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this “good, gentle and caring man” is the real person whom she loves.

10. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically.

11. The illusion of absolute interdependency is well-entrenched in a battered woman’s psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of “tension, violence and forgiveness,” each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.

Effects of battering

The Supreme Court, based on the testimonies of the expert witnesses presented in Genosa’s defense, summarized the effects when a woman is abused over a period of time. Again, for the sake of clarity, I have numbered the paragraphs of this particular portion of the Court’s decision.

1. Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. “How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called ‘battered wife syndrome.’”

2. To understand the syndrome properly, however, one’s viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.

3. The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latter’s “ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape.” In her years of research, Dr. Walker found that “the abuse often escalates at the point of separation and battered women are in greater danger of dying then.”

4.Corroborating these research findings, Dra. Dayan said that “the battered woman usually has a very low opinion of herself. She has self-defeating and self-sacrificing characteristics.” When the violence would happen, they usually think that they provoked it, that they were the ones who precipitated the violence; that they provoked their spouse to be physically, verbally and even sexually abusive to them.”

As I pointed out in the introductory portion of this article, the Supreme Court decided the Genosa case several months before RA 9262 was promulgated. Now RA 9262, specifically Section 26, expressly provides for the “Battered Woman Syndrome” as a defense, even in the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.

Spousal abuse: In the name of submission?

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

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

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

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

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

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

In a previous article entitled “The Myth of Mutual Submission part 2” , I wrote about the true story of Lucy Tisland who, like Marivic Genosa, killed her husband after enduring years of abuse. The question is, “How should individual Christians, pastors and churches respond to the issue of spousal abuse?”

I have discussed this issue in my article entitled “Hope and help for the battered woman (5): Biblical response to spousal abuse” but let me re-state here some of the main points of that article:

1. Spousal abuse is a sin, and as such, must be dealt with in keeping with Matthew 18, in situations where the spouses concerned are members of the church.

2. Spousal abuse is not only a sin, but also a crime punishable under RA 9262. Since Romans 13 commands us to be subject to the higher powers, pastors and church counselors cannot close their eyes, send the abused woman back into the abusive situation, and simply hope for the best. God’s miracle and protection for the abused woman have already been provided for in laws such as RA 9262. Pastors and counselors should therefore be familiar with the provisions of this law in order to ably counsel abused women on their rights.

Rights and obligations of husbands and wives

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

Anyway, let’s proceed from this romantic, mushy (this is redundant, right?) stuff about “love” and get on with the nitty-gritty details of the rights and obligations between husbands and wives.

As “Insight for Living” Bible teacher Chuck Swindoll once said, “The basis of a good marriage is not love; it is commitment.” What he's saying is that love is not a matter of the emotions, but of the will, of volition (this is really redundant, right?) You might want to review my article "Love Potion No. 9" where I wrote about dopamine, oxytocin and vasopressin. These chemicals produced by the human body and which some people have termed as the “cuddle chemicals” are believed responsible for that mysterious thing called love.

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

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

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

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

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

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

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

Who decides on the family domicile?

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

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

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

Who is responsible for the support of the family?

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

Who manages the household?

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

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

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

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

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

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

What if there is disagreement between the spouses?

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

(1) The objection is proper; and

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

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

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

Rights and obligations of husbands and wives from the Biblical standpoint

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Biblical grounds for divorce and remarriage

We don’t have a divorce law here in the Philippines. But we do have its equivalents (for example, declaration of nullity of a marriage based on Article 36 of the Family Code) which allow the estranged couple to marry other persons after their marriage has been declared null and void. Please take note that on the basis of Article 15 of the New Civil Code, a divorce obtained by a Filipino abroad will not be recognized here in the Philippines. Please read the following articles I have written on the issue of divorce and remarriage for Filipinos:

Divorce obtained abroad by Filipino citizen against alien spouse now recognized in the Philippines

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

Ruffa, Ylmaz, TV Patrol, divorce and remarriage by Filipinos; John and Gretchen?

The issue I wish to discuss here however is the Biblical grounds for divorce and remarriage. I’m sure you have heard the expression “What is legal is not always moral, and what is moral is not always legal.” Well, let me rephrase it this way, “What is legal is not always Biblical, and what is Biblical is not always legal.”

