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If a person gets married while the petition for declaration of nullity of his first marriage is ongoing, can he be charged with bigamy?

2009-11-10T09:46:00.010+08:00

Related issues:

[1] What if the first marriage is declared null and void? Will this make the second marriage valid?

[2] What if the second marriage was declared null and void on the ground of psychological incapacity? Will this be a defense against a charge of bigamy?

What is bigamy?

Article 349 of the Revised Penal Code states that bigamy is committed when “a person contracts a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. The penalty for bigamy is prision mayor (minimum of six years and one day to a maximum of twelve years). Bigamy is a public crime which means that anyone who knows of the bigamous marriage can file the criminal complaint.

People in a void marriage cannot take the law into their own hands and by themselves declare that their marriage is void

Please take note that under Article 40 of the Family Code, people in a void marriage cannot take the law into their own hands and by themselves declare that their marriage is void. Article 40 states that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void”. Simply stated, if the marriage is void, either or both spouses must file a petition asking the court to declare the marriage void.

If the court declares the marriage null and void, can there be a subsequent marriage immediately?

Some people got married immediately after they received the copy of the court’s decision granting the petition for declaration of nullity of their first marriage. This is wrong. At what point in time can a subsequent marriage take place? Please take note of Sections 21 to 23 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Only when these sections have been complied with can a subsequent marriage take place.

Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage.-

(a) The court shall issue the Decree after:

(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Sec. 23. Registration and publication of the decree; decree as best evidence. –

(a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree.

(b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.

(c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.

The Supreme Court ruled in Mercado vs. Tan, Tenebro vs. CA, and in Abunado vs. People, respectively, that:

[1] The subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

[2] A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as “void.”

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

Mercado vs. Tan (G.R. No. 137110, 1 August 2000)

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Tenebro vs. CA, G.R. No. 150758, February 18, 2004

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

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

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

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

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

This argument is not impressed with merit. Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

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

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

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

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

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

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

Abunado vs. People, G.R. No. 159218, March 30, 2004

Petitioner claims that his petition for annulment/declaration of nullity of marriage was a prejudicial question, hence, the proceedings in the bigamy case should have been suspended during the pendency of the annulment case. Petitioner, in fact, eventually obtained a judicial declaration of nullity of his marriage to Narcisa on October 29, 1999.

A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions.

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

The outcome of the civil case for annulment of petitioner’s marriage to Narcisa had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.

Legal lessons from GMA 7 telenovela “Ikaw Sana”

2009-11-03T12:04:00.010+08:00

I love watching local and foreign news programs. Last week while waiting for the 6:30 PM newscasts, I got to watch snippets of episodes of GMA 7 telenovela “Ikaw Sana” starring Jennilyn Mercado, Mark Herras and Pauleen Luna. The scenes involved Jennilyn’s character being sentenced in a criminal case, brought to Davao correctional facility, and acquitted after a new trial (all of these in a week or two of episodes).

What legal lessons can we learn from “Ikaw Sana”?

[1] Eliza, the character played by Jennilyn was charged, if I remember correctly, with murder, a non-bailable offense. However, despite the term “non-bailable”, an accused can still file a petition for bail. If the court finds that the evidence of guilt is weak, then bail is granted. This, incidentally, is what happened in the case involving Dennis Roldan.

[2] After Eliza was convicted, she asked the character played by Pauleen Luna to file an appeal for her. There are several options for an accused convicted by the court. These are:

Appeal to a higher court – if the case originated from the MTC (Municipal or Metropolitan Trial Court), the appeal is to the Regional Trial Court. If the case came from the RTC, then the appeal is to the Court of Appeals. If the conviction involves “reclusion perpetua”, then the case is automatically elevated to the Supreme Court.

Motion for modification of judgment of conviction – for example, by reducing the penalty imposed in view of a mitigating circumstance (Rule 120, Section 7) for purposes of applying for probation

Motion for reconsideration – pointing out errors of law or fact in the judgment thus giving the court the opportunity to re-examine and correct its decision (Rule 121, Sections 1, 3 and 6)

Motion for new trial – based on two grounds: (a) errors of law or irregularities committed during the trial which were prejudicial to the substantial rights of the accused; and (b) new and material evidence which the accused could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment (Rule 121, section 2).

(A “motion to reopen” is available only after either or both parties have presented their evidence; if the judgment has already been promulgated, the proper remedy is a motion for reconsideration or new trial).

In “Ikaw Sana” the lawyer for Eliza asked the court for a new trial, saying that a new witness (played by Harlene Bautista, I think) has become available. As the telenovela goes, the court acquitted Jennilyn’s character. But if Eliza has been in jail for several years (since the characters played by Mark and Pauleen already have a child), then the writers of the show had their legal remedy wrong. A motion for new trial is filed within the period for filing an appeal, that is, fifteen days from the time Eliza was found guilty by the court (“promulgation” is the legal term).

The telenovela also does not provide its viewers with a clear time frame for these events, as to how many months or even weeks passed between them. After the scene where the defense lawyer was asking for a new trial, there was a a commercial break. The next scene showed the judge acquitting Jennilyn’s character. This is very sloppy storytelling; the characters did not also seem to have aged even a little bit.

“Ikaw Sana” with its fast pace can also potentially create a misimpression in the minds of its viewers. In real life, our judicial system crawls from hearing to hearing, from stage to stage. I can just imagine people thinking, “Bakit sa ‘Ikaw Sana’, ang bilis ng trial. Ang annulment ko, two years na, hindi pa tapos! Palaging reset!”

Custody battles over children between grandparents and a mother or father

2009-10-14T11:30:00.027+08:00

I have previously written about custody battles over children between the father and the mother. In this post, I will discuss the following issues:

Family Code provisions on parental authority

Custody battles over children between a parent (either the father or the mother) on one side and grandparents on the other side

If the grandparents have, by force or stealth, taken away the grandchild, how can the mother or father regain custody?

If the mother of an illegitimate child dies, who will exercise parental authority?

The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, like the child's grandparents

The “apos” may be so cute and lovable that some grandparents are fighting tooth and nail over their custody. Sometimes it seems that grandparents are more interested in having custody rather than the parents themselves. Some women have e-mailed me saying that their child’s father do not really want to have anything to do with the child but that it is the grandparents who want to have the time and opportunity (if not outright custody) to be with the child.

Why? Someone said that it is because the grandparents already failed with their own children and they want another chance to make up for their mistakes. This time, hopefully with their grandchildren, they will be able to do things right.

Family Code provisions on parental authority

Articles 209 to 233 of the Family Code are the governing laws on parental authority. Below are some articles relevant to our discussion:

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Family Code provisions on substitute parental authority of grandparents

Articles 214 and 216 of the Family Code speak clearly of situations when grandparents can exercise substitute parental authority over their grandchildren:

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

In custody battles, the law favors the parents over the grandparents

The Supreme Court in the case of Santos vs. CA (G.R. No. 113054 March 16, 1995) laid down the rule that “the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority.”

The facts of the Santos case

Petitioner Leouel Santos, Sr., (“Santos” for brevity) an army lieutenant, and Julia Bedia, a nurse by profession, were married in Iloilo City in 1986. Their union produced only one child, Leouel Santos, Jr. who was born July 18, 1987.

From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody of his maternal grandparents, private respondents Leopoldo and Ofelia Bedia (“Bedias” for brevity).

Santos and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter’s parents, the respondent Bedias. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy because petitioner could not afford to do so.

The boy’s mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Santos alleged that he was not aware of her whereabouts and his efforts to locate her in the United States proved futile. The Bedias claimed that although abroad, their daughter Julia had been sending financial support to them for her son.

On September 2, 1990, Santos along with his two brothers, visited the Bedia household, where three-year old Leouel Jr. was staying. The Bedias claimed that through deceit and false pretensions, Santos abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros Oriental.

The Bedias then filed a “Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.,” before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent.

After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia.

Santos appealed this order to the Court of Appeals (CA). In its decision dated April 30, 1992, the CA affirmed the trial court’s order. The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) was “depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to be unsuitable to be allowed to have custody of minor Leouel Santos Jr.” The CA ruled:

From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal grandparents the petitioners herein. The petitioners have amply demonstrated their love and devotion to their grandson while the natural father, respondent herein, has shown little interest in his welfare as reflected by his conduct in the past. Moreover the fact that petitioners are well-off financially, should be carefully considered in awarding to them the custody of the minor herein, lest the breaking of such ties with his maternal grandparents might deprive the boy of an eventual college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent had never given any previous financial support to his son, while, upon the other hand, the latter receives so much bounty from his maternal grandparents and his mother as well, who is now gainfully employed in the United States. Moreover, the fact that respondent, as a military personnel who has to shuttle from one assignment to another, and, in these troubled times, may have pressing and compelling military duties which may prevent him from attending to his son at times when the latter needs him most, militates strongly against said respondent. Additionally, the child is sickly and asthmatic and needs the loving and tender care of those who can provide for it.

His motion for reconsideration having been denied, Santos appealed to the Supreme Court.

Issues before the Supreme Court

[1] Between Santos, the father, or the Bedias, the grandparents, who should properly be awarded custody of the minor Leouel Santos, Jr.?

The mother of the minor Santos, Jr., is working in the United States while the father, Santos, Sr., is present. Not only are they physically apart but are also emotionally separated. There has been no decree of legal separation and Santos’s attempt to obtain an annulment of the marriage on the ground of psychological incapacity of his wife has failed.

[2] According to Santos, the CA erred in awarding custody of the boy to his grandparents and not to himself. He contends that since the Bedias have failed to show that he was an unfit and unsuitable father, substitute parental authority granted to the boy’s grandparents under Art. 214 of the Family Code was inappropriate.

Santos added that the reasons relied upon by the Bedias in having custody over the boy, were flimsy and insufficient to deprive him of his natural and legal right to have custody.

[3] On the other hand, the Bedias claimed that they could provide an air-conditioned room for the boy and that Santos would not be in a position to take care of his son since he has to be assigned to different places. They also allege that Santos did not give a single centavo for the boy’s support and maintenance. When the boy was about to be released from the hospital, they were the ones who paid the fees because their daughter and Santos had no money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the United States. Furthermore, Santos’s use of trickery and deceit in abducting the child in 1990, after being hospitably treated by them, did not speak well of his fitness and suitability as a parent.

The Bedias argued that although the law recognizes the right of a parent to his child’s custody, ultimately the primary consideration was what was best for the happiness and welfare of the latter. As maternal grandparents who have amply demonstrated their love and affection for the boy since his infancy, they claimed to be in the best position to promote the child’s welfare.

