The stories and characters are fictional that were created together with the legal advices from the best of legal research capabilities of the author citing direct statutory provisions from the Civil Code of the Philippines, Family Code, Revised Penal Code and Jurisprudence. Please be made aware that the author is not a practicing lawyer and is not bound herewith to provide any legal counsel. Consequently, further research and review of related case laws are highly recommended.

BLOG # 4

Property Relations Between Spouses

Under the regime of absolute community property, all properties owned by the spouses before the marriage and those that they acquire during the marriage shall form part of the absolute community and is shared equally by husband and wife (Article 91, Family Code).

June, historically the most popular month for weddings, has come and gone. Nonetheless, wedding bells continue to ring all over the place. Many people are getting married. Some people are having bridal showers. Others are preoccupied with their prenup shot. Indeed, couples preparing to marry spend months, if not years, organizing the perfect wedding. Preparing for marriage, like wedding preparation, involves a significant amount of time and work. Couples often focus their energies on preparing for the “big day,” without giving much attention to preparing for the marriage itself. Other than the wedding day, there are a few things to consider before tying the marriage.

Finances and property relations between potential spouses are among the numerous factors to consider. Couples may engage into an agreement outlining their property rights and responsibilities during their marriage. This is known as a marital settlement, or more colloquially, a prenuptial agreement. The marriage settlement, once finalized, will control the property relations between spouses during the marriage. In the absence of such a provision, the property relations between spouses shall be managed by the system of absolute community of property, which is the Family Code’s default property regime (Article 75, Family Code). In other words, unless the parties engage into a prenuptial agreement, the absolute community of property should be the property regime for all marriages. The conjugal partnership of profits shall be the default property regime for marriages that occurred prior to the effective date of the Family Code in 1988.

The marital settlement must meet certain formal standards in order to be legitimate. It must be in writing, signed by both parties, and completed prior to the wedding (Article 77, Family Code). When one of the parties to the marriage settlement is disabled, his legal guardian must also sign the marriage settlement (Article 78, Family Code). Once these conditions are met, the marriage agreement will bind the partners during their marriage.

However, in order for a marriage settlement to have any effect on third parties, it must be registered in both the local civil registry where the marriage contract is entered and the relevant registrar of deeds (Article 77, Family Code). Third parties that do business with either or both spouses have the right to assume that they are subject to the absolute community of property system.

Any changes to the marriage agreement must also be made in writing and prior to the wedding (Article 77, Family Code). After the marriage is celebrated and a certain regime has been agreed upon in the marital settlement, the spouses cannot simply change their property relations. During the marriage, the spouses’ property regime could no longer be changed or amended unless with the previous consent of the court in the following cases:

(a) the absolute community or marital union was dissolved and liquidated as a result of a divorce decision;

(b) lawfully separated couples reconciled and decided to re-establish their prior property regime;

(c) where there is judicial property separation because one spouse abandons the other without reasonable cause or fails to meet his or her commitments to the family;

(d) in circumstances of involuntary property regime breakup; and (e) the spouses jointly petitioned for the voluntary dissolution of their absolute community or marital partnership of profits (Pana vs. Heirs of Juanite, Sr., et. al., G.R. No. 164201, 10 December 2012). In all cases of post-marriage alteration, the spouses must seek the court’s involvement and permission.

The marriage settlement will be null and void if the marriage does not take place. However, elements of the marriage settlement that are not reliant on the celebration of the marriage, such as contractual support and acknowledgement of the paternity of an illegitimate child, would remain lawful despite the marriage not being celebrated (Article 81, Family Code). For example, if the man accepts the woman’s kid as his own and promises to maintain the child in their marriage settlement, the provision in the marriage settlement remains legitimate even if the marriage does not take place.

MARRIAGE SETTLEMENT

– In terms of property relations, the spouses will be guided principally by their settlement.

REQUIREMENTS:

  1. It must be in writing.
  2. The parties have signed this agreement.
  3. Made prior to the marriage celebration
  4. Must be documented at the local civil registrar where the marriage contract is recorded, as well as in the applicable property registers.

