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

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

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

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

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

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

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

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

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

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

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

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

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

Can RA 9255 be undone?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Some essential provisions:

Rule 3. What to File

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

3.1 Affidavit of Admission of Paternity

3.2 Private Handwritten Instrument

3.3 Affidavit to Use the Surname of the Father

Rule 8. Effects of Recognition

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

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

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

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

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

2. My critique of the Revised IRR:

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

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

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

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

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

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

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

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

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

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

(Click the graphic to view a much bigger copy)

Hold Departure Orders for OFWs under RA 9262

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

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

Who can issue a Hold Departure Order?

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

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

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

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

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

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

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

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

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

Preventing the sexual abuse of children

Republic Act 7610 is our country’s law on the prevention of child abuse and exploitation. Section 3 (b) of the law enumerates the various forms of child abuse, among others, as psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment. In this post, I will focus on the issue of child sexual abuse and how parents, schools and communities can deal proactively with this problem.
As a schoolteacher, I have known several students who were sexually abused. One student (valedictorian of his high school class) was sexually abused when he was about seven years old by a relative. Another student was repeatedly sexually abused by his two older brothers

As a lawyer, I have been consulted by pastors and members on issues dealing with sexual abuse not only in their communities but also in their churches. One pastor who ministers in a depressed area in Metro Manila told me of numerous cases of girls being abused by their own fathers.

There are numerous resources available on the Internet on the issue of child sexual abuse. What I will do in this post is to give highlights of these resources and provide the links so that you can read the articles in their entirety.

Facts and statistics on child abuse in the Philippines

1. http://www.childprotection.org.ph/ is a website that features organizations in the Philippines, both state-run and non-governmental, that work on the issue of child protection. It is a project supported by the Arci Cultura E Sviluppo, Save the Children (UK) Philippines, and UNICEF Manila with the participation of eight other organizations. Among its statistics on child abuse are:

There are 1.5 million streetchildren. DSWD estimates that this number increases annually by 6,365.

Of the 1.5 million streetchildren, 60,000 are prostituted (ECPAT 1996). The DSWD claims that the annual average increase of prostituted children is 3,266.

The Philippines is the fourth country with the most number of prostituted children (Intersect, December 1995).

Research studies conducted in schools show that for every 3 Filipino children, one child experiences abuse (Manila Bulletin, 11 February 1996). During the first semester of 1999 alone, there were 2,393 children who fell prey to rape, attempted rape, incest, acts of lasciviousness and prostitution (DSWD 1st semester, CY 1999).

2. Most Negros rape victims are children, from Philippine Daily Inquirer Visayas Bureau. by Romey G. Amarado

Police recorded a total of 145 rape cases in Negros Oriental between January and June this year. 122 of them were children according to the Women and Children's Concerns Desk (WCCD) of the PNP. Of the 51 cases that were directly recorded by the WCCD, 42 of them were children, half of them under the age of 12 and the rest, aged 15 to 17. The majority of the victims were girls and the youngest was a four-year-old boy raped by his uncle in Dumaguete City. Two cases were incest; eleven and sixteen year-old girls were the victims.

Last year 94 cases were reported, 70 of these were children. Twenty-four of the victims were 12 years old and younger. The youngest victim in 2000 was a two-year-old girl. Researches hold that most cases of rape are unreported and for every one that is reported at least ten more can be presumed. The WCCD is conducting children's rights awareness seminars which in turn, seems to be resulting in more reports of child abuse.

Myths and facts about sexual abuse

One great secular resource on child sexual abuse is the blog Telling It Like It Is, with articles written by Lin Burress. Very candidly, Lin reveals that she was a victim of sexual abuse as a child. Despite learning all she could about the issue and teaching her children about the warning signs, Lin says that “one of her sons was sexually abused at a young age by a highly respected church minister and close family friend, inside the church she attended at that time.”

In Lin's article entitled “Child Molestation Prevention Signs and Symptoms of Child Sexual Abuse”, she tackles the issues of (a) Signs of Sexual Abuse; (b) Why Don’t Children Tell? and (c) What Can Parents Do To Keep Children Safe?" Lin warns that:

Most sexual abuse is committed by people the child already knows such as friends, relatives, caregivers, trusted adults as well as complete strangers. Sexual abuse takes many forms and can involve forcing, coercing, bribing or threatening a child into sexual activity. The abuse often begins gradually and increases over time unless discovered.

Among other valuable articles in Lin’s blog are the following:

• Child Sexual Abuse: Facts vs. Myths
• Why Don’t Kids Tell? Talking to Your Children About Sexual Abuse
• Mother Blame: Blaming Mothers of Sexually Abused Children
• Child Safety and Child Sexual Abuse-The Series

Danger signals about sexual predators; local resources available

The Center for the Prevention & Treatment of Child Sexual Abuse (CPTCSA) is a non-profit, non-government, child-focused institution working towards a safe world for children that is free from sexual abuse exploitation. This NGO, based in UP Village, Quezon City, has numerous materials on the prevention of child sexual abuse, including a ten-session Sunday School material. Some materials are free while others are for sale.