The decision of the Supreme Court: the natural love of a parent outweighs that of the grandparents

[1] The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or “patria potestas” in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs.

It is a mass of rights and obligations which the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental authority, “there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.”

[2] Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution.

When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company.

[3] The child’s welfare is always the paramount consideration in all questions concerning his care and custody.

[4] The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority.

[5] Only in case of the parents’ death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent.

[6] Santos has not been shown to be an unsuitable and unfit parent. The Bedias’ demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred over the grandparents. The latter’s wealth is not a deciding factor, particularly because there is no proof that Santos is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child’s custody.

[7] While Santos’s previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give.

[8] His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are assigned to different parts of the country in the service of the nation, are still the natural guardians of their children. It is not just to deprive our soldiers of authority, care and custody over their children merely because of the normal consequences of their duties and assignments, such as temporary separation from their families.

[9] Santos’s employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a ground to wrest custody from him.

[10] The attachment of the Bedias to the young boy whom they have reared for the past three years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here.

The strong bonds of love and affection possessed by the Bedias as grandparents should not be seen as incompatible with Santos’s right to custody over the child as a father.

Related cases and issues

[1] If the grandparents have, by force or stealth, taken away the grandchild, how can the father or mother regain custody?

The Supreme Court ruled in Tijing vs. Court of Appeals G.R. No. 125901, March 8, 2001 that the parent who wants to regain custody can file a petition for a writ of habeas corpus.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.

Please read “Rule On Custody Of Minors And Writ Of Habeas Corpus In Relation To Custody Of Minors”.

[2] If the mother of an illegitimate child dies, who will exercise parental authority?

An OFW from the Middle East e-mailed me asking about his right to his illegitimate children since the mother has died. He said that he wants custody of his children but the maternal grandparents refuse to let the children be with him.

Article 212 of the Family Code states: “In case of absence or death of either parent, the parent present shall continue exercising parental authority.”

I stand to be corrected but I do not think that Article 212 applies in this situation. Notice that it says “the parent present shall continue exercising parental authority”. But under Article 176 of the Family Code, sole parental authority belongs to the mother. The biological father does not have any parental authority and so, in case of the mother’s death, what parental authority can he “continue” to exercise?

I think Article 214 of the Family Code provides a possible answer. It says:

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

The question is which grandparents – the maternal grandparents or the paternal grandparents? Again based on Article 176, I will say that it is the grandparents on the illegitimate child’s mother side who should exercise parental authority.

In the situation of that OFW I told you about above, he can of course file a petition in court for parental authority to be granted to him. He can file a petition to this effect or file for adoption of his illegitimate children under RA 8552. Either way, if the court grants his petition, he will have parental authority over his children.

[3] The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, like the child's grandparents

I have previously discussed the issue of visitation rights a father over has over his illegitimate child. You can download my free PDF newsletter Issue no. 008 September 30, 2008 on this topic.

The problem is that a lot of times, the father himself does not want to have anything to do with his child. The persons who want to spend time with the child are the grandparents. The father’s visitation right is personal to him. Thus, if the court has granted the terms and conditions of his visitation, once he leaves the country (to work, for example), his visitation right cannot be exercised other parties, like the grandparents.

[4] Vancil vs. Belmes G.R. No. 132223, June 19, 2001

Bonifacia Vancil (“Bonifacia” for brevity), a US citizen, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died in the said country on December 22, 1986. During his lifetime, Reeder had two children named Valerie and Vincent by his common-law wife, Helen G. Belmes (“Helen” for brevity). Bonifacia obtained a favorable court decision appointing her as legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr. She alleged that Helen was morally unfit as guardian of Valerie considering that Helen’s live-in partner raped Valerie several times.

Since Valerie had reached the age of majority at the time the case reached the Supreme Court, the issue revolved around the guardianship of Vincent.

The Supreme Court ruled that Bonifacia, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of Helen. Considering that Helen is very much alive and has exercised continuously parental authority over Vincent, Bonifacia has to prove, in asserting her right to be the minor’s guardian, Helen’s unsuitability. Bonifacia, however, has not proffered convincing evidence showing that Helen is not suited to be the guardian of Vincent. Bonifacia merely insists that Helen is morally unfit as guardian of Valerie considering that her live-in partner raped Valerie several times. But Valerie, being now of major age, is no longer a subject of this guardianship proceeding.

Even assuming that Helen is unfit as guardian of minor Vincent, still Bonifacia cannot qualify as a substitute guardian. She is an American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and obligations required of a guardian. In fact, in her petition, Bonifacia admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to someone else who may not also qualify as a guardian.

[4] Tonog vs. CA G.R. No. 122906, February 7, 2002

This case revolved around Gardin Faith, an illegitimate child. Article 176 of the Family Code states that sole parental authority belongs to the mother. In this case, the Supreme Court ruled that while the guardianship proceedings were ongoing at the trial court level, TEMPORARY custody of the child should be retained by the father. The child should not be wrenched from her familiar surroundings, and thrust into a strange environment away from the people and places to which she had apparently formed an attachment. Moreover, whether a mother is a fit parent for her child is a question of fact to be properly entertained in the special proceedings before the trial court.

RA 9262 and other cases involving women: where to ask for help

2009-10-12T08:35:00.000+08:00

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

Typhoons Ondoy and Pepeng: Free PDF download “Where is God When Things Go Wrong?”

2009-10-03T17:18:00.014+08:00

You can help the victims of last week’s Typhoon Ondoy and Typhoon Pepeng (still devastating northern Philippines) through the Philippine National Red Cross. (The 2:54 mark of this YouTube video shows the damage done to UERM, a medical school in Sta. Mesa, Manila, and the dramatic rescue of a female doctor being swept away by the flood.)

As most of you know, personally experienced or can see in the video above, Typhoons Ondoy and Pepeng and the widespread floods last weekend brought widespread destruction in the Philippines. I was trapped in the second floor of our house for two days (Saturday and Sunday), with the water inside our house reaching up to over seven feet high.

One good thing, I was able to save our one year old Rottweiler from drowning. Our cat Angelica even survived; how she managed I don’t know how. I wrote about this cat in Relationships, social isolation. heart disease, premature death and a cat named Angelica my Salt and Light blog.

I have been busy the last few days cleaning up the house, and I feel about to go down sick.

The e-mails asking for legal information from visitors to www.familymatters.org.ph and the comments posted in this blog have piled up. I will be able to answer them in about a week’s time.

Free PDF download “Where is God When Things Go Wrong?”

“Where is God When Things Go Wrong?” by evangelist and apologist John Blanchard is a free PDF booklet to download from David Legge's www.preachtheword.com and by kind permission of www.evangelicalpress.org (Note: This download is for personal use only and should not be printed or copied. The book can be ordered singly or in bulk from Evangelical Press.)

Excerpts:

Why should issues of good and evil, or human suffering, cause any problems? If the British philosopher Bertrand Russell was right to dismiss man as ‘a curious accident in a backwater’, why should it matter in the least whether lives are ended slowly or suddenly, peacefully or painfully, one by one or en masse? If the Oxford professor Peter Atkins, another dogmatic atheist, is right to call mankind ‘just a bit of slime on a planet’, why should we be remotely concerned at the systematic slaughter of six million Jews or half a million Rwandans? Are we traumatized when we see slime trodden on or shoveled down a drain? The whole world wept over the destruction and death brought about by the tsunami in the Indian Ocean, but why not have the same anguish over the fate of beetles or bacteria, rats or reptiles? If human beings are simply the result of countless chemical and biological accidents, how can they have any personal value, and why should we turn a hair if dictatorial regimes or natural disasters dispose of them by the million? The same applies to violence or bloodshed on a personal or limited basis. If we are nothing more than biological flukes, with no meaningful origin or destiny, why should the way we treat each other matter more than the way other creatures behave?

How can we jump from atoms to ethics and from molecules to morality? If we are merely genetically programmed machines, how can we condemn anything as being ‘evil’, or commend anything as being ‘good’? Why should we be concerned over issues of justice or fairness, or feel any obligation to treat other ‘machines’ with dignity or respect? When people respond to tragedy by asking, ‘How can there be a just God?’ their question is logically flawed, as without him words like ‘just’ and ‘unjust’ are purely matters of personal opinion.

74,000+ visitors and counting: Thanks to everyone who have browsed this blog

2009-09-24T05:16:00.003+08:00

I started this blog October 30, 2005 and yesterday, my website tracker (Sitemeter.com) reported that some 74,000+ visitors from 76 countries have now browsed this site. With an average of 170+ visitors a day, this blog will have over 36,000 visitors this year.

(The numbers are gratifying for any blogger but they do not really represent the number of people who have actually or beneficially used this blog. We have to consider factors such as bounce rates, time spent on site, number of pages viewed, etc.)

The service I provide in this blog and in my Family Matters website is free 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 my website and blogs however, what is Biblical will always take precedence.

Despite this milestone for this blog, two things sadden me:

One, the most visited pages of this blog are those dealing with annulment or declaration of nullity of marriage; the article I wrote about entertainer Amy Perez’s petition to have her marriage to Brix Ferraris declared null and void; custody battles over children; and the article dealing with adultery, concubinage, and psychological violence.

Two, there are more people who visit this blog rather than my Salt and Light blog on how to build strong relationships, marriages and families. Compared to this blog, my SL blog is limping along with only 18,000+ visitors since December 2005. It seems that there are more people who want to know about how to end their marriage than people concerned about building stronger marriages.

I remember Valentine’s Day three years ago. I received an e-mail from a woman, competent and highly successful in her profession. The problem was, her professional success had led to the breakdown of her marriage because her husband had become totally insecure. The question she desperately asked me was, “Is there hope for my marriage?” I spent the whole afternoon of that Valentine’s Day answering the e-mail, assuring her that yes, there was still hope for her marriage.

My hope is that more people will browse my Salt and Light blog and learn how to reclaim their marriage and rebuild their family. Some of my favorite articles are Lessons in love and life from Miriam Quiambao, Emotional word pictures as a communication tool for increasing intimacy between husbands and wives, and Men are terrible mind readers ...

I also hope that that those of you going through various marital difficulties will try to get hold and watch Kirk Cameron's movie on relationships; you can watch the YouTube trailer above. (Read more About FIREPROOF; surf to the FIREPROOF blog).