Over the years, pastors and church members have asked me for advice on what to do in situations where a new believer in Christ is legally married but is now separated and living in with another partner. While I could outline the laws and legal procedures in annulling a marriage, I would always tell the church member to consult his pastor on whether he has Biblical grounds for annulling his marriage.

My discussion here is based primarily on three sources: (1) Chuck Swindoll’s book “Strike The Original Match”; (2) Kerby Anderson’s article on divorce from the Probe Ministries website; and (3) from the Radio Bible Class Ministries article “Divorce and Remarriage” by RBC research editor Herb Vander Lugt.

Swindoll’s views on divorce and remarriage

Chuck Swindoll describes it accurately when he said in his book (published by Multnomah Press, 1980) that a busload of evangelical theologians will never achieve unanimity in their views of divorce and remarriage even if the bus went on a tour for the whole summer. Some Filipino pastors will categorically state, “The Bible does not allow divorce under any circumstance, period. The Bible does not allow remarriage, either, period.”

My own views are similar to those propounded by Swindoll. He states that based on Matthew 19 and I Corinthians 7:12-15, there are three circumstances or grounds for a valid, Biblical divorce and remarriage. These are:

1. When the marriage and divorce occurred prior to salvation;

2. When one’s mate is guilty of sexual immorality and is unwilling to repent and live faithfully with the marriage partner;

3. When one of the mates is an unbeliever and willfully and permanently deserts the believing partner.

Swindoll closes his discussion by quoting John R.W. Stott (Church Counter-Culture, IVF Press 1978) who says, “Divorce was a divine concession to human weakness.” Swindoll adds, “No Christian should aggressively seek the dissolution of his or her marriage bond. Some of the very best things God has to teach His children are learned while working through marital difficulties. Endless stories could be told of how God honored the perseverance of abused and ignored parties as they refused to give up.”

Dr. Ed Wheat, M.D. in his book “Love Life for Every Married Couple” (reprinted in the Philippines by Christian Literature Crusade) echoes the same view in page 227: “Do not give your husband a divorce. Do all in your power to delay or prevent it. If you must consult a lawyer, make it clear to the lawyer that it is only for your financial protection and that of your children. Find a Christian lawyer who will help you preserve your marriage.”

Anderson’s views

Kerby Anderson agrees with Swindoll that divorce and remarriage are Biblical only “in cases of marital infidelity by the other spouse or in cases of desertion by an unbelieving spouse.” Anderson also warns that even in these cases, pastors and churches should encourage reconciliation, not divorce.

Anderson also briefly tackles the issue of domestic violence or spousal abuse. He says that “in very troubling cases which involve mental, sexual and/or physical abuse, legal separation is available as a remedy to protect the abused spouse.”

Vander Lugt’s views; spousal abuse as a ground for divorce and remarriage

The Radio Bible Class Ministries article by Vander Lugt discusses in greater detail the issue of domestic violence or spousal abuse as a ground for divorce. Vander Lugt basically agrees with Swindoll and Anderson that the Bible permits divorce and remarriage on two grounds: sexual infidelity and the desertion of a spouse by an unbeliever.

However, Vander Lugt argues that I Corinthians 7:10-11 is the Apostle Paul’s compassionate provision for an abused woman. He states, “ … a woman who is married to a physically abusive husband may not be sinning when, with the encouragement of her spiritual counselors, she seeks divorce action – even if her husband is not guilty of sexual immorality.” He adds however that in such a case, remarriage is not allowed.

It is clear from the previous citation of Swindoll, Anderson and Wheat’s views, that Vander Lugt departs completely from what is certainly the majority view on divorce and remarriage.

A lot of pastors will also find questionable Vander Lugt's views that:

1. “When two people whose divorces were not valid in God’s sight come together in the sexual union of marriage, they break their former marriage covenant. But this is not a continuing state. From this point on, they are husband and wife.
“God considers two people as married when they have met the civil requirements. This is true even when their divorces were not valid in God’s sight.”

2. “ … when two people marry after a divorce on grounds less than specified by Jesus and Paul, they sin against the covenant they made in the previous marriage. But this occurs only once. Their first sexual union breaks the former bind. The new marriage covenant is now in effect.”