In its flyers and posters, CPTCSA enumerates some of the early warning signals and telltale signs of sexual offenders which children - and their parents - should be aware of. These are:

1. Offender says you are special, different or the only one who really understands him

2. Treats you differently from other kids; gives you special privileges; treats you like an adult while he acts like a kid


3. Says he is teaching you sex education by showing you pornographic pictures or movies; he shows his body or touches yours


4. Puts lotion or ointment on you when your mother or others are not around (even when you don’t need the ointment)

5. Offenders hang around school, yard or park where children play; tells you “not to tell” or asks to “keep a secret”


6. Does not let you have friends or does not let you do things that other kids your age do


7. Comes into your bedroom for no reason


8. Asks you to do things that involve physical contact or touching of private parts


9. Offender wants to spend time alone with you; makes excuses for you to go places with him


10. Asks questions or makes accusations about sex between you and your boyfriends

11. “Accidentally” comes into the bathroom when you are taking a bath; not respecting your privacy


12. May fool your parents into allowing you to be “friends” through bribes and other tricks

The CPTCSA books and flyers also list “Wants to take your pictures” as an early warning signal and telltale sign of sexual offenders, but since photography is the number one hobby in the world, this sign should be taken not in isolation but in relation with the other warning signs.

Valuable resources on the issue of child sexual abuse and prevention

If you want to avail of print materials and videos on the issue of child sexual abuse and how you can proactively deal with this problem, please surf to the Reformed Churches in America website.

Laws, facts, and statistics on abortions in the Philippines

Note: Early morning today, according to my Bravenet site meter, this blog reached beyond 10,000 visitors since October 2007. With a daily average of 70+ visitors from more than 50 countries around the world, some 25,000 viewers will visit this site this year. Considering time spent on site and page views, not all of these visits are or will be significant. But the figures are gratifying for any blogger, nevertheless. The service I provide in this blog and in my Family Matters website is legal information and Biblical counseling. As I told one person who e-mailed me, what is legal is not always Biblical, and what is Biblical is not always legal. In this blog however, what is Biblical will always take precedence.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Consider the following facts and statistics:

1. In 2005, there were some 400,000 to 500,000 abortions in the Philippines. The World Health Organization estimate puts the figure at nearly 800,000, one of the highest rates of unsafe abortions in Asia.

2. Seventy percent of unwanted pregnancies in the Philippines end in abortion, according to the WHO. Pro-Life Philippines, an anti-abortion group, says that one of four pregnancies in the Philippines end in abortion.

3. According to the Department of Health, nearly 100,000 women who have unsafe abortions every year end up in the hospital.

4. As many as 17 percent of all unsafe abortions are done on teenage or young mothers, according to the DOH.

5. The national abortion ratio in 2000 was 18, meaning that 18 of every 100 pregnancies (live births and abortions) ended in abortion; the low estimate is 16 and the high estimate is 21.

6. Manila has the highest proportion of pregnancies ending in abortion (one in three), compared with about one in five in the rest of Luzon and about one in eight in Visayas and Mindanao.

7. 36 percent of Filipino women become pregnant before marriage and 45 percent of all pregnancies are either unwanted or ill-timed, according to the World Health Organization.

8. About 4 in 5 abortions in the Philippines are for economic reasons, according to a survey by the University of the Philippines. In many cases, said Jocelyn Pacete, a spokeswoman for Likhaan, a women's health group based in Manila, "the mother can't afford another child, so ends up choosing her five living children over the fetus in her womb."

9. Doctors who perform abortions clandestinely in clinics typically charge 2,000 to 5,000 pesos, or $37 to $93, according to one report. Many Filipinos cannot afford such fees, so they turn to Quiapo Church or to one of several other churches around the country near which abortifacients are sold.

10. In Quiapo, the best-selling abortifacient is Cytotec, a drug for ulcers. Before it was banned largely through the lobbying efforts of Pro-Life Philippines, Cytotec could be bought over the counter for 20 pesos. Today, it sells on the black market for 50 to 120 pesos per tablet. Most of the Cytotec now circulating is smuggled in from South Korea and Bangkok

These facts and statistics are from Philippines abortion crisis; Religious women turn to illegal procedures, by Carlos H. Conde, International Herald Tribune, Asia-Pacific, May 16, 2005, and from The Incidence of Induced Abortion in the Philippines: Current Level and Recent Trends, by Fatima Juarez, Josefina Cabigon, Susheela Singh and Rubina Hussain; International Family Planning Perspectives, Volume 31, Number 3, September 2005.