About FIREPROOF, the movie

At work, inside burning buildings, Capt. Caleb Holt lives by the old firefighter's adage: Never leave your partner behind. At home, in the cooling embers of his marriage, he lives by his own rules.

Growing up, Catherine Holt always dreamed of marrying a loving, brave firefighter...just like her daddy. Now, after seven years of marriage, Catherine wonders when she stopped being "good enough" for her husband.

Regular arguments over jobs, finances, housework, and outside interests have readied them both to move on to something with more sparks.

As the couple prepares to enter divorce proceedings, Caleb's father challenges his son to commit to a 40-day experiment: "The Love Dare." Wondering if it's even worth the effort, Caleb agrees-for his father's sake more than for his marriage. When Caleb discovers the book's daily challenges are tied into his parents' newfound faith, his already limited interest is further dampened.

While trying to stay true to his promise, Caleb becomes frustrated time and again. He finally asks his father, "How am I supposed to show love to somebody who constantly rejects me?"

When his father explains that this is the love Christ shows to us, Caleb makes a life-changing commitment to love God. And so with God's help he begins to understand what it means to truly love his wife.

But is it too late to fireproof his marriage? His job is to rescue others. Now Caleb Holt is ready to face his toughest job ever...rescuing his wife's heart.

HB 6699: Child spanking soon outlawed in RP? Is spanking a Biblically-endorsed way of discipline?

2009-09-07T13:35:00.013+08:00

(Note: Jump to the sections “Is spanking a Biblically-endorsed way of discipline?” and “Practical considerations: spanking in church-based schools”)

Article 45 of Presidential Decree No. 603 “The Child and Youth Welfare Code” states that parents have the right to discipline the child as may be necessary for the formation of his good character, and may therefore require from him obedience to just and reasonable rules, suggestions and admonitions.” This right to discipline includes corporal punishment which is moderate in degree.

However, House Bill 6699 “The Anti-Corporal Punishment Act of 2009”, principally authored by Tarlac Rep. Monica Prieto-Teodoro (wife of Defense Secretary Gilberto Teodoro) intends to prohibit the use of physical force to reprimand children, and deems as illegal verbal assaults and placing children in degrading or humiliating situation to correct their behavior.

HB 6699 also covers corporal punishments in schools, institutions, youth detention centers, and the workplace. Penalties range from one month to six months imprisonment, or suspension of parental authority over the children. The bill is co-authored by 56 other representatives and is expected to be approved by Congress before the year ends.

HB 6699 identifies forms of corporal punishments as:

Use of physical force (hitting any part of the body, pinching, twisting joints, pulling of ears or hair, shaving of hair, dragging or throwing a child, or cutting or piercing the skin)
Forcing a child to perform physically painful or damaging act (holding weights with arms stretched, kneeling on stones, salt, or pebbles or squatting)
Deliberate neglect of a child’s physical needs (starving a child if he doesn’t want to eat vegetables)
Use of external substance to punish a child (putting hot pepper in the mouth when he curses, placing him in a container of water, or exposing him to smoke)
Use of hazardous tasks and punishments (sweeping in the rain or under the heat of the sun)
Confinement (being shut in a confined space, tied-up, or forced to remain in one place for an extended period of time)
Verbal assaults, threats, or intimidation

Rationale for the law

Rep. Prieto-Teodoro explained that although laws trying to protect children from violence are already in place, some of their provisions are unclear: “The present laws lack the explicit prohibition on the use of corporal punishment, especially in the home and family setting, except for children in conflict with the law and children in detention who are now adequately given protection and more humane treatment under the Juvenile Justice and Welfare Act”.

Statistics on child abuse

[1] Many of the children who experience verbal abuse show anxiety, lack of concentration, thoughts of rejection, and low self-esteem among others, according to a 2006 study, “Parental Verbal Abuse: Culture-Specific Coping Behavior of College Students in the Philippines.”

[2] A 2005 study by Save the Children showed that 85 percent of the children interviewed in cities of Caloocan and Cebu were being punished in the home, with spanking as the most common. Eighty-two percent said they were hit on different parts of the body.

[3] A recent data of Plan Philippines showed that 500 to 800 child abuses each year are committed by teachers.

[4] For more facts and statistics on child abuse, please surf to “Child Protection in the Philippines, Philippine Resource Network”. Though unofficial, this is the first website that features organizations in the Philippines, both state-run and non-governmental, that work on the issue of child protection. This is a project supported by the Arci Cultura E Sviluppo, Save the Children (UK) Philippines, and UNICEF Manila with the participation of 8 more organizations. This undertaking aims to present to the world the situation of abused children and the roles of these organizations in addressing the issues through the World Wide Web.

Proposed penalties under HB 6699

With the proposed Anti-Corporal Punishment Act, children or concerned individuals may directly file complaints with their barangays, police stations, or local offices of the Department of Social Welfare and Development.

Authorities are expected to file a case in the regional trial court, or if not conduct an investigation within 8 hours from the time they receive the complaint.

Violators may face a month of imprisonment or suspension of their parental authority over the children, depending on the penalties provided by existing laws to protect children. If the penalty is just a month of imprisonment, the court prosecutor may just order the offender to attend seminars on children’s rights, positive and non-violent discipline, and anger management. Six months of imprisonment await those who will be found guilty of offenses under HB 6699 that are not covered by laws like the Special Protection of Children Against Child Abuse, Exploitation, and Discrimination Act (Republic Act 7610) and Anti-Violence Against Women and Children Act (RA 9262).

Positive discipline: a proposed alternative to spanking

Child rights advocates say that, instead of spanking, parents and other individuals responsible with a child should practice positive discipline. Wilma Banaga of Plan Philippines said “positive discipline” involves:

Identifying the values and life skills that they want the child to adopt.
Expressing affection and support (a hug, a pat on the back, or appreciating their accomplishments), but at the same time giving clear guidelines for their behavior.
Understanding how children think and feel.
Discussing the problem with the child and identify effective approaches to solve it.
Listening carefully and helping children learn the use of words to express their feelings.
Giving children quality time.
Becoming a good example on how to react when faced by undesirable situations.

The Child Rights Information Network provides a 2.1 MB, 356 pages long PDF download from Dr. Joan E. Durant on what positive discipline is all about. CRN also provides “A to Z of child rights” available in English, Arabic, Spanish, French and Russian.

United Nations Convention on the Rights of the Child

The UN Convention on the Rights of the Child, often referred to as CRC or UNCRC, is an international convention setting out the civil, political, economic, social and cultural rights of children. Nations that ratify this international convention are bound to it by international law. Compliance is monitored by the United Nations Committee on the Rights of the Child which is composed of members from countries around the world. Once a year, the Committee submits a report to the Third Committee of the United Nations General Assembly, which also hears a statement from the CRC Chair, and the Assembly adopts a Resolution on the Rights of the Child. (from Wikipedia)

The United Nations Committee on the Rights of the Child defined corporal (from the root word corpus, referring to body) as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. However, other forms of punishment may also be considered corporal punishment even if they re not physical in nature. They are word and actions that belittle, humiliate, denigrate, threaten, scare or ridicule the child.

The UNICEF website provides photo essay on the “Rights of the Child” (Part I and Part 2). It also provides a helpful article “Definition of key terms” and a PDF download of children’s rights.

Is spanking a Biblically-endorsed way of discipline?

The following points must be clearly established and emphasized:

[1] I am strongly opposed to violence or abuse against children. Fundamentalist and evangelical Christian parents who do believe in spanking would also affirm that they are opposed to violence or abuse against children.

[2] “Spanking” understood and implemented correctly is a form of loving discipline that the Bible endorses.

Dr. James Dobson of “Focus on the Family” has ably and eloquently articulated the bases for spanking as a form of loving discipline in his books “The New Dare to Discipline” (read a sample chapter) and “The New Strong-Willed Child” (read a sample chapter).

Dobson’s three concepts on Biblical discipline are:

(1) The authority of parents is endorsed;

(2) Discipline is in the best interest of children;

(3) Discipline must not be harsh and destructive to the child’s spirit.

In his printable article titled “Approaches to Discipline”, Dobson discusses issues such as Does Spanking Work for All Kids?; To Spank or Not to Spank; When Kids Run You Over; Handling Disrespect; and Behavior and Consequences.

Related issues which Dobson discusses in his website are:

Practical considerations; spanking in church-based schools

[1] What should our stand be towards HB 6699? While we believe in spanking as a Biblical form of discipline, fundamentalist and evangelical Christians must also take a strong stand opposing violence and abuse against children.

Instead of a complete repeal, Article 45 of Presidential Decree No. 603 “The Child and Youth Welfare Code” allowing corporal punishments as long as these are “just and reasonable” and “moderate in degree” must be clarified or fine tuned instead.

[2] Churches, numbering perhaps in the hundreds, have established schools based on the School of Tomorrow program. As I have been told by several school administrators, part of the SOT’s requirements is that parents must sign a document allowing teachers to spank misbehaving children. On the contrary, someone who claimed to be an SOT consultant told me that such is not a requirement of the SOT and that it is up to the schools to ask parents to allow the spanking of their children by the teachers.

(As you can read, my information on this matter is second hand. I would appreciate any correction from the SOT, school administrators and the parents.)

In the legal seminars I have given for churches and groups of pastors, people have always raised the issue of this alleged SOT requirement. I have always replied by pointing out Article 233 of the Family Code (take note especially of the second paragraph) which states:

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

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

(emphasis by boldfacing supplied)

The phrase “in no case” means that even with the SOT document signed by the parents, teachers are not allowed to spank the students. I have always said that if the students needed to be spanked, the school administrators should call the parents who will do the spanking themselves.

[3] Have the provisions of the Family Code on parental authority, specifically Articles 209 to 233, already repealed Article 45 of Presidential Decree No. 603 “The Child and Youth Welfare Code”? These articles do not mention anything about the right of parents to discipline their children as PD 603 provides. Large portions of PD 603 have been repealed or modified by the Family Code of the Philippines and numerous other laws. In our legal system, however, implied repeals are frowned upon and therefore, it can be argued that Article 45 of Presidential Decree No. 603 is still good law.

If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?

2009-08-27T11:09:00.011+08:00

Most of you will probably say that of course, the child will be illegitimate. But I wish to discuss here several issues which give us a different answer:

[1] Conception as a result of artificial insemination

[2] Presumption of legitimacy of a child born during the marriage of the parents

[3] Ways legitimacy can be impugned or questioned

[4] DNA testing to prove legitimacy or illegitimacy

Conception as a result of artificial insemination

The 2nd paragraph of Article 164 of the Family Code states:

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

Artificial insemination can either be AIH (artificial insemination by husband) or AID (artificial insemination by donor). Both husband and wife must have given their consent in a written document recorded with the Local Civil Registrar’s office. Firstly, I find it difficult to conceive, pardon the pun, of a woman being subjected to artificial insemination against her consent or willing participation. Secondly, if it is AIH, why would a written and recorded document still be necessary?