– An oral marriage settlement is null and invalid, and it cannot be validated by a claim of partial execution or the absence of opposition.

– The contractual parties can agree on whatever settlement agreement they like.

EXCEPT:

1) In violation of the law, public policy, and the Family Code

2) That their property ties will begin at a period other than the marriage celebration (Art. 88 and 107 FC)

3) Allowing them to make significant donations to one another (Art. 87 FC)

4) The automatic changeover of property regimes at a specific moment during marriage is similarly null and invalid.

– If there is no settlement or if it is null and invalid, the absolute community of property shall take precedence.

– Mixed-Up Property Regime: Spouses shall maintain as their own exclusive property any incomes received during the marriage, but any real estate acquired from the same must be considered as commonly held, while all personal properties shall be considered exclusively owned.

ON THE FAIRNESS OF THE SETTLEMENT

Considerations for the settlement’s fairness and reasonableness:

1) The parties’ relative situation

2) Age Groups

3) Fitness and experience

4) Characteristics

5) Ties and relationships within the family

6) Prerequisites

7) Other indicators that the deal was reached in good faith

– If the agreement is determined to be unfair and/or irrational, its effectiveness can still be preserved if it can be demonstrated that the disadvantaged spouse had some comprehension of the rights to be relinquished, prejudiced, or impacted by the agreement when they signed.

– The spouse asserting the invalidity of an agreement bears the burden of evidence.

EXCEPTION: If the contract appears to be unreasonable on its face and there is a presumption of concealment, the burden is on the opposing party to show the legitimacy.

ON LOCAL CUSTOMS

– When the parties state that local custom shall apply or that the absolute community shall not govern without specifying which regime should be used, local custom shall apply.

– If the settlement specifies that neither absolute community provision is void and that the absolute community or local custom should prevail without monitoring what to use, such provision is void and the absolute community shall be utilized.

CIVIL INTERDICTION

– Shall deprive the offender of the rights of parental authority or guardianship, either as to the person or property of any ward, of martial authority, of the right to manage his property, and of the right to dispose of such property by any act or conveyance inter vivos during the term of his sentence.

– It is mandatory for the court-appointed guardian to be made a party to the written marriage agreement.

ON MINORITY

– An 18-year-old can execute a marriage contract without the approval of his or her parents since, once emancipated, an 18-year-old becomes qualified and accountable for all civil life activities.

RULES GOVERNING PROPERTY RELATIONS

– Property relations between spouses are controlled by their will, provided that their agreement is not contradictory to law, public policy, or the Family Code.

– If the spouses are Filipinos, their property relations shall be controlled by Philippine laws until otherwise agreed upon, regardless of where they are located.

EXCEPTION:

1) Real and personal property are always subject to the legislation of the nation in which they are located.

2) If both spouses are foreign nationals who have married in the Philippines.

– Reimbursement will occur at the time of property liquidation if a declaration of property separation has previously been made.

The obligation of the other spouse in the event that the contracting spouse sells the joint property is a commonly addressed topic. It would depend on whether the other spouse was aware of and consented to the transaction. If the husband sold the property without the wife’s permission and knowledge, the sale is null and invalid. The transaction, however, will be deemed a continuing offer and may be consummated upon acceptance by the other spouse. If, on the other hand, the husband sold the community property with the wife’s knowledge but without her assent, the contract is only annullable. The wife has five years from the date of the contract to go to court and seek the contract’s annulment.

BLOG # 3

Parental Authority and Custody

Child support is frequently a source of contention between divorcing couples, slowing down processes and resulting in more heated talks. The Philippines has a number of laws governing child custody and maintenance.

Child support is often given to the custodial parent by the non-custodial parent, however it can also be paid to another person with custody of the child, such as a relative or guardian.

  • Non-custodial parent: A parent who does not have parental control over their kid.
  • Custodial parent: A parent who has parental authority over their kid, which implies they have the “right and obligation” to care for the child.