Abortion is illegal in the Philippines

The 1987 Constitution of the Philippines, specifically, Sec. 12, Art. II, pronounces that “the State shall equally protect the life of the mother and the life of the unborn from conception.”

Decades before the 1987 Constitution, the New Civil Code of the Philippines contained provisions protecting the unborn. These provisions are:

Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article.

Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty four hours after its complete delivery from the maternal womb.

The Revised Penal Code has several provisions penalizing abortion. These are:

• Article 255 Infanticide
• Article 256 Intentional abortion
• Article 257 Unintentional abortion
• Article 258 Abortion practiced by the woman herself or by her parents
• Article 259 Abortion practiced by a physician or midwife and dispensing of abortives

I am not aware of any case involving abortion which has reached the Supreme Court. However, the Court of Appeals (9th Division) tackled a medical malpractice suit involving the issues of abortion, ectopic pregnancy and dilatation and curettage in the case of Mrs. Lourdes Rolda versus Dr. Antonio Garcia (CA-G.R. CV NO. 62980). According to the trial court’s findings (which the Court of Appeals upheld), Dr. Garcia disregarded the ultra sound report that indicated “ectopic pregnancy if positive pregnancy test”. Dr. Garcia then proceeded to diagnose the case as one of abortion and subsequently performed dilatation and curettage. Several days after the D and C, after experiencing severe pain and blood discharge, Rolda was treated and operated at a hospital for ectopic pregnancy.
In the decision’s prefatory statement, the Court of Appeals said,

Some 4,000 years ago, the Code of Hammurabi then already provided: 'If a physician make a deep incision upon a man with his bronze lancet and cause the man’s death, or operate on the eye socket of a man with his bronze lancet and destroy the man’s eyes, they shall cut off his hand.'

Subsequently, Hippocrates wrote what was to become part of the healer’s oath: 'I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous…… While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot.' At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people.”

Inter-generational responsibility; implications on the sanctity of life

In the landmark case of Oposan vs. Factoran, the Supreme Court recognized the concept of inter-generational responsibility. Essentially, the principle means that the present generation holds the natural resource treasures of the earth in trust for the benefit, enjoyment and use of the generations of humankind yet to come. It is therefore a trust endowed upon the present generation as trustee and depository to use and enjoy. While the present generation has the right to use the earth’s resources, as a trustee and depository, it is also duty bound not to misuse or exhaust it, so that those of our species to come in much later years will still have something to use.

In this case, the petitioners, all minors, sought the help of the Supreme Court to order respondent factoran, then Secretary of DENR, to cancel all existing Timber License Agreement (TLA) in the country and to cease and desist from receiving, accepting, processing, renewing or approving new TLAs. They alleged that the massive commercial logging in the country was causing vast abuses on rainforest. They furthered the rights of their generation and the rights of the generations yet unborn to a balanced and healthful ecology.

Among other things, the Supreme Court justices said that they found no difficulty in ruling that the minors can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of inter-generational responsibility insofar as the right to a balanced and healthful ecology is concerned.

While the case revolved the issue of massive deforestation brought about by logging, ecology and the preservation of natural resources, the Court (to my mind)was in effect ruling on the sanctity of life. It would be absurd for our judicial system to uphold the right the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature without recognizing the sanctity of life, especially of the unborn.

HB 3227 (The Moses Law): stopping abortion and child abuse

House Bill 3227 or "The Safe Haven Act or The Moses Law" (authored by Rep. Eduardo Zialcita) permits parents to entrust the custody of their babies, who are up to two months old, to any hospital, medical emergency facility, police or fire station and other government agencies.

The "unwanted" babies will then be taken into the custody the Department of Social Welfare and Development (DSWD). The parents will not be required to give their names to the recipient of the child, and will be protected from arrest. Rep. Zialcita said he filed the bill "to address the moral degeneration of society as a result of the tragedies caused by abortion, child abuse, neglect and other forms of anti-life and anti-child acts."

Insightful articles and helpful websites on the abortion issue

Psalm 139 is perhaps the Bible’s most eloquent statement against abortion. The psalm goes like this:

1. O Lord, thou hast searched me, and known me.
2. Thou knowest my downsitting and mine uprising, thou understandest my thought afar off.
3. Thou compassest my path and my lying down, and art acquainted with all my ways.
4. For there is not a word in my tongue, but, lo, O Lord, thou knowest it altogether. 5. Thou hast beset me behind and before, and laid thine hand upon me.
6. Such knowledge is too wonderful for me; it is high, I cannot attain unto it.
7. Whither shall I go from thy spirit? or whither shall I flee from thy presence?
8. If I ascend up into heaven, thou art there: if I make my bed in hell, behold, thou art there.
9. If I take the wings of the morning, and dwell in the uttermost parts of the sea;
10. Even there shall thy hand lead me, and thy right hand shall hold me.
11. If I say, Surely the darkness shall cover me; even the night shall be light about me.
12. Yea, the darkness hideth not from thee; but the night shineth as the day: the darkness and the light are both alike to thee.
13. For thou hast possessed my reins: thou hast covered me in my mother's womb.
14. I will praise thee; for I am fearfully and wonderfully made: marvellous are thy works; and that my soul knoweth right well.
15. My substance was not hid from thee, when I was made in secret, and curiously wrought in the lowest parts of the earth.
16. Thine eyes did see my substance, yet being unperfect; and in thy book all my members were written, which in continuance were fashioned, when as yet there was none of them.17. How precious also are thy thoughts unto me, O God! how great is the sum of them!
18. If I should count them, they are more in number than the sand: when I awake, I am still with thee.

I highly recommend to you the following articles and websites on the issue of abortion:

• Abortion, by Sue Bohlin
• Arguments Against Abortion, by Kerby Anderson
• Partial Birth Abortion, by Kerby Anderson

If it aint broke, don’t fix it!

From conjugal partnership of gains to absolute community of property back to conjugal partnership of gains?

House Bill 2420 seeks to amend Article 75 of the Family Code of the Philippines by reinstating the system of conjugal partnership of gains as the basis for the property relations between husband and wife. The bill was authored by Cebu Representative Pablo Garcia with Representatives Mauricio G. Domogan, Elpidio Jr. F. Barzaga, Solomon Chungalao, Amado Bagatsing, Adam Relson Jala, Rufus Rodriguez, Liza Maza, Cinchona Cruz Gonzales, Raul Del Mar and Neptali Gonzales as co-sponsors. Congress passed the bill last February 5 and transmitted it to the Senate on February 11.

Article 75 of the Family Code provides for the absolute community of property as the default system of property relations between spouses. The article states,

The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.

I have previously written about the system of absolute community and you might want to re-read that article. Essentially, the system of ACP entitles the spouse to equal rights over the property acquired by the husband or the wife before and during the marriage (with certain exceptions), even with properties titled solely in the name of one spouse.

Reasons why the Family Code chose absolute community of property rather than conjugal partnership of gains

Prior to the Family Code’s effectivity in August 1988, a spouse had no right over the property that his or her partner acquired before marriage. The Spanish Civil Code, which was enforced from 1889 to 1950, and the New Civil Code, which was in effect from 1950 to 1986, both mandated the conjugal partnership of gains. The commission that crafted the Family Code believed that the ACP was more in keeping with the values of Filipinos than the CPG, and more conducive to the unity of the spouses and the oneness of the family since it was based on mutual trust and confidence.

Some of the members of the Family Code commission were legal luminaries like Justices JBL Reyes and Irene Cortes, Professors Flerida Ruth Romero, Ruben Balane, Esteban Bautista, Deans Bartolome Carale and Fortunato Gupit Jr. The commission worked on the draft of the Family Code for seven years and eight months from September 1979 to May 1987, with 182 meetings in all, each lasting from three to six hours.

You might remember that the Family Code took away (wisely in my opinion) the mayors’ right to solemnize marriages. But the Local Government Code of 1990, in a very unwise and politically-motivated accommodation, restored to the mayors the right to solemnize marriages. And now we have HB 2420 …

HB 2420, if passed into law, will seriously disadvantage women

Ar Sabangan of GMANews.TV has written an article entitled “Family Code amendment passed in silence, may disadvantage women”. The article cites Supreme Court Justice Artemio Panganiban, a retired judge and a MLQU law professor who all disagree with HB 2420.

Grace L. Plata of SunStar Davao has also written an article entitled “Judge airs concern over plan to amend Family Code.”

Adultery and concubinage under the Revised Penal Code; marital infidelity and psychological violence under RA 9262

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.” Summary: 1. Under the Revised Penal Code, adultery cannot be committed by the husband; it is a crime committed by the wife and her paramour. 2. Concubinage is committed by a husband in several ways: (a) by keeping a mistress in the conjugal dwelling, (b) by having sexual intercourse under scandalous circumstances with a woman who is not his wife; or (c) by cohabiting with his mistress in any other place. 3. If a husband wants to file an adultery case against his wife, he must also charge the paramour. In the same way, a wife must file the case for concubinage against her husband and his mistress; she cannot charge the mistress alone. 4. The heaviest penalty for adultery is imprisonment of six years (for the wife and her paramour). On the other hand, the heaviest penalty for concubinage is four years and two months (for the husband) and “destierro” or exile (for his mistress). 5. Since concubinage is difficult to prove in court, the wife should instead file a case of psychological violence due to marital infidelity under RA 9262. 6. The penalty for “psychological violence” under RA 9262 is a minimum of six years up to twelve years of imprisonment. The maximum penalty is imposed if the violence is committed by the husband or the intimate partner against the woman when she is pregnant or in the presence of their children. 7. Implications of the Supreme Court ruling on conspiracy in “Sharica Go-Tan case”: Can you file an RA 9262 case against your unfaithful husband AND his mistress? 8. Update as of December 2, 2018: House Bill No. 8604 seeks to remove the crimes of adultery and concubinage from the Revised Penal Code and to replace them with the crime of “sexual infidelity.” The Philippine Commission on Women recommends the decriminalizing of adultery and concubinage.