Why would couples resort to artificial insemination? Please take time to read the following articles by Sandra Glahn:

Presumption of legitimacy of a child born during the marriage of the parents

The first paragraph of Article 164 of the Family Code states that “children conceived or born during the marriage of the parents are legitimate”. This presumption can be disputed; Article 166 provides the grounds for questioning the legitimacy of a child. This presumption on legitimacy can however become conclusive as the Supreme Court explained in the case of Dizon vs. De Jesus G.R. No. 142877, October 2, 2001:

There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse.

The child is considered legitimate even though the mother has been convicted of adultery

The law favors the legitimacy of the child as Article 164 provides. Moreover, Article 167 provides that “the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”

The law favors the legitimacy of a child

Please read carefully the 2005 Supreme Court decision in the case of “Gerardo Concepcion vs. Court of Appeals and Ma. Theresa Almonte.” In this case, Gerardo filed a case for declaration of nullity of his marriage to Theresa on the ground that their marriage was bigamous. Theresa was already married to a certain Mario when they got married (and Mario was still alive and living in Quezon City.) As a result, the trial court declared their son Jose Gerardo to be an illegitimate child. When the trial court denied Theresa’s motion to have Jose Gerardo’s surname changed to her maiden surname, she brought the case up to the Court of Appeals.

The CA ruled, to the shock of both Gerardo and Theresa, that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage. The CA ruling, later on affirmed by the Supreme Court, declared that every presumption must be in favor of legitimacy. The Supreme Court ruled that

During the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers apart.

Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act.

Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.

The Supreme Court ruled that it was only Mario (the first husband) or in the proper case, his heirs, who could question the legitimacy.

Ways legitimacy can be impugned or questioned

Article 166 of the Family Code provides the ways by which legitimacy can be impugned or questioned:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

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

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

(c) serious illness of the husband, which absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

Periods within which to question legitimacy

Article 170 provides for certain periods within which the husband can question the legitimacy of the child:

The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

Briefly, the period is one year from the birth of the child if the husband or his heirs live in the same town or city where the child was born. The period is two years if the husband or his heirs if they reside elsewhere in the Philippines. The period is three years if the husband or his heirs are living abroad.

Article 171 provides for the grounds whereby the husband’s heirs can question the legitimacy of the child:

The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.

Through the distance ...

2009-08-10T19:45:00.000+08:00

“And Mizpah; for he said, The LORD watch between me and thee, when we are absent one from another.” (Gen 31:49)

“Is the Lord going to use in a great way? Quite probably. Is He going to prepare you as you expect? Probably not. And if you’re not careful, you will look at the trials, the tests, the sudden interruptions, the disappointments, the sadness, the lost jobs, the failed opportunities, the broken moments, and you will think, He’s through with me, He’s finished with me, when in fact, He is equipping you.” (The Mystery of God’s Will, by Chuck Swindoll)

Republic Act No. 9485 Anti-Red Tape Act of 2007

2009-07-14T08:01:00.002+08:00

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

RA 9485 became effective June 02, 2007 and its Implementing Rules and Regulations were released last year. The law will become fully effective this September 2009. Among the highlights of this law are (1) limitation of signatories required for any document to only five; (2) limit of five days for simple transactions and ten days for complex transactions; (3) automatic renewal of licenses and permits if not acted upon within the prescribed period; and (4) prohibition against irrelevant requirements. Posted below is a primer on this law.

What is the policy of the State with regards accountability, proper management of public affairs and public property?

SEC. 2. Declaration of Policy. - It is hereby declared the policy of the State to promote integrity, accountability, proper management of public affairs and public property as well as to establish effective practices aimed at the prevention of graft and corruption in government. Towards this end, the State shall maintain honesty and responsibility among its public officials and employees, and shall take appropriate measures to promote transparency in each agency with regard to the manner of transacting with the public, which shall encompass a program for the adoption of simplified procedures that will reduce red tape and expedite transactions in government.

What government offices and agencies does RA 9485 cover?

SEC. 3. Coverage. - This Act shall apply to all government offices and agencies including local government units and government-owned or -controlled corporations that provide frontline services as defined in this Act. Those performing judicial, quasi-judicial and legislative functions are excluded from the coverage of this Act.

What are considered simple transactions?

"Simple Transactions" refer to requests or applications submitted by clients of a government office or agency which only require ministerial actions on the part of the public officer or employee, or that which present only inconsequential issues for the resolution by an officer or employee of said government office.

What are considered complex transactions?

"Complex Transactions" refer to requests or applications submitted by clients of a government office which necessitate the use of discretion in the resolution of complicated issues by an officer or employee of said government office, such transaction to be determined by the office concerned.

What are frontline services?

"Frontline Service" refers to the process or transaction between clients and government offices or agencies involving applications for any privilege, right, permit, reward, license, concession, or for any modification, renewal or extension of the enumerated applications and/or requests which are acted upon in the ordinary course of business of the agency or office concerned.

What does action mean?

"Action" refers to the written approval or disapproval made by a government office or agency on the application or request submitted by a client for processing.

Who are officers or employees?

"Officer or Employee" refers to a person employed in a government office or agency required to perform specific duties and responsibilities related to the application or request submitted by a client for processing.

What are irrelevant requirements?

"Irrevelant requirement" refer to any document or performance of an act not directly material to the resolution of the issues raised in the request or needed in the application submitted by the client.

Who are considered as fixers?

"Fixer" refers to any individual whether or not officially involved in the operation of a government office or agency who has access to people working therein, and whether or not in collusion with them, facilitates speedy completion of transactions for pecuniary gain or any other advantage or consideration.

What is reengineering of systems and procedures under RA 9485?

SEC. 5 Reengineering of Systems and Procedures. - All offices and agencies which provide frontline services are hereby mandated to regularly undertake time and motion studies, undergo evaluation and improvement of their transaction systems and procedures and re-engineer the same if deemed necessary to reduce bureaucratic red tape and processing time.

What is the Citizen's Charter?

SEC. 6. Citizen's Charter. - All government agencies including departments, bureaus, offices, instrumentalities, or government-owned and/or controlled corporations, or local government or district units shall set up their respective service standards to be known as the Citizen's Charter in the form of information billboards which should be posted at the main entrance of offices or at the most conspicuous place, and in the form of published materials written either in English, Filipino, or in the local dialect, that detail:

(a) The procedure to obtain a particular service;
(b) The person/s responsible for each step;
(c) The maximum time to conclude the process;
(d) The document/s to be presented by the customer, if necessary;
(e) The amount of fees, if necessary; and
(f) The procedure for filing complaints.

Who is responsible for the implementation of RA 9485?

SEC. 7. Accountability of the Heads of Offices and Agencies. - The head of the office or agency shall be primarily responsible for the implementation of this Act and shall be held accountable to the public in rendering fast, efficient, convenient and reliable service. All transactions and processes are deemed to have been made with the permission or clearance from the highest authority having jurisdiction over the government office or agency concerned.

What are the procedures for the accessing frontline services?

SEC. 8. Accessing Frontline Services. - The following shall be adopted by all government offices and agencies:

(a) Acceptance of Applications and Request -

(1) All officers or employees shall accept written applications, requests, and/or documents being submitted by clients of the office or agencies.

(2) The responsible officer or employee shall acknowledge receipt of such application and/or request by writing or printing clearly thereon his/her name, the unit where he/she is connected with, and the time and date of receipt.

(3) The receiving officer or employee shall perform a preliminary assessment of the request so as to promote a more expeditious action on requests.

(b) Action of Offices -

(1) All applications and/or requests submitted shall be acted upon by the assigned officer or employee during the period stated in the Citizen's Charter which shall not be longer than five working days in the case of simple transactions and ten (10) working days in the case of complex transactions from the date the request or application was received. Depending on the nature of the frontline services requested or the mandate of the office or agency under unusual circumstances, the maximum time prescribed above may be extended. For the extension due to nature of frontline services or the mandate of the office or agency concerned the period for the delivery of frontline services shall be indicated in the Citizen's Charter. The office or agency concerned shall notify the requesting party in writing of the reason for the extension and the final date of release for the extension and the final date of release of the frontline service/s requested.

(2) No application or request shall be returned to the client without appropriate action. In case an application or request is disapproved, the officer or employee who rendered the decision shall send a formal notice to the client within five working days from the receipt of the request and/or application, stating therein the reason for the disapproval including a list of specific requirement/s which the client failed to submit.

(c) Denial of Request for Access to Government Service - Any denial of request for access to government service shall be fully explained in writing, stating the name of the person making the denial and the grounds upon which such denial is based. Any denial of request is deemed to have been made with the permission or clearance from the highest authority having jurisdiction over the government office or agency concerned.

(d) Limitation of Signatories - The number of signatories in any document shall be limited to a maximum of five signatures which shall represent officers directly supervising the office or agency concerned.

(e) Adoption of Working Schedules to Serve Clients - Heads of offices and agencies which render frontline services shall adopt appropriate working schedules to ensure that all clients who are within their premises prior to the end of official working hours are attended to and served even during lunch break and after regular working hours.

(f) Identification Card - All employees transacting with the public shall be provided with an official identification card which should be visibly worn during office hours.

(g) Establishment of Public Assistance/Complaints Desk - Each office or agency shall establish a public assistance/complaints desk in all their offices.

What is automatic extension of permits and licenses?

SEC. 9. Automatic Extension of Permits and Licenses. - If a government office or agency fails to act on an application and/or request for renewal of a license, permit or authority subject for renewal within the prescribed period, said permit, license or authority shall automatically be extended until a decision or resolution is rendered on the application for renewal: Provided, That the automatic extension shall not apply when the permit, license, or authority covers activities which pose danger to public health, public safety, public morals or to public policy including, but not limited to, natural resource extraction activities.

What is the Report Card Survey?

SEC. 10. Report Card Survey. - All offices and agencies providing frontline services shall be subjected to a Report Card Survey to be initiated by the Civil Service Commission, in coordination with the Development Academy of the Philippines, which shall be used to obtain feedback on how provisions in the Citizen's Charter are being followed and how the agency is performing.