Both parents have custody in the event of a married pair. If a woman gives birth outside of marriage, she automatically obtains custody of the kid, while the father can seek custody through the courts.

Child support is a form of regular financial support used to meet the requirements of a child. It is usually paid by the non-custodial parent to the custodial parent, although it can also be paid by both parents if someone else, such as a relative, has custody of the kid.

In the Philippines, the law states that child support is for the kid’s “indispensable” requirements, which include food, shelter, clothing, medical care, education, and transportation.

Custody is separated into two categories: legal custody and physical custody. Legal custody implies that the parent has the authority to make key choices regarding the child’s health, education, safety, and well-being. The child’s physical custody relates to whose parent he or she lives with.

The primary standard that the court applies to evaluate custody cases is always, ‘what is in the best interests of the kid.’ When making this determination, the court must consider numerous variables.

When the court makes a custody decision, the following considerations are considered:

(1) Emotional and physical surroundings;

(2) the child’s personal safety;

(3) the moral climate of the home;

(4) the parents’ emotional and physical wellbeing;

(5) the children’s ages;

(6) The child’s preference;

(7) the parents’ previous behavior, especially any history of maltreatment;

(8) each parent’s capacity to care for the child;

(9), as well as the significance of religious upbringing inside the family.

Once a custody ruling is made by the court, the court may impose one of numerous custody arrangements.

The court may order:

(1) physical or legal custody only;

(2) exclusive physical custody along with shared legal custody;

(3) Shared custody The word “joint” does not imply “equal.” Instead, joint signifies that both parties are equally responsible for raising the child.

The most common arrangement is for the parties to share joint legal custody, with the wife/spouse receiving physical or residential custody in most circumstances. When one parent is granted custody, the other parent is granted visitation privileges. The noncustodial parent is another term for this parent. The number of visiting privileges granted to a parent varies depending on the circumstances of the case. Cases involving visitation rights range from monitored visitation at the courthouse to dividing parental time evenly.

In many circumstances, the court will take into account the children’s preferences if they feel they are of sufficient age to make an informed choice. The youngster will subsequently be interviewed in chambers by the court. The court will then ask the youngster if he or she has a preference for custody. An in-camera interview is a form of interview with the youngster. The purpose of this sort of conversation is to help the court identify the child’s wishes. Younger children are frequently impacted by the parent with whom they reside. As a result, a young child’s answers may be distorted at times. Older children, on the other hand, are far less impacted by their parents. When deciding how much weight to place on the conclusion of the interview, a court always considers the child’s age.

Parental Authority

Defined as the set of rights and duties that parents have with connection to their children’s person and property until they reach the age of majority or emancipation, and even after that in certain circumstances.

It is the legal organization through which parents govern and safeguard their unemancipated offspring to the degree necessitated by the latter’s requirements.

Caring for and nurturing such children in order to foster civic consciousness and efficiency, as well as the development of moral, mental, and physical character and well-being.

Parental authority is exercised over unemancipated children.

At the age of eighteen (18) years old, parental control is presumed terminated, except in particular conditions stipulated by law.

There are various situations in which parental authority must be exerted notwithstanding the child’s freedom. If a person under the age of twenty-one (21) wishes to marry, parental authorization is required.

BLOG # 2

Domestic Violence

Marriage serves a social function as a fundamental personal right afforded to both men and women. It presumably gives rise to the family, the most fundamental unit of society and critical to the survival of civilization. A marriage in the English common law tradition was a contract based on a voluntary private agreement between a man and a woman to become husband and wife. The core premise of marriage as a legal contract continues today, although the legal duties have changed according to societal developments.

Marriage, in particular, is regarded by Philippine law as a specific contract of permanent union entered into in conformity with law between a man and a woman for the formation of conjugal and family life. It is the bedrock of the family and an unbreakable social institution.

Domestic abuse, also called “domestic violence” or “intimate partner violence”, can be defined as a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner. Abuse is physical, sexual, emotional, economic or psychological actions or threats of actions that influence another person. This includes any behaviors that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure, or wound someone. Domestic abuse can happen to anyone of any race, age, sexual orientation, religion, or gender. It can occur within a range of relationships including couples who are married, living together or dating. Domestic violence affects people of all socioeconomic backgrounds and education levels. 