Adultery cannot be committed by the husband; it is a crime committed by the wife and her paramour

The Revised Penal Code defines adultery in Article 333: “Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void. Adultery shall be punished by prision correccional in its medium and maximum periods.”

What is the penalty for adultery?

The medium period of the penalty for adultery ranges from 2 years, 4 months and one day to 4 years and 2 months imprisonment. The maximum period ranges from to 4 years, 2 months and one day to 6 year imprisonment. Simply stated, the longest time a wife will be imprisoned is 6 years.

“Love Must Be Tough: New Hope for Marriages in Crisis” by Dr. James Dobson You’ve forgiven a thousand times. You’ve bent over backwards to make your partner feel loved and accepted. But the only reward for your loyalty has been anger, indifference, infidelity, or abuse. Your spouse may even be ready to walk out the door. Do you feel like all is lost? Are you ready to give up? There IS still hope. Dr. Dobson’s “tough love” principles have proven to be uniquely valuable and effective. Unlike most approaches to marriage crisis, the strategy in this groundbreaking classic does not require the willing cooperation of both spouses. “Love Must Be Tough” offers the guidance that gives you the best chance of rekindling romance, renewing your relationship, and drawing your partner back into your arms. “Love Must Be Tough” free PDF from Tyndale House (TOC, Introduction, Chapter 1)

What is concubinage?

The Revised Penal Code defines and penalizes “concubinage” in Article 334: “Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.”

A husband commits concubinage in several ways:

(1) by keeping a mistress in the conjugal dwelling,

(2) by having sexual intercourse under scandalous circumstances with a woman who is not his wife; or

(3) by cohabiting with his mistress in any other place.

What is the penalty for concubinage?

For the husband, the penalty of “prision correccional” in its minimum period is imprisonment from 6 months and one day to 2 years and 4 months. In its medium period, the penalty is from 2 years, 4 months, and one day to 4 years and 2 months. Simply stated, the longest time that a husband will be imprisoned is 4 years and 2 months.

On the other hand, the penalty for the mistress is “destierro” (exile), not imprisonment.

Why is concubinage difficult to prove in court?

In order to charge her husband with concubinage, the wife has to prove that he has committed any or all of the three acts mentioned above.

With number (1) above, I think you will agree with me that only a few men would dare to bring or allow his mistress to live in the conjugal dwelling. Not unless, of course, if the wife allows it for whatever reason …

As to number (2) above, an adulterous affair by its nature is done in secret; a man and his paramour cannot be expected to have sexual intercourse under scandalous circumstances.

Now, number (3) above. If a wife seeks legal help in filing a case for concubinage, lawyers will ask her for evidence that proves cohabitation. The evidence may be receipts for the apartment where the man and mistress are living, receipts for Meralco and PLDT, and affidavits of eyewitnesses that the man and mistress are really cohabiting, etc.

If the evidence merely proves that the husband is having an extra-marital affair, he cannot be charged with concubinage.

If the other woman gets pregnant and gives birth, can it be used as evidence for concubinage against the husband? No, the pregnancy is not necessarily proof of cohabitation. Why? Again, please take note of how concubinage is committed as I discussed under numbers (1) up to (3) above.

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Inequalities in the law and discrimination against women

The provisions of the Revised Penal Code are stacked against the wife. If she commits even just one case of marital infidelity, she, along with the paramour, can be immediately charged criminally.

But the husband who commits numerous acts of marital infidelity cannot be sued by his wife for adultery (since under Article 333, adultery is a crime committed by the wife and her paramour). The philandering husband must be sued under Article 334 for concubinage. The problem is, concubinage is much more difficult to prove in court.

What’s the reason for this inequality — the heavier penalty for the wife — under the Revised Penal Code? Well, the law seeks to prevent the introduction of spurious heirs into the family, which can happen in adultery, not in concubinage.