The Report Card Survey shall also be used to obtain information and/or estimates of hidden costs incurred by clients to access frontline services which may include, but is not limited to, bribes and payment to fixers.

A feedback mechanism shall be established in all agencies covered by this Act and the results thereof shall be incorporated in their annual report.

What are considered as violations of RA 9485 and their penalties?

SEC. 11. Violations. - After compliance with the substantive and procedural due process, the following shall constitute violations of this Act together with their corresponding penalties:

(a) Light Offense -

(1) Refusal to accept application and/or request within the prescribed period or any document being submitted by a client;

(2) Failure to act on an application and/or request or failure to refer back to the client a request which cannot be acted upon due to lack of requirement/s within the prescribed period;

(3) Failure to attend to clients who are within the premises of the office or agency concerned prior to the end of official working hours and during lunch

(4) Failure to render frontline services within the prescribed period on any application and/or request without due cause;

(5) Failure to give the client a written notice on the disapproval of an application or request; and

(6) Imposition of additional irrelevant requirements other than those listed in the first notice.

Penalties for light offense shall be as follows:

First Offense - Thirty (30) days suspension without pay and mandatory attendance in Values Orientation Program;

Second Offense - Three (3) months suspension without pay; and

Third Offense - Dismissal and perpetual disqualification from public service.

(b) Grave Offense - Fixing and/or collusion with fixers in consideration of economic and/or other gain or advantage.

Penalty - Dismissal and perpetual disqualification from public service.

What is the criminal liability for fixers?

SEC. 12. Criminal Liability for Fixers. - In addition to Sec. 11 (b), fixers, as defined in this Act, shall suffer the penalty of imprisonment not exceeding six years or a fine not less than Twenty Thousand Pesos (P20,000.00) but not more than Two Hundred Thousand Pesos (P200,000.00) or both fine and imprisonment at the discretion of the court.

Can a government employee found guilty of an administrative offense under RA 9485 also be charged in a civil or criminal case?

SEC. 13. Civil and Criminal Liability, Not Barred. - The finding of administrative liability under this Act shall not be a bar to the filing of criminal, civil or other related charges under existing laws arising from the same act or omission as herein enumerated.

Which government agency has jurisdiction under RA 9485?

SEC. 14. Administrative Jurisdiction. - The administrative jurisdiction on any violation of the provisions of this Act shall be vested in either the Civil Service Commission (CSC), the Presidential Anti-Graft Commission (PAGC) or the Office of the Ombudsman as determined by appropriate laws and issuances.

Can a government employee or official charged in a violation of RA 9485 become a State witness?

SEC. 15. Immunity; Discharge of Co-Respondent/Accused to be a Witness. - Any public official or employee or any person having been charged with another under this Act and who voluntarily gives information pertaining to an investigation or who willingly testifies therefore, shall be exempt from prosecution in the case/s where his/her information and testimony are given. The discharge may be granted and directed by the investigating body or court upon the application or petition of any of the respondent/accused-informant and before the termination of the investigation: Provided, That:

(a) There is absolute necessity for the testimony of the respondent/accused-informant whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said respondent/accused-informant;

(c) The testimony of said respondent/accused-informant can be substantially corroborated in its material points;

(d) The respondent/accused-informant has not been previously convicted of a crime involving moral turpitude; and

(e) Said respondent/accused-informant does not appear to be the most guilty.

Evidence adduced in support of the discharge shall automatically form part of the records of the investigation. Should the investigating body or court deny the motion or request for discharge as a witness, his/her sworn statement shall be inadmissible as evidence.

Happy Fathers’ Day!

2009-06-21T00:10:00.001+08:00

“Why do men think the things they think, say the things they say, and do the things they do?”

This is a picture of my niece Chloe (Grade 3) and my nephew Gino (Grade 1) during a swimming and birthday party for one of their schoolmates. They’re both cute just like their uncle. Hey, what can I say? Cuteness is in our genes!

Last year, during the hot summer months, my cute niece Chloe and cute nephews Danfil, Darwin, and Gino would oftentimes bring out the inflatable pool, place it in our dinky driveway, air it up, and fill it up with water. My nephews would just put on their shorts and their goggles and jump right into the water. My cute niece Chloe however would always come up me and ask for help in putting on her goggles. As I helped her put on her goggles, she would always tell me in a stern voice, “Huwag mong guluhin ang buhok ko!” Women! I mean, women kids!

In previous articles entitled “Can you read my mind?” and “Do wives really want husbands to share their feelings and thoughts with them?” I discussed some differences between men and women, and how women, following Dr. Laura Schlessinger’s advice, should engage in direct communication with their husbands. I was a bit worked up writing that article, asking twice rhetorically, as to what women really wanted from men.

Tough and Tender

Well, I’ve got an “oldie but a goodie” of a book written by Joyce Landorf way back in 1975 which states what women do want from their husbands. Entitled “Tough and Tender,” Landorf says that wives want their husbands to be:

[1] The Decision Maker

[2] The Spiritual leader

[3] The Exceptional Listener

[4] The Wise Gentleman

[5] The Gentle Lover

Well, well, well, these don’t sound too difficult to be or to do, right, guys? But speaking as a lawyer who has counseled women over the years, I guess we have to admit that husbands really have a lot of work to do before reaching the standard that Landorf discusses in her book.

I’ve got to tell you that I am not married, and that the information and discussions in this blog about marriage and the family come firstly, from my readings and secondly, from my years of counseling women who either want to have their marriage annulled or who want to escape from abusive relationships. It’s not that I don’t want to get married because I do, as I told you in my previous “Covenant Marriage” article. It’s just that after having been turned down three times by the same woman, I’m beginning to get a little bit discouraged ...ü

In her last chapter (“A Most Unlikely Man”), Landorf enumerates several processes necessary for a man to grow into the man God intends him to be. These are:

[1] You may need a realignment of attitudes.

[2] You may need to change; Learn to live with your past mistakes; Let each partner move at his own pace and at his own rate of speed toward change; Consider how you, not your wife or your children, could change to make your life and marriage more meaningful.

[3] You may need to make a commitment to effort.

Well, we’ve heard from women what they want from us men. Perhaps it’s time now for women to listen how men think of themselves, how men really are, or simply, what makes men tick, so to speak.

Wild at Heart

John Eldredge, in one of his books (either “Journey of Desire” or “Wild at Heart”) says that people are not gender-less souls inhabiting male and female bodies. He says that we are created either as man or woman but either way, created in the image of God. What he says sounds truly Biblical, but I’m willing to be corrected by those of you who have better theological background than I have.

Eldredge in his book “Wild at Heart, Discovering the Secret of a Man’s Soul” (copyright 2001; published by Thomas Nelson Inc.) enumerates three universal desires which are the clues to masculinity itself. These are:

[1] A battle to fight

[2] An adventure to live

[3] A beauty to rescue

Eldredge is a superb writer, in the class of Philip Yancey. Four lines from his book which are worth the price of the book (quite expensive at almost four hundred pesos) are the following:

[1] Page 62: “Masculinity is bestowed.”

[2] Page 63: “Femininity can never bestow masculinity.”

[3] Page 184: “If masculinity has come under assault, femininity has been brutalized.”

[4] Page 211: “… The most terrifying question any man ever asks his woman: ‘What’s wrong?” After that it’s all mystery. A woman doesn’t want to be related to with formulas, and she certainly doesn’t want to be treated like a project that has answers to it. She doesn’t wan to be solved; she wants to be known.”

What eloquent words can I use to say that Eldredge is a great writer? Hmm, maybe “WOW!” would best sum it all up.

Please take note however that there might be some questions or reservations about Eldredge’s theology and ideas. In pages 30 and 31, for example, he espouses what is known in theology as “open theism,” that is, God takes real risks, not knowing the outcome of everything in the world. Calvinist theologian and Baptist pastor John Piper, I think, has effectively countered “open theism” in his book “The Pleasures of God.” Probe Ministries, in its review of Eldredge’s ideas, says that his language is inaccurate and that he sometimes confuses recklessness with manliness.

The Man in the Mirror

A lot of men measure their masculinity and worth through success, financially, academically or professionally. As the saying goes, “He who has the most toys, wins.” Or more eloquent still, “Big toys for the big boys!”

Using this criteria of success, Patrick Morley has definitely earned the right to speak about masculinity. He graduated with honors from the University of Central Florida and completed studies at Harvard Business School and reformed Theological Seminary. He founded Morley properties which in the 1970’s became one of Florida’s one hundred largest privately held companies. When his book “The Man in the Mirror” became a worldwide bestseller in 1989, he sold his business and founded his ministry to men, encouraging and inspiring new lives through Jesus Christ. His website is www.maninthemirror.org.

(The last time I looked, the only book of Morley which is locally available, beside “Man in the Mirror” is “Walking With Christ in the Details of Life.”)

Morley in his book discusses issues and problems that men struggle with. He answers the questions “Why do men think the things they think, say the things they say, and do the things they do?” Whether you’re a man or a woman, you will learn a lot from Morley’s discussion of the following issues:

[1] The Rat Race
[2] Leading an Unexamined Life
[3] Biblical Christian or Cultural Christian?
[4] Significance: The Search for Meaning and Purpose
[5] Purpose: Why Do I Exist?
[6] The Secret of Job Contentment
[7] Broken relationships
[8] Children: How to Avoid Regrets
[9] Wives: How to be Happily Married
[10] Friends: Risks and Rewards
[11] Money: A Biblical Point of View
[12] The Four Pillars of Financial Strength
[13] Decisions: How to Make the Right Choice
[14] Priorities: How to Decide What’s Important
[15] Time Management: Doing God’s Will
[16] Pride
[17] Fear
[18] Anger
[19] The Desire to be Independent
[20] Avoiding Suffering
[21] Integrity: What’s the Price?
[22] Leading a Secret Thought Life
[23] Accountability: The Missing Link
[24] How Can a Man Change?

Four Pillars of a Man’s Heart

The gender issues facing us today are primarily spiritual and theological at their core. Everything we do as humans is influenced strongly by our gender realities. Gender is a very basic element in dealing with our identity. In his or her soul, every human being asks a few basic questions: Who am I? Am I loved? Am I good or bad? Am I a boy or a girl – a man or a woman?

These lines are from Stu Webber’s book, “Four Pillars of a Man’s Heart” (copyright 1997; Multnomah Books; published in the Philippines by OMF Literature Inc). Webber is definitely a man’s man – he became an Airborne Ranger and then fought in the Vietnam War as one of the tough and elite Green Berets of the 5th US Special Forces. In one occasion, crunched inside a foxhole waiting to engage the Vietcong in bloody battle, Webber surrendered his life to God in full-time ministry.