Domestic violence, sometimes known as “beating,” is defined as abusive power and control techniques in family, household, and intimate partner relationships.

Domestic violence is defined as “a pattern of numerous actions aimed at gaining and maintaining power and control over an intimate partner, such as physical violence, emotional abuse, victim isolation, economic abuse, intimidation, coercion, and threats.”

Legal separation differs from annulment or declaration of nullity, which determines whether the marriage is invalid or voidable. “For richer, and for poorer.” These are frequently heard from newlyweds pledging to stay together in marriage no matter what the chances are. However, for couples wishing to dissolve their marriage, being destitute may not be an option, and so a legal tug of war over conjugal possessions is frequently the outcome.

The lengthy legal process and high expense of annulling a marriage, on the other hand, are insufficient to deter couples from planning a wonderful wedding and a long-lasting marriage.

Regardless, the data reveal that the dreaming remained a dream.

According to Article 35 of the Family Code, the following marriages are null and void from the start: (1) Those contracted by any party under the age of eighteen, even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages, unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered by a license; (4) Those solemnized without license, except those covered by a license

Given that the Philippines’ family code laws forbid the option of divorce, being legally separated is the clearest way to settle disputes and demands, and hopefully to establish a setup that will best promote the wellness of not just the married couple, but also all the affected members of the family when reality dictates that keeping their marriage by living together only leads into further damages.

According to Article 55 of the Family Code, a petition for legal separation may be submitted on any of the following grounds:(1) Recurring physical violence or grossly abusive behavior directed against the petitioner, a common child, or a child of the petitioner; (2) Physical assault or moral pressure used to compel the petitioner to change religious or political involvement; (3) Attempt by respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to take part in prostitution, or connivance in such an attempt (4) Final judgment jailing the respondent to imprisonment for more than six years, even if pardoned; (5) Drug addiction or repetitive alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting of a subsequent bigamous marriage by the respondent, whether in the Philippines or abroad; (8) Sexual infidelity or immorality; (9) Attempt by the respondent against the respondent (9) Attempt by the respondent on the petitioner’s life; or (10) Abandonment of petitioner by respondent for more than one year without justification.

Women are subjected to violence both within and outside of their homes. Domestic abuse includes any act of intimidation or assault that compels a woman to seek restitution by breaking the silence enforced by a patriarchal culture. However, the culturally specific meaning of domestic violence is not included in this operational definition. Sanctioned kinds of abuse (such as uneven access to household resources or other limitations), until contested on her behalf by the women or others. In the Indian context, such violence includes threatening behaviors by members (both men and women) of her married family, which is defined as physical, mental, emotional, and sexual abuse of a woman in her intimate connection. Such systematic violence, which is often tolerated by society, reinforces gender inequality by restricting a woman’s independence and right to self-determination. In turn, the persistent inequities in an individual’s rights to family and community resources (based on his/her gender) create an environment for violence. The emphasis on marital violence here is not intended to dismiss the reality of gender violence or inequities in the parental home.

Why, therefore, should severing marital connections be a major comfort under the aforementioned circumstances? The problem of marital violence is not easy to solve. It has subtle subtleties that defy logic and judgment. One would wonder why a damaged woman would stay with an abusive husband. Such a question belongs in a psychology textbook. Rather, it should be acknowledged that battery is a complicated issue, and maybe allowing the battered woman the opportunity to dissolve marital connections against her abuser is exactly what she needs to properly recover from the crippling consequences of marital violence.