Because concubinage is difficult to prove in court, it’s better to file a case of psychological violence under RA 9262

Can you file a case of conspiracy to commit RA 9262 against your unfaithful husband AND his mistress? “Sharica Mari Go-Tan vs. Spouses Perfecto Tan and Juanita Tan” G.R. No. 168852, September 30, 2008 Background facts: After six years of marriage and two children, Sharica filed an RA 9262 case against her husband Steven and her parents-in-law Perfecto and Juanita Tan. She also asked the Quezon City Regional Trial Court Branch 94 to issue a TPO (Temporary Protection Order) against her husband and her parents-in-law; she alleged that, in conspiracy with her parents-in-law, Steven was causing verbal, psychological, and economic abuses upon her. In their defense, the parents-in-law claimed that they cannot be charged with violation of RA 9262 because Section 3 of that law explicitly provides that the offender should be related to the victim only by marriage, a former marriage, or a dating or sexual relationship. The Regional Trial Court ruled in favor of the parents-in-law. Sharica thus appealed to the Supreme Court. Issues raised by Sharica before the Supreme Court: Sharica claimed that RA 9262 must be understood in the light of the provisions of Section 47 of RA 9262 which explicitly provides for the suppletory application of the Revised Penal Code (RPC). Accordingly, the provision on “conspiracy” under Article 8 of the RPC can be applied to RA 9262. Sharica claimed that Steven and her parents-in-law had “community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally,emotionally, mentally, and physically.” Supreme Court ruling: The Court ruled in Sharica’s favor; it stated that the provisions of the Revised Penal Code can be applied suppletorily to RA 9262. Thus, her parents-in-law can be charged as co-conspirators with her husband Steven. Implications of the Sharica Go-Tan ruling on conspiracy: If you’re an abused or abandoned wife, you can file an RA 9262 case against both your unfaithful husband and his mistress. With the proper proof, you can claim that the abusive acts that your husband committed against you were done in conspiracy with his mistress. (This means that, if convicted, the penalty for your unfaithful husband will also be the penalty for his mistress.) Consult your lawyer about the kind of proof that you need.

Republic Act 9262 or the “Anti-Violence Against Women and their Children Act of 2004” has now come to the rescue of women. Philandering husbands can now be charged criminally even for just one incident of marital infidelity under the “psychological violence” provision of RA 9262.

RA 9262 defines psychological violence as:

“acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.”

What is the penalty for “psychological violence” under RA 9262?

The penalty for “psychological violence” is a minimum of six years up to twelve years of imprisonment. The maximum penalty is imposed if the violence is committed by the intimate partner against the woman when she is pregnant or in the presence of the common children.

(For a detailed discussion on what psychological violence is, please read “Hope and help for the battered woman (4): Emotional abuse/psychological violence in my Salt and Light blog.)

Government offices where women can ask for help

For RA 9262 and other cases involving women, you can ask for help from the following:

Department of Social Welfare and Development (DSWD) Crisis Intervention Unit (CIU) Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel. Nos.: (02) 734-8617 to 18

Philippine National Police (PNP) Women and Children’s Concern Division (WCCD) Tel. No.: (02) 723-0401 loc. 3480 Call or text 117 (PATROL 117)

National Bureau of Investigation (NBI) Violence Against Women and Children’s Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403

DOJ Public Attorney’s Office Women's Desk
Tel. Nos.: (02) 929-9010; 929-9436 to 37

Philippine General Hospital (PGH) Women’s Desk Tel. Nos.: (02) 524-2990; 521-8450 loc. 3816

Women’s Crisis Center Women and Children Crisis Care & Protection Unit – East Avenue Medical Center (WCCCPU-EAMC) Tel. Nos.: (02) 926-7744; 922-5235

Is there life or hope after an extramarital affair?

Please read my Salt and Light blog articles on the issue of marital infidelity:

Surviving Marital Infidelity
The grass is not greener on the other side
“Sad Movies Always Make Me Cry”
Marital infidelity: causes, consequences and conclusions
Priceless counsel from a bargain sale book: “How to save your marriage alone”

Updates as of December 2, 2018:

A. House Bill No. 8604 (filed by DIWA party-list representative Pepito M. Pico on November 19, 2018) seeks to remove the crimes of adultery and concubinage from the Revised Penal Code and to replace them with the crime of “sexual infidelity.”

Under House Bill No. 8604:

1. “Sexual infidelity” is committed by the unfaithful spouse — either the husband or the wife — with a paramour.

2. The penalty for the unfaithful husband or wife is “prision correccional” in its minimum period (from 6 months and one day to 2 years and 4 months).

3. When the unfaithful husband or wife keeps the paramour in the conjugal dwelling, the penalty is “prision correccional” in its maximum period (from 4 years, 2 months, and 1 day to 6 years).