Webber, drawing upon the work of secular psychologists Robert Moore and Douglas Gillette, says that there are four pillars of Biblical manhood upon which marriage, family, church and community (the nation) rest. All these institutions collapse when the pillars lean out of balance. According to Webber, these pillars and core characteristics of what a Biblical man truly is are the following:

[1] King – provides; core characteristic – cares deeply

[2] Warrior – protects; core characteristic - contends courageously

[3] Mentor – teaches; core characteristic - communicates transparently

[4] Friend – connects; core characteristic – connects deliberately

Citing Gillette and Moore, Webber in page 62 says that the common results in a man when a pillar is leaning, absent or abused are:

[1] King becomes either an abdicator or a tyrant, resulting in disorder and chaos, family dysfunction, and oppression;

[2] Warrior becomes a coward or a brute, results in fear, abuse, cruelty and hatred.

[3] Mentor becomes either a dunce or know-it-all, resulting in lack of discipline, personal immaturity, disregard for Scripture and spiritual insensitivity.

[4] Friend becomes a loner or a smotherer, resulting in unavailability, personal isolation, emotional detachment and illicit sensuality.

Probe Ministries has two articles on Webber's ideas which you might find interesting. These are "Four Pillars of a Man's Heart" and "Is the Tender Warrior Wild at Heart?"

Let’s hear it for the women!

A bonus part of Webber’s book is the postscript “A Woman Among The Pillars.” Here, Webber discusses the ways women can support the King Pillar of their husband’s hearts:

[1] Read, learn, apply and learn.
[2] Love unconditionally.
[3] Listen intently.
[4] Don’t expect him to meet all your emotional needs.
[5] Understand the power you have.
[6] See your husband as God’s gift to you.
[7] Appreciate the little things he does, as well as the “big” things.
[8] Give him some space.
[9] Physically appreciate him
[10] Follow his leadership.
[11] See your marriage as a journey, not a destination.

Well, ladies, there you have it, the keys to understanding the man in your life, from men about men, for men and women ... Happy Father's Day!

Katrina Halili and Hayden Kho scandal: being under the influence of alcohol or drugs is a prohibited defense under RA 9262

2009-05-28T09:16:00.015+08:00

For the past two weeks, the country has been gripped by news stories (print, radio, television, the Web) on the sordid details of the Katrina Halili and Hayden Kho scandal. Someone has accurately described this kind of news coverage and its effect on society as the “tabloidization of Philippine culture.” Even our Senate has jumped into the bandwagon by conducting hearings in “aid of legislation” on this issue. (It was actually Sen. Bong Revilla who started this all.)

Prohibited defense under RA 9262

What’s amazing is that some people like lawyers of the opposing parties, some senators and government officials, people in media, etc. do not know what Republic Act No. 9262 “Anti-Violence Against Women and Their Children Act of 2004” provides. People are discussing the issue of Hayden Kho’s alleged use of drugs at the time the sex videos were made. It seems that this alleged use of illegal drugs is being floated as Hayden Kho’s possible defense against Katrina Halili’s complaints. Some people are discussing habituality and aggravating circumstance in the alleged use of drugs.

Please take note that Section 27 of RA 9262 expressly provides that “being under the influence of alcohol, any illicit drug, or any other mind-altering substance” is a prohibited defense. Simply stated, any man accused of violating RA 9262 cannot use as a defense that he was under the influence of alcohol or of drugs when he committed the act of violence against the woman.

“Persona non grata” resolutions against Hayden

Some local government units are also jumping onto the bandwagon by passing resolutions declaring Hayden Kho as “persona non grata” in their town or city. Meaning, Hayden is not welcome and cannot set foot in their town or city. (If I remember correctly, a female comedian was recently declared “persona non grata” by the City of Baguio for her insulting remarks against Igorots.)

Haven’t these LGUs been advised about the landmark 1919 ruling of the Supreme Court in the case of Villavicencio vs. Lukban? Our local government officials should also read the 1987 Constitution and its provisions on the freedom of mobility.

Do these LGUs really think that they can validly and legally enforce these resolutions against Hayden (or anyone for that matter)? One senator said last night that every town and city in the Philippines should pass these “persona non grata” resolutions against Hayden. Let me use some “argumentum ad absurdum” in discussing this issue. If indeed every town and city passed this kind of a resolution agaunst Hayden, does this mean that he can no linger live in the Philippines?

The only legal way a person can be prohibited from residing in a specific place is when a woman has been convicted in a concubinage case. This is the penalty of destierro imposed on the mistress. Please read my post on “Adultery, concubinage and psychological violence” (look for the link in the sidebar), the comments and my replies to the comments.

Lest I be misunderstood in my discussion about these “persona non grata” resolutions, let me state that I am not condoning in any way Hayden Kho’s actions. I just want to point out some silly, misinformed ideas and legally defective arguments floating around this sordid Katrina Halili and Hayden Kho scandal.

Philippine law on household helpers; pending bills “Batas Kasambahay” or “Magna Carta for Household Helpers”

2009-05-20T08:26:00.014+08:00

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

There are more than six hundred thousand household helpers in the Philippines. And yet only a few families who employ household helpers know that the Philippines has laws (and pending bills) on the employment of househelpers. Our current laws for house helpers are Articles 141 up to 152 of the Labor Code of the Philippines. The said articles state:

Employment of Househelpers

Art. 141. Coverage. This Chapter shall apply to all persons rendering services in households for compensation.

“Domestic or household service” shall mean service in the employer's home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer's household, including services of family drivers.

Art. 142. Contract of domestic service. The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties.

Art. 143. Minimum wage.

Househelpers shall be paid the following minimum wage rates:

Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities;

Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and

Five hundred fifty pesos (P550.00) a month for those in other municipalities.

Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof.

Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993)

Art. 144. Minimum cash wage. The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance.

Art. 145. Assignment to non-household work. No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein.

Art. 146. Opportunity for education. If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper's compensation, unless there is a stipulation to the contrary.

Art. 147. Treatment of househelpers. The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper.

Art. 148. Board, lodging, and medical attendance. The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance.

Art. 149. Indemnity for unjust termination of services. If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.

If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days.

Art. 150. Service of termination notice. If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service.

Art. 151. Employment certification. Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.

Art. 152. Employment record. The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer.

Pending Senate bills: “Batas Kasambahay” or “Magna Carta for Household Helpers”

Several bills aimed at improving the lot of household helpers are pending in the Senate, namely:

[1] SBN-1631: Magna Carta of Household Helpers' or 'Batas Kasambahay'

An Act Providing for the Magna Carta of Household Helpers Filed on September 20, 2007 by Miriam Defensor-Santiago

[2] SBN-1141: Magna Carta of Household Helpers

An Act Instituting Policies Governing the Household Employment Industry, Establishing a Standard of Protection and Promoting the Welfare of Household Helpers Filed on July 4, 2007 by Aquilino Q. Pimentel Jr.

[3] SBN-77: Magna Carta of Household Helpers (Batas Kasambahay)

An Act Instituting Regulatory Policies for the Household Employment Industry, Establishing Standards of Protection and Promotion of Their Welfare and of Their Families, Amending for the... Filed on June 30, 2007 by Loren B. Legarda

Sen. Many Villar has also filed Senate Bill 2275 seeking to increase the minimum wage to P1,200 in Metro Manila; P950 in chartered cities and first-class municipalities; and P750 in other municipalities.

Features of Loren’s bill

Under the proposed Magna Carta for Household Helpers, authored by Sen. Loren Legarda, all domestic staff would be expressly guaranteed the right to just and humane working as well as living conditions, among other freedoms.

Notarized job contract

The bill mandates that a notarized job contract would have to be executed by and between the employer and househelper before the start of any service. This would cover the specific job terms and conditions, including a provision for annual pay increases, indicating the amount mutually agreed and fixed by the parties.

13th month pay, Philhealth coverage

Under the bill, all househelpers would be entitled to statutory pay rates, a 13th month pay equal to one month's salary and mandatory coverage by the Philippine Health Insurance Corp. (Philhealth), on top of existing protection by the Social Security System (SSS).

10 hours of work maximum per day

Househelpers would enjoy normal work hours not exceeding 10 hours every day. Any work they perform in excess would have to be paid extra. They would be entitled to at least eight hours of continuous rest every day, in addition to one-hour respites each for breakfast, lunch and dinner.

14 days annual vacation leave with pay

Househelpers would also work not more than six consecutive days every week. They would be entitled to 14 days annual vacation leave with pay.

Under Legarda’s bill, househelpers would likewise be entitled to basic necessities, including three full meals every day; adequate, private and safe sleeping quarters; as well as advances to cover work-related illnesses or injuries, subject to reimbursement by the SSS and Philhealth.

Legarda’s bill also sets a comprehensive standard for the decent treatment of househelpers. Their mistreatment, such as the deprivation of basic necessities as punishment or disciplinary action, would be totally forbidden.

The bill likewise prohibits the employment of househelpers via sub-contracting; bans recruitment and finder's fees at the househelper's expense; and disallows bonded labor, or the use of future services as collateral for an advance extended to the househelper.

The Ted Failon case (2): RA 7438 rights of persons under custodial investigation; When police officers “invite” you ...

2009-04-24T19:00:00.003+08:00

I will be saying some negative things about police officers and the way they handled the investigation of Failon’s case. Please take note however that I have nothing personal about police officers. I have defended several DEU (Drug Enforcement Unit) officers before the People’s Law Enforcement Boards of Pasig and Mandaluyong and in criminal cases related to their work. (The functions of the DEU have been transferred to the PDEA.) Oftentimes, police officers who arrest drug pushers are harassed by the pushers and their relatives who file various criminal and administrative cases against them.

When I was in MLQU law school in the late 80’s, I had several classmates who were police officers (an investigator who’s now a councilor in a Metro Manila city, a police photographer nicknamed Oca who, before our classes started, always took the bullets out of his .38 caliber revolver, and a Special Action Force guy who sweated profusely every time he got called to recite in our Persons class). Later on, in JRC’s law school, one of our underclassmen was a police officer who became the top PNP general several years ago.

Several of Failon’s household helpers and in-laws were forcibly arrested without warrants two weeks ago. TV news coverage of these arrests showed the police officers handcuffing and holding one suspect by his collar and shoving him inside a police vehicle. The police even arrested one guy inside Trina Etong’s hospital room. When asked by reporters why these persons were being arrested, the police answered that these persons will be subjected to inquest proceedings and then charged. Later on, the police said that they were merely “inviting” these persons for questioning.