Viewing this scenario, if the costs of forcing married couples to stay together for the sake of having a complete family outweigh the purpose of growing in a pleasant and healthy home, It would better that they legally separate. I believe it is foolish for parents to keep a marriage that has already lost love and respect just to be “complete”. Having a complete family will never ensure a healthy environment in which each member is provided with all levels of need, particularly those that go beyond physiological needs. Although going through legal procedures is stressful and complicated, it is only through this choice that the spouses can clearly define what needs to be changed for the betterment of their situation. I believe that all of the effects of being legally separated are sufficient to ensure that the family is placed in the best possible situation. Since the spouses would no longer need to be physically together, they would be able to focus on their own duties without being affected by one other’s behaviors. Moreover, the property relations, custody, and support for the children will have a clear plan, making it easier for both parties to fulfill their obligations.

According to Article 74 of the Code, the property relationship between a husband and wife is controlled by (1) marriage settlements executed before the marriage; (2) by the provisions of this Code; and (3) by the local custom. 

Are You Being Abused?

Look over the following questions to think about how you are being treated and how you treat your partner.

Recognizing the signs of domestic abuse

Does your partner…

  • Embarrass or make fun of you in front of your friends or family?
  • Put down your accomplishments?
  • Make you feel like you are unable to make decisions?
  • Use intimidation or threats to gain compliance?
  • Tell you that you are nothing without them?
  • Treat you roughly—grab, push, pinch, shove or hit you?
  • Call you several times a night or show up to make sure you are where you said you would be?
  • Use drugs or alcohol as an excuse for saying hurtful things or abusing you?
  • Blame you for how they feel or act?
  • Pressure you sexually for things you aren’t ready for?
  • Make you feel like there is “no way out” of the relationship?
  • Prevent you from doing things you want – like spending time with friends or family?
  • Try to keep you from leaving after a fight or leave you somewhere after a fight to “teach you a lesson”?

Do you…

  • Sometimes feel scared of how your partner may behave?
  • Constantly make excuses to other people for your partner’s behaviour?
  • Believe that you can help your partner change if only you changed something about yourself?
  • Try not to do anything that would cause conflict or make your partner angry?
  • Always do what your partner wants you to do instead of what you want?
  • Stay with your partner because you are afraid of what your partner would do if you broke up?

If any of these things are happening in your relationship, talk to someone. Without help, the abuse will continue. Making that first call to seek help is a courageous step.

Always remember…

  • NO ONE deserves to be abused. The abuse is not your fault. You are not alone.
  • DON’T worry about threats to your visa. We have information about visa options for your situation.
  • DON’T worry if you do not speak the local language. We can get you help in many Languages.

For Survivors

  • No one deserves to be abused. The abuse is not your fault. You are not alone.
  • Contact the Critical Incident Stress Management Unit (CISMU) if you are concerned that you may be experiencing any form of abuse or are in fear for the safety of yourself or your children.
  • If English is not your first language, you can request a language you feel more comfortable speaking when contacting CISMU to provide support.
  • You can also see Support Organizations to identify and contact an appropriate resource for your assistance (for both US and International).
  • Read how you can protect your digital privacy.

Reference: https://www.un.org/en/coronavirus/what-is-domestic-abuse

BLOG # 1

Psychological Incapacity

A LETTER

Dear Ms. J,

I am Lynette M. Dinatuto married to Sandro D. Dinatuto. We are married for almost 3 years. Me and my husband had a heated argument when he saw me busy on my cellular phone instead of helping him in entertaining our customers at our sari-sari store. My husband uttered on top of his voice “you have sex with different man”. During which, he further destroyed my cellular phone by throwing it at the cemented wall of our store. After which, I tried to calm him down but he repeatedly punched me on the face and head. This is not the only instance that he uttered such degrading word to me. Even when we are in the mall buying for grocery, he even started a fight to the man who just took a glare at me, After we got home, he keep on telling me that may be the guy is my other man and likewise he inflicted injury upon me. Same incident happened every time we went out to buy grocery. Further, all the guys looking at me got him jealous. Can I file nullity of marriage to my husband for psychological incapacity? Or can I sue him in court for his senseless jealousy?

Lynette.