4. The penalty for the unfaithful husband or wife will be the same penalty for the paramour.

B. “Eliminating Discrimination Against Women in the Revised Penal Code (RPC): Decriminalizing Adultery and Concubinage” by the Philippine Commission on Women:

Adultery and concubinage should be decriminalized or removed from the RPC since they involve violation of marriage contract, hence, liability should only be civil in nature. Taking off adultery and concubinage from the criminal offenses should however, still have the following legal effects:

1. Adultery and concubinage are still unlawful under the Family Code (civil matter), so an aggrieved/offended/victimized spouse can still file for legal separation on the ground of sexual infidelity, or a possible manifestation of psychological incapacity as a ground for declaration of nullity of a marriage;

2. Marital infidelity (concubinage) will continue to be one of the manifestations of psychological violence against women under RA 9262 (Anti-Violence Against Women and Their Children Act), a special law that protects women and their children from abuses and violence by their intimate partners;

3. Sexual infidelity (adultery or concubinage) will continue to be one of the bases for an aggrieved/offended/victimized spouse to sue for ordinary damages under the Civil Code (i.e. psychological pain and suffering) against the offending/guilty spouse and the third party involved.

Can a husband and wife in a notarized document declare that they are free to marry other persons and they will not file charges against each other?

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Several individuals, either personally or by e-mail, have asked me about situations where the husband and wife have decided to call it quits after a long period of physical separation, physical or psychological abuse, or because of the loss of love for each other.

Instead of going through the judicial process of having their marriage declared null and void, however, the husband and wife have asked a lawyer-notary public (in some instances, barangay officials or even a judge) to prepare and notarize a document where they have declared that both parties are now free to marry other persons and that they will not file charges of adultery or concubinage against each other. The question I have been asked is, Are these documents legally valid?

This kind of document is illegal, immoral, and void because it undermines and subverts the institution of marriage

The Supreme Court has ruled consistently since 1933 (that’s 75 years ago!) that such documents are illegal, immoral, and void because they undermine and subvert the institution of marriage (Panganiban vs. Borromeo 58 Phil. 367). Judges, lawyers and notaries-public who have prepared and signed such documents have been reprimanded severely (in terms of suspension or disbarment) by the Court. And yet, either because of ignorance or misconceptions of the law by the man on the street or by the desire of some lawyers-notaries public to make a fast buck, this kind of agreement and document still seem to be floating around.

Supreme Court ruling in “Albano vs. Judge Gapusan”: Judges, lawyers and notaries-public who prepare this kind of document can be suspended or disbarred

Posted below are excerpts from the 1976 decision of the Supreme Court in the case of “Redentor Albano, complainant, vs. Municipal Judge Patrocinio C. Gapusan of Dumalneg, Ilocos Norte, respondent.” In this case, Judge Gapusan (before his appointment to the judiciary) prepared and notarized a document providing for the personal separation of husband and wife and the extrajudicial liquidation of their conjugal partnership. The Supreme Court censured Judge Gapusan for his act of preparing and notarizing such a document.

Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal Judge Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos Norte with incompetence and Ignorance of the law for having prepared and notarized a document providing for the personal separation of husband and wife and the extrajudicial liquidation of their conjugal partnership and (2) with having allegedly influenced Judge Zacarias A. Crispin of the Court of First Instance of Ilocos Norte in deciding two criminal cases.

In 1941 or five years before his appointment to the bench, respondent Gapusan notarized a document for the personal separation of the spouses Valentina Andres and Guillermo Maligta of Barrio 6, Vintar, Ilocos Norte and for the extrajudicial liquidation of their conjugal partnership.

It was stipulated in that document that if either spouse should commit adultery or concubinage, as the case may be, then the other should refrain from filing an action against the other.

Judge Gapusan denied that he drafted the agreement. He explained that the spouses had been separated for a long time when they signed the separation agreement and that the wife had begotten children with her paramour. He said that there was a stipulation in the agreement that the spouses would live together in case of reconciliation. His belief was that the separation agreement forestalled the occurrence of violent incidents between the spouses.

Albano in filing the malpractice charge is in effect asking this Court to take belated disciplinary action against Judge Gapusan as a member of the bar or as a notary. (He was admitted to the bar in 1937).

There is no question that the covenants contained in the said separation agreement are contrary to law, morals and good customs (Biton vs. Momongan, 62 Phil. 7). Those stipulations undermine the institutions of marriage and the family, "Marriage is not a mere contract but an inviolable social institution". "The family is a basic social institution which public policy cherishes and protects." (Arts. 52 and 216, Civil Code). Marriage and the family are the bases of human society throughout the civilized world (Adong vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855, 864; Goitia vs. Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102 Phil. 168).

To preserve the institutions of marriage and the family, the law considers as void “any contract for personal separation between husband and wife” and "every extrajudicial agreement, during the marriage, for the dissolution of the conjugal partnership" (Art. 221, Civil Code). Before the new Civil Code, it was held that the extrajudicial dissolution of the conjugal partnership without judicial sanction was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15).