What do you do when police officers “invite” you for questioning?

This practice of police officers of picking somebody up under the guise of “inviting” that person for questioning is a widely-abused practice. First of all, just like any invitation, anyone can refuse to go with these police officers when he is “invited” for questioning.

Secondly, police officers have to comply with the provisions of Republic Act 7438, our law on the rights of persons under custodial investigation. RA 7438 provides in Section 2, sub-paragraph f, that custodial investigation includes the common police practice of “inviting” people for questioning. It is clear from the TV news reports that police officers who arrested Failon’s househelpers and relatives did not comply with RA 7438. Posted below are the provisions of this law which became effective in April 27, 1992.

Republic Act no. 7438 “An act defining certain rights of person arrested, detained or under custodial investigation as well as the duties of the arresting, detaining and investigating officers, and providing penalties for violations thereof.”

Section 1. Statement of Policy. - It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights.

Sec. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. - (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel.

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

(c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.

(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

As used this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

Sec. 3. Assisting Counsel. - Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes.

The assisting counsel other than the government lawyers shall be entitled to the following fees:

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies;

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less grave of grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital offense.

The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province comprising such municipality or city shall pay the fee: Provided, That the Municipal of City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees.

In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code.

Sec. 4. Penalty Clause. - (a) Any arresting public officer of employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.

The same penalties shall be imposed upon a officer or employee or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel.

(b) Any person who obstruct, persons or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, of from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape.

Sec. 5. Repealing Clause. - Republic Act No. No. 857, as amended, is hereby repealed. Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.

The Ted Failon case (1): what is obstruction of justice?

2009-04-22T13:00:00.005+08:00

Since last week, our country has been gripped by the tragic story of the death of broadcaster Ted Failon’s wife. Currently, Failon and several others have been charged by the Quezon City police with “obstruction of justice.”

Please take note:

[1] I strongly disagree with the QC police’s contention that a warrant of arrest is not necessary for violations of PD 1829. If the obstruction is being committed in the presence of the police, then a warrantless arrest can be made. But if the obstruction has already taken place several hours or days earlier, then a warrant of arrest is necessary.

[2] The police must file the complaint for obstruction of justice with the fiscal’s office. After the fiscal has determined in a preliminary investigation that a probable cause exists, then he will file the information with the court. It is only the judge who can issue a warrant of arrest.

Posted below is the text of this Marcos-era law which took effect on January 16, 1981.

Presidential Decree No. 1829 “Penalizing Obstruction Of Apprehension And Prosecution Of Criminal Offenders”

WHEREAS, crime and violence continue to proliferate despite the sustained vigorous efforts of the government to effectively contain them;

WHEREAS, to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, it is necessary to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders;

NOW, THEREFORE, I, FERDINAND, E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law do hereby decree and order the following:

Sec. 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.

If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed.

Sec. 2. If any of the foregoing acts is committed by a public official or employee, he shall in addition to the penalties provided thereunder, suffer perpetual disqualification from holding public office.

Free concert for the benefit of street children

2009-04-20T18:00:00.000+08:00

A free concert for the benefit of street children will be held on April 26, 7:00 PM at the University of the Philippines Diliman Film Center. This musical celebration is organized by the non-stock, non-profit, Christian organization Onesimo Foundation.

Swiss Filipino artist Ernie Opiasa will be joined by Armina Riethmüller, the Windsong Band, and the children of Onesimo Foundation in the concert “Reaching Out.”

Onesimo operates ten shelters (therapeutic communities) and drop-in centers in Metro Manila slum areas: at Quezon City’s Payatas, Frisco, Philcoa (2), Mendez, and F.Carlos; Malabon’s Letre and Manila’s Tondo and Quiapo (2). Onesimo has been registered since 1996 as a non-profit organization. It benefits from tax exemption and is licensed as a social institute by the Department of Social Welfare (DSWD).

Onesimo was founded by the couple Christian and Christine Schneider who came as missionaries from Servants Switzerland. The Schneiders speak Filipino as fluently as any native speaker. They lived in the slums for nine years and encountered street children who are suffering from poverty, physical abuse, and substance abuse. According to the couple, the children “have practically no chance to live with dignity, purpose and social respect. But … they have a claim on such a life. In order for them to experience the Christian faith, Onesimo seeks to encourage their self-confidence and initiative without alienating them from their surroundings.” It is for this reason that Onesimo remains in slum communities.

Why the name Onesimo? According to the Schneiders, Onesimus is the name of a young slave who became a friend of Paul. Onesimo Foundation wants children to be delivered from the kind of slavery that exists in slum areas. The couple have since returned to Switzerland with their own children and turned over the management of Onesimo in Manila to Filipinos. From Basel, the couple coordinates volunteer work in Europe with the leadership team in Manila, and they oversee the communication between investors and contacts in Manila, such as the managing committee, the supervisor, and sponsored children.

Onesimo Foundation
#33 T.Sora Ave.,Brgy. Tandang Sora,
Quezon City. Philippine 1104
Phone/Fax: 927 67 19 or 453 77 27
S.E.C.Reg. No. A1996-01786
DSWDLicense No. 2002-NCR-CW-001

The Internet, chat rooms and marital infidelity

2009-04-03T10:15:00.007+08:00

Probably the most read and most commented post in this blog is “Adultery, concubinage, psychological violence and marital infidelity.” Considering that marriage and the family are Biblical institutions, it is very tragic that extra-marital affairs are rampant. Please read my Salt and Light blog posts which discuss the statistics, causes and consequences of extra-marital affairs:

Profile of Filipino users of the Internet

In a recent study, Yahoo! and consumer information group Nielsen revealed that:

There are 20 million Filipino users of the Internet.
The majority of Filipino Internet users range in ages from 10 to 29.
Email (63%), Instant Messaging (63%) and Search (58%) are the most common online activities for Filipino internet users followed by searches (58%), playing games online (53%), social network site (51%), download/upload of digital photos (42%), internet radio (28%), down-/upload music files (25%), read news online (24%), internet SMS (23%), online banking (3%), purchased products online (3%).
Social networking is a key online activity with 51 % of the survey respondents claiming to have visited a social networking site in the past month.

How the Internet is impacting society

If you want to learn more about how the Internet is impacting society, please read “The Psychology of Cyberspace” by John Suler, Ph.D. Department of Psychology, Science and Technology Center, Rider University. Among Suler’s interesting articles are:

The Online Disinhibition Effect: While online some people open up to reveal all sorts of personal feelings and thoughts. Others act out inappropriately in ways they never would in-person. This article explains six factors that contribute to this "disinhibition" effect: dissociative anonymity, invisibility, asynchronicity, solipsistic introjection, dissociative imagination, and minimizing authority, as well as how online disinhibition and suspicion are related to the altering of self-boundary. This revision includes a section about whether the "true self" appears online as a result of disinhibition.
The Basic Psychological Features of Cyberspace: These features can make online encounters very different than those in the "real" world: reduced sensations, texting, identity flexibility, altered perceptions, equalized status, transcended space, temporal flexibility, social multiplicity, recordability, media disruption . This revision mentions current communication technologies and emphasizes these psychological features as elements of a conceptual model for a psychology of cyberspace.
The Final Showdown Between In-Person and Cyberspace Relationships: We develop relationships by hearing, seeing, feeling, intuiting, even smelling and tasting (!) each other. Cyberspace and in-person encounters can be quite different on these dimensions of relating. Those differences have a dramatic effect on friendships and romances. This revision includes minor modifications throughout the article, as well as a new section on defending text and the body.
Do Boys Just Wanna Have Fun?: Gender-Switching in Cyberspace: Why do people switch their gender in cyberspace? Is it possible to detect someone who is faking his gender?
Mom, Dad, Computer: Transference Reactions to Computers: People may not even realize it, but they may be reacting to their computer as if it is their mother, father, or sibling. This article explores the various twists and turns in people's transference reactions to computers and cyberspace.
The Black Hole of Cyberspace: The internet is supposed to respond to us. But sometimes it doesn't. When we receive no reply (especially to an e-mail message), that black hole can draw out of us all sorts of anxieties and insecurities.
Transient and Long Term Online Relationships: The interactive power of the internet gives everyone an opportunity to meet people - sometimes in transient encounters, sometimes in long term friendships and romances.

Bored, lonely housewives and the temptations of online affairs

While the Internet does provide a lot of benefits for students, professionals, government and business, there are dangers that can entangle any person. Several people have e-mailed me about their marriages having been rocked or completely broken up because the husband or the wife had an extra-marital affair with someone he or she met in a chat room.

Probe Ministries, in an article by Kerby Anderson, points out a danger that lonely and bored housewives are falling into, that is, online affairs or the allure of cyber-relationships. I have provided emphasis by boldfacing and sub-headings to Anderson's article:

Peggy Vaughn is the author of “The Monogamy Myth” and also serves as an expert for America Online on problems caused by infidelity. She predicts that one “role of the Internet in the future will be as a source of affairs.” She is writing a second book on the subject of adultery and says she could base half of it just on the letters she receives from people who started an affair online.

What is an online affair?

An online affair (or cyberaffair) is an intimate or sexually explicit communication between a married person and someone other than their spouse that takes place on the Internet. Usually this communication takes place through an online service such as America Online or CompuServe. Participants usually visit a chat room to begin a group conversation and then often move into a one-to-one mode of communication. Chat room categories range from “single and liking it” to “married and flirting” to “naked on the keyboard.”

How women get caught up in online affairs

Women in a chat room are often surprised at what develops in a fairly short period of time. At first the conversation is stimulating, though flirtatious. Quickly, however, women are often confronted with increasingly sexual questions and comments. Even if the comments don’t turn personal, women find themselves quickly sharing intimate information about themselves and their relationships that they would never share with someone in person. Peggy Vaughn says, “Stay-at-home moms in chat rooms are sharing all this personal stuff they are hiding from their partners.” She finds that the intensity of women’s online relationships can “quickly escalate into thinking they have found a soulmate.”

Online affairs differ from physical world affairs in some ways, but are similar in others. Cyberaffairs are based upon written communication where a person may feel more free to express herself anonymously than in person. Frequently the communication becomes sexually graphic and kinky in ways that probably would not occur if a real person were hearing these comments and could act on them. Participants in an online affair will often tell their life stories and their innermost secrets. They will also create a new persona, become sexually adventurous, and pretend to be different than they really are.