Ptr. John MacArthur Jr. (I can’t remember the exact source) on the contrary, says that since the divorce is not Biblical, God doesn’t recognize the subsequent marriage. Most Filipino pastors I know would also take strong exceptions to these views by Vander Lugt. To be fair however, Vander Lugt doesn't simply pull these views out of thin air. He bases his views on the difference between the Greek word for fornication ("porneia") and for adultery ("moicheia"). You can read his complete article at the Radio Bible Class Ministries website.

I began this discussion with the statement, “What is legal is not always Biblical, and what is Biblical is not always legal.” Let me pose a situationer for you at this point.

The Family Code of the Philippines provides in Articles 41 up to 44 what is known as “declaration of presumptive death for purposes of remarriage.” If a spouse has been missing for two years (extraordinary absence) or four years (ordinary absence), and there is well founded belief that the absent spouse is dead, the present spouse can file a petition in court asking that the absent spouse be declared presumptively dead. After the court’s decision has become final and executory, the present spouse is now free to remarry.

That’s the law. My question to you is this: You’re a pastor, and your church member says that he or she wants to avail of Articles 41 to 44 of the Family Code in order to marry someone. Would you say that the member has a Biblical reason for remarriage?

Freedom of religion in public schools

With regards the teaching of religion to public school students, the 1987 Constitution in Article XIV, Section 3, paragraph (3), states,

“At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.”

The freedom of religion clause of the 1987 Constitution is found in Article III, Section 5. It states,

“]“No law shall be passed respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.”

The freedom of religion clause of our Constitution is of American origin. Thus decisions of the US Supreme Court are applicable to Philippine situations. In terms of discrimination against any religion, the US Supreme Court has ruled the following:

1. Lamb’s Chapel et al. v. Center Moriches Union Free School District, 508 U.S. 384 (1993) - School districts cannot deny churches access to school premises after-hours, if the district allowed the use of its building to other groups.

2. Good News Club v. Milford Central School, (2001) - Milford Central School cannot keep Good News Club from using its facilities because the school had created a limited public forum and prohibiting the religious club was viewpoint discrimination.

3. Widmar v. Vincent, 454 U.S. 263 (1981) - A state university cannot refuse to grant a student religious group “equal access” to facilities that are open to other student groups.

4. Fowler v. Rhode Island, 345 U.S. 67 (1953) - Court overturned conviction of a Jehovah's Witness who gave a religious address in a public park without permission of Pawtuckett, Rhode Island city officials. Pawtuckett officials had allowed other reliigous groups to speak in the park

Extra-judicial settlement of estates

Q: My father died leaving some properties to my mother and three children, including me. How can we divide up his properties? What are the respective shares?

A: You and your fellow heirs can simply ask a lawyer to draw up a deed of extra-judicial settlement of your father's estate. You can then have it notarized, and then have the notice published in a newspaper of general circulation once a week for three weeks. After you pay the corresponding taxes, you can then present the deed, the notarized affidavit of publication and the official receipts, to the Register of Deeds so that new titles can be issued to your names (assuming of course that your father left real properties).

Your mother gets one-half of the estate as her conjugal share. The remaining half will then be divided among your mother, you and your two other siblings. However, nothing prevents any heir from giving up his share of the inheritance or from choosing and getting a lesser amount. Thus, for example, instead of getting the farm in the province, one of the heirs may choose to get as his inheritance the brand new car.

Correction of birth certificates

Q: How can I have my birth certificate corrected?

A: For change of first name, and for correction of minor clerical errors, you can simply file an administrative petition with the Local Civil Registrar of your place of birth or residence, under Republic Act 9048, also called the "Guinigundo Law."

For substantial errors, however, like errors in birthdates, gender, etc. you will still have to file the proper petition with the Regional Trial Court of the place which issued your birth certificate.

Marriage between first cousins

Q: Can I get married to my first cousin?

A: No, you cannot. You are related to your cousin by four civil degrees, and thus any such marriage is prohibited by reason of public policy (Article 38 of the Family Code).

From you to your father or mother, that is one degree. From your father or mother, to your grandparents, that is another civiil degree. From your grandparents to your uncle or aunt, that is another degree. And from your uncle or aunt to your first cousin, is another degree, making a total of four degrees.

Legal separation and declaration of nullity

Q: What is the difference between legal separation and declaration of nullity?