A notary should not facilitate the disintegration of a marriage and the family by encouraging the separation of the spouses and extrajudically dissolving the conjugal partnership. Notaries were severely censured by this Court for notarizing documents which subvert the institutions of marriage and the family (Selanova vs. Mendoza, Adm. Matter No. 804-CJ, May 19, 1975, 64 SCRA 69; Miranda vs. Fuentes, Adm. Case No. 241, April 30, 1966, 16 SCRA 802; Biton vs. Momongan, supra,, Panganiban vs. Borromeo, 58 Phil. 367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil. 277).

Respondent Gapusan as a member of the bar should be censured for having notarized the void separation agreement already mentioned.

(Emphasis by boldfacing supplied)

Republic Act No. 9439 Hospital Detention Law

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The complete text of the law (promulgated on April 27, 2007) is posted below:

Section 1. It shall be unlawful for any hospital or medical clinic in the country to detain or to otherwise cause, directly or indirectly, the detention of patients who have fully or partially recovered or have been adequately attended to or who may have died, for reasons of nonpayment in part or in full of hospital bills or medical expenses.

Section 2. Patients who have fully or partially recovered and who already wish to leave the hospital or medical clinic but are financially incapable to settle, in part or in full, their hospitalization expenses, including professional fees and medicines, shall be allowed to leave the hospital or medical clinic, with a right to demand the issuance of the corresponding medical certificate and other pertinent papers required for the release of the patient from the hospital or medical clinic upon the execution of a promissory note covering the unpaid obligation. The promissory note shall be secured by either a mortgage or by a guarantee of a co-maker, who will be jointly and severally liable with the patient for the unpaid obligation. In the case of a deceased patient, the corresponding death certificate and other documents required for interment and other purposes shall be released to any of his surviving relatives requesting for the same: Provided, however, That patients who stayed in private rooms shall not be covered by this Act.

Section 3. Any officer or employee of the hospital or medical clinic responsible for releasing patients, who violates the provisions of this Act shall be punished by a fine of not less than Twenty thousand pesos (P20,000.00), but not more than Fifty thousand pesos (P50,000.00), or imprisonment of not less than one month, but not more than six months, or both such fine and imprisonment, at the discretion of the proper court.

Section 4. The Department of Health shall promulgate the necessary rules and regulations to carry out the provisions of this Act.

Section 5. If any provision of this Act is declared void and unconstitutional the remaining provisions hereof not affected thereby shall remain in full force and effect.

Section 6. All laws, decrees, orders, rules and regulations or part thereof inconsistent with this Act are hereby repealed or amended accordingly.

Section 7. This Act shall take effect fifteen (15) days after its publication in two national newspapers of general circulation.

In compliance with Section 4 of RA 9439, Department of Health issued last January 2008 Administrative Order No. 2008-0001 or the Implementing Rules and Regulations of RA 9439.

If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?

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It is not accurate to say that if spouses have not seen or communicated with each other for more than seven years that the marriage is terminated automatically or is considered void. In situations where one spouse has not seen the other spouse for a number of years or does not know what has happened to the other spouse, he or she must file a petition asking the court to declare the missing spouse as presumptively dead for purposes of remarriage.

Petition for declaration of presumptive death for purposes of remarriage

Articles 41 to 44 of the Family Code deal with the declaration of presumptive death for purposes of remarriage. There are a lot of misconceptions, however, about this part of the Family Code. Please let me explain.

1. People cannot take the law into their own hands.

Article 40 provides that persons cannot take the law into their own hands and simply declare by themselves that their marriage is void. A person wanting to remarry must first obtain a court decision declaring the previous marriage void before getting married again.

2. Period of absence: four years for ordinary absence, two years for extraordinary absence.

The Family Code only provides for a period of two years (extraordinary absence like in war, shipwreck, storm, etc) or four years (ordinary absence) for a person to be able to go to court and file a petition for declaration of presumptive death of the missing spouse. The seven years separation that people usually refer to was previously provided for by the New Civil Code.

3. Proof is required that the petitioner tried to locate the missing spouse.

The court will however require the petitioner to present proof that he or she exerted earnest and diligent efforts to locate the whereabouts of the missing spouse. These efforts include asking the police or NBI for help in locating the missing spouse, using the media like newspapers or radio, etc. The court will deny the petition if the petitioner cannot present such evidence of earnest and diligent efforts to locate the missing spouse.

4. If the court declares the missing spouse as presumptively dead, then the petitioner will be able to remarry.

5. Reappearance of the missing spouse:

But the problem is, if any person (friend, relative, barangay official, etc) discovers that the missing spouse is really alive, then that person can file an affidavit of reappearance with the Local Civil Registrar. If the petitioner had already gotten married, then that subsequent marriage is automatically terminated (subject to conditions under Article 42 of the FC).

Posted below are the specific provisions of the Family Code on this matter:

Art. 40. 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. (n)

Art. 41. 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.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)

Art. 42. The subsequent marriage referred to in the preceding Article 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. (n)

Art. 43. The termination of the subsequent marriage referred to in the preceding Article 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.(n)

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)