The quest for a pure, passionate marriage

Please take time to read my Salt and Light blog post titled “And the bride wore white.” In that post, I discussed among others “Pursuing the Pearl” (a book by Dannah Gresh). In this book, Dannah discusses what she calls “The Enemy’s Fake Pearls” which are [1] status and stuff; [2] social acceptance; [3] giving up and starting over; [4] pride and dreams.

Dannah warns her readers: “Sexual impurity is a zero tolerance arena. You are on shaky ground if there are emotional bonds being created between you and another man (or your husband and another woman).” Dannah explains that these bonds begin with little things like:

Innocently having lunch alone with a man

Seeking advice from a man about personal issues, especially marital issues

Seeking or accepting frequent praise or affirmation from the same man

Being or becoming comfortable with being alone in an office or a home together

Intentionally seeking out time to be with this man

Manipulating your schedule to see him

Spending time fantasizing about him

What’s my point here? If you are a husband or wife who values your marriage and family, stay away from chat rooms!

Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half

2009-03-19T17:06:00.011+08:00

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

Through an e-mail, I was informed of some confusion in the amount of inheritance an illegitimate child is supposed to get from his biological father or mother. There are some blogs and websites which say that an illegitimate child will get as inheritance exactly what a legitimate child will get. This is totally erroneous because of the clear wording of Article 176. The said articles 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 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. (As amended by Republic Act 9255, approved February 24,2004; emphasis by boldfacing supplied)

What does the last sentence of Article 176 clearly say? “The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.” So how come these blogs and websites say that an illegitimate child will get exactly what a legitimate child will get by way of inheritance?

The books on civil law by the late Justice Edgardo L. Paras are still the premier textbooks for law students and lawyers. In his Pre-Week Handbook on Civil Law (pages 274 and 275, 1989 Edition), Justice Paras gives an example of how to compute the legitimes of legitimate and illegitimate children:

Special Rule If Legitimate and Illegitimate Children Survived Together, With or Without the Surviving Spouse

1. First divide the estate among them in the proportion of 10, 5 (10 — for each legitimate child, 10 — for the surviving spouse, 5 — for each illegitimate child) — PROVIDED that with this proportion, the legitimes of the legitimate children and of the surviving spouse are NOT decreased. (Reason: the intestate sharesaxe either the SAME or GREATER than the legitimes; NEVER LESSER).

2. If said legitimes are impaired, just give the legitimes – and these will also be their INTESTATE shares.

Examples

Intestate Estate = Php 15,000.00

Survivors: 1 leg- child, 1 illegitimate child

Give their intestate shares.

ANS. Apply 10, 5

I legitimate child = 10 shares

1 illegitimate child = 5 shares

Total: 15 shares

15 shares = Php 15,000.00

1 share = Php 1,000.00

Therefore: 1 legitimate child = 10 (Php 1.000.00) = P10,000.00

1 illegitimate child = 5 (PI ,000.00) = Php 5,000.00

An algebraic way of presenting the example of Justice Paras is this: Let X be the amount of legitime for the legitimate child and X/2 be the legitime of the illegitimate child.

X + X/2 = Php 15,000.00

(2X + X)/2 = Php 15,000.00

3X/2 = Php 15,000.00

3X = Php 30,000.00

X = Php 10,000.00 (the share of the legitimate child)

x/2 = Php 5,000.00 (the share of the illegitimate child)

Let’s say that the heirs are the surviving spouse, three legitimate children and one illegitimate child. Let’s say the estate (the totality of the property left by the deceased spouse) is Php 200,000.00. First of all, deduct 50% or Php 100,00.00 as the surviving spouse's share in the conjugal property. The remaining Php 100,000.00 will then be divided among the heirs (the surviving spouse is counted as one child).

The solution goes like this:

Let X be the amount of legitime for each of the legitimate children and the surviving spouse.

X (surviving spouse) + (legitimate children) X + X + X + (one illegitimate child) X/2 = Php 100,000.00

4X + X/2 = Php 100,000.00

4X/1 + X/2 = Php 100,000.00

9X/2 = Php 100,000.00

X = Php 22,222.22 (the share of each of the legitimate children and of the surviving spouse)

X/2 = Php 11,111.11 (the share of the illegitimate child in view of Article 176)

Back in the early 1970’s, I lost my NSDB science scholarship in UP Diliman because I failed Physics 41 and Engineering Science I, and barely passed Math 17. If you think my mathematical solutions are wrong, hey, feel free to comment!

A unique way of dividing the conjugal property: Cambodian husband saws house in half

2009-03-04T17:06:00.007+08:00

The Family Code of the Philippines provides for the grounds and procedures in the dissolution and liquidation of the community property or the conjugal partnership. These provisions are:

Dissolution of Absolute Community Regime

Article 99 Causes and effects of termination of ACP
Article 100 Effects of separation de facto on the ACP
Article 101 Abandonment or failure to comply with obligations

Liquidation of the Absolute Community Assets and Liabilities

Article 102 Procedure in liquidation, inventory and payment of obligations of the ACP
Article 103 Liquidation of ACP upon death of either spouse
Article 104 Liquidation of community properties of two or more marriages

Dissolution of Conjugal Partnership of Gains

Article 126 Causes and effects of termination of CPG
Article 127 Separation in fact, effects on CPG
Article 128 Situations under this Article; abandonment

Liquidation of the Conjugal Partnership Assets and Liabilities

Article 129 Steps in liquidating the CPG
Article 130 Liquidation of CPG upon death of either spouse
Article 131 Liquidation of CPG properties of two or more marriages
Article 132 Applicability of Rules of Court
Article 133 Support during liquidation of CPG

What happens to the conjugal property if a marriage is declared null and void?

Please take note that annulment refers to voidable marriages, while declaration of nullity refers to void marriages. When a marriage is annulled or declared null and void, the Supreme Court Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages provides in Section 21 that:

Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes.

Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Articles 50 and 51 of the Family Code mentioned above state:

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

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

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

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

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

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

What does “presumptive legitime” mean?

The term “presumptive legitime” was mentioned several times above. Simply stated, whatever the children are entitled to receive by way of inheritance “computed as of the date of the final judgment of the trial court” must be given to them. Otherwise, the decree of nullity will not be issued or set aside if already issued.

What about if the parents live on for a number of years and then die? Well, then, the children will still receive what they are entitled to inherit minus what they have already received as their presumptive legitimes.

Here’s an interesting way of dividing the conjugal property

These provisions of the Family Code are quite clear. You might be interested however in a unique way a couple in Cambodia solved their problem of dividing up their property (a wooden house). According to an Associated Press report published in USA Today, the man brought his relatives, sawed the house in half and brought his share of the house to his parents’ place nearby. The 18-year marriage ended in divorce over the man’s allegations about his wife’s extramarital affair. Read the complete story of this Cambodian couple.

Mandatory drug testing constitutional for students and employees but not for senators and persons accused of crimes

2009-02-04T15:03:00.000+08:00

The Supreme Court, through a unanimous decision dated November 3, 2008 and penned by Justice Presbitero J. Velasco, Jr, declared as unconstitutional the provisions of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) requiring mandatory drug testing of candidates for senator and persons accused of crimes.

However, the Court upheld the constitutionality of the said law insofar as random drug testing for secondary and tertiary school students as well as for officials and employees of public and private offices is concerned.

Separate petitions questioning the constitutionality of these portions of RA 9165 were filed by Sen. Aquilino Pimentel Jr, Atty. Manuel Laserna and the Social Justice Society. Sen. Pimentel also questioned the validity of COMELEC Resolution No. 6486, alleging that the same created an additional qualification for candidates for senators in addition to those provided in the 1987 Constitution by requiring that the candidates be certified as drug-free.

Highlights of the Court’s decision

[1] The unconstitutionality of Sec. 36(g) of RA 9165 “is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.”

In declaring Sec. 36(g) unconstitutional, the Court said that the same “unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed senator-elect,” adding that the assailed provision of the law and the COMELEC Resolution “add another layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate.”

[2] There is no valid justification for mandatory drug testing for persons accused of crimes, as required by Sec. 36(f) of the law, as a mandatory drug testing in the case of persons charged with a crime before the prosecutor’s office “can never be random or suspicion-less.”

The Court said, “When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will.” To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.”

[3] Mandatory drug testing of secondary and tertiary school students is constitutional. The Court, taking note of the proliferation of prohibited drugs in the country which threaten “the well-being of the people, particularly the youth and school children who usually end up as victims,” stated that until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools “is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected.”

[4] Mandatory but random drug testing is justifiable for officers and employees of public and private offices. As the Court ruled, “The need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest under the premises.”

Safeguards against the violation of rights of students and employees

The Court, taking into account the reduced expectation of privacy on the part of employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of random drug testing, held that the challenged drug test requirement for those employed in public and private offices is, under the limited context of the case, reasonable and constitutional.

The Court also noted that Sec. 94 of RA 9165 charges the Dangerous Drugs Board to issue, in consultation with the Departments of Health, Interior and Local Government, Education, and Labor and Employment, among other agencies, the Implementing Rules and Regulations (IRR) necessary to enforce the law. The Court ruled that “in net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.”

Can nephews and nieces inherit from their grandparents, unmarried uncles or aunts?

2009-01-31T10:06:00.014+08:00

A question that has been asked of me several times concerns the right of nephews and nieces to inherit from their deceased grandparents or unmarried uncles or aunts. For example, I received this inquiry several months ago:

I have an aunt, Rowena, with no surviving ascendants, who never married and has no legitimate or illegitimate children. She is survived by a younger sister, Josefa, a widower. Rowena’s other siblings, two brothers and another sister, have died.

All of Rowena’s siblings, Josefa and the three deceased, have children.

In case Rowena dies, who will inherit her estate? Josefa alone? Or Josefa jointly with the children of Rowena’s deceased brothers and sisters (meaning the nephews and nieces)?

If a person dies without a spouse, parents, legitimate or illegitimate children, then the collateral relatives (brothers and sisters, nephews and nieces) will inherit

Articles 1003 to 1010 are the NCC's governing rules on the right of collateral relatives to inherit:

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.

Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood.

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

The “iron barrier” between the legitimate and illegitimate sides of the family

Please take note however of Article 992 of the New Civil Code of the Philippines which states:

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

This is known as the “iron barrier” which separates the legitimate and illegitimate sides of a family. Thus, in the example I cited at the top of this post, if the nephews and