A: The grounds or reasons are different, and more importantly, in legal separation, the spouses are not allowed to get married again to other parties. The wife also still has to use her husband's surname. (Practically no one therefore wants to file for legal separation; almost everyone in marital troubles will choose to have his or her marriage decalred null and void.)

Divorce and declaration of nullity

Q: What is the difference between divorce and declaration of nullity?

A: In divorce (which is non-existent in the Philippines), the grounds or reasons for such arise during the marriage. In declaration of nullity of a marriage (as provided for by the Family Code), the grounds or reasons are already existing even before the marriage, but such grounds may have manifested themselves only during the marriage.

In practical effect, however, both divorce and declaration of nullity of a marriage allow the former spouses to get married again to other persons.

Annulment and declaration of nullity

Q: Is there any difference between annulment and declaration of nullity of marriage?

A: Under Articles 35 up to 54 of the Family Code, some marriages are considered either void or voidable. Technically speaking, annulment refers to the legal action declaring void those marriages considered as voidable (that is valid until annulled). On the other hand, declaration of nullity refers to those marriages considered as void from the very beginning.

In laymen's language, however, annulment is often used as a generic term for the legal action concerning both kinds of marriages.

Marriage license requirement

Q: My boyfriend and I are both above 21 years of age, and we want to get married, with our parents' consent. But the Local Civil Registrar won’t issue a marriage license because my boyfriend can't produce his birth certificate. What can we do?


A: Please point out to the LCR the last portion of Article 12 of the Family Code which states,

“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.”

Psychological incapacity

Q: What is psychological incapacity?


A: Article 36 of the Family Code 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 Supreme Court in the case of Santos vs. Court of Appeals.stated, “pychological 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.”


In Barcelona vs. Court of Appeals, a 2003 case, the Supreme Court stated,

“The obvious effect of the new Rules providing that “expert opinion need not be alleged” in the petition is that there is also no need to allege the root cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert opinion on the psychological incapacity, it follows that there is also no need to allege in the petition the root cause of the psychological incapacity.

“Science continues to explore, examine and explain how our brains work, respond to and control the human body. Scientists still do not understand everything there is to know about the root causes of psychological disorders. The root causes of many psychological disorders are still unknown to science even as their outward, physical manifestations are evident. Hence, what the new Rules require the petition to allege are the physical manifestations indicative of psychological incapacity.”

Effects of Art. 36

Q: What are the effects when a marriage is declared null and void under Article 36 of the Family Code?

A: Articles 50 up to 54 of the Family Code provide for the effects when a marriage is annulled or declared null and void. Among others, the children are considered as legitimate, and their presumptive legitimes must be given to them before the judgment can become final.

Rights of illegitimate children

Q: What are the rights of illegitimate children?

A: Under Republic Act 9255, Article 176 of the Family Code has been amended, allowing illegitimate children to use the surname of their father “if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. The father, however, has the right to institute an action before the regular courts to prove non-filiation during his lifetime.”

Also, whatever a legitimate child gets in terms of inheritance, the illegitimate child is entitled to one-half. For example, if the legitimate child gets one hundred thousand pesos as his share in the inheritance, the illegitimate child gets fifty thousand pesos.

Marriage certificate not in NSO files

Q: My husband found out that our marriage certificate is not on file with the National Statistics Office. He said that our marriage is therefore not valid, and that he can get married to another woman. Is my husband correct?

A: Your husband is wrong. The lack or absence of a marriage certificate (or contract) in the files of the NSO does not make your marriage invalid. The marriage certificate (or contract) is not an essential or formal requisite for the validity of a marriage under the Family Code.

The marriage certificate is a powerful documentary evidence of the existence of your marriage. Even then, however, the existence or validity of your marriage can be proven by other evidence - the marriage license, the testimony of the officiating minister and the witnesses, wedding pictures, etc.

Should your husband therefore insist on getting married again, you can charge him with bigamy under the Revised Penal Code.

Adoption and simulation of birth

(Note: Click the picture to download a free PDF newsletter on this topic.)

What is the difference between adoption and simulation of birth?

Adoption is the legal process by which a child becomes the legitimate child of the adopting person/s. The law which governs domestic adoption is Republic Act 8552 or the Domestic Adoption Act of 1998.

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, and 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.