RESPONSE

Dear Ms. Lynette,

As for the forgoing facts you narrated, it shows that your husband has a mental illness that is incurable. Being habitually jealous without apparent reason has something to do with his personality disorder, and inflicting upon you injury and repeated verbal abuse is showing a signed of mental illness. Thus you can seek for nullity of your marriage for psychological incapacity. Under Article 36 of the Family Code states:

“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”

I suggest that you can also lodge a complaint against your husband for RA 9262 (Violence against Women and Children). Under Section 5(i) of RA 9262: (5) Engaging in any form of harassment or violence; (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman’s child/children.

Section 5(a) of RA 9262 states: (a)Causing physical harm to the woman or her child;

Section 5(h) para 4 of RA 9262: (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child.

This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of harassment or violence; I hope my advice will help you in any way.

Psychological incapacity is one of the grounds of legal separation, whereby Article 36 of the Family Code asserts that “psychological incapacity” is the inability to comply with the essential marital obligations towards a partner. Like any relationship, the inability to respect and follow your responsibility towards a partner is an indication that there is something wrong; and without the action and decision to come up with a solution, it now becomes a ground for the termination of the relationship. In connection with that, some reasons for psychological incapacity include, but are not limited to: the intentional refusal of providing support to your partner be it mentally, emotionally, financially, or any other aspect of relational support in a marriage; refusal to live together; uncontrollable thirst for gambling; alcoholism and jealousy deeming the marriage insufferable. However, it is important to note that psychological incapacity is not a medical concept but a legal one.

Now, what are the essential marital obligations anyway? According to the Family Code of the Philippines, it is to live together under one roof, observe mutual love, respect and fidelity, sexual comfort, and render mutual help and support in every aspect of living to sustain the marriage, and all that constitute the basic presumptions of marriage.

Psychological incapacity, however, does not necessarily mean that the guilty partner is psychologically incapacitated to deal with any other aspect of living. It is only within their marital obligations toward their partner. As I have previously stated, psychological incapacity is a legal aspect and not medical.

It is important to note that a person guilty of psychological incapacity does not stop being a normal member of society, or even stop sustaining a relationship with his family and friends, but only to his duty towards his spouse or ex-spouse thereof. He can still be a good parent to his children and cater to their needs. He can still fulfill their duties towards the members of their family, or even go out with their friends. You see, the world will not necessarily view him as insane or unstable because he still fulfills his responsibility as a functioning member of society.

The “cooling off period,” which occurs six months after the petition is filed, is a distinguishing characteristic of legal separation petitions. No formal separation will be granted until the court has made steps toward the couples’ reconciliation and is completely satisfied that, notwithstanding such attempts, reconciliation is very doubtful. Furthermore, the petition must be submitted within five years of the discovery of the grounds for legal separation; otherwise, the petition will be dismissed. Other grounds for dismissal include condonation or forgiveness of the marital crime, cooperation and shared culpability, or if both spouses have offered legal separation reasons (Article 56 of the Family Code).

If the petition is approved, the spouses will be able to live separately. Their property regime, whether absolute community or conjugal partnership, will be dissolved and liquidated, with the guilty spouse receiving no share of the net earnings. In addition, the guilty spouse will be barred from inheriting from the innocent spouse.

Custody is mentioned in the decision since the legal separation of couples will influence their children. The innocent spouse will be granted custody of the minor children, but the court will consider all relevant factors, including the choice of the kid above the age of seven, unless the selected parent is unsuitable.

It cannot be overstated that legally separated spouses cannot marry again since their marriage to one another still exists. If they married again, they risk being punished for bigamy, regardless of how long ago the petition for legal separation was granted or if it had reached finality. In the end, legal separation is only a separation from bed and board; it does not break or terminate the connections of marriage.

Reference:

https://www.linkedin.com/pulse/annulment-marriage-based-psychological-incapacity-joyce-domingo-dapat

https://lawyerphilippines.org/2017/04/03/legal-separation-in-the-philippines/

Disclaimer: Ms J is solely an advice of the student of Doctor of Juris. Any statement of the editor is purely opinionated and should not relied upon. If you have legal problems, you consult or engage the services of a lawyer. This does not reflect or bind the University of the School of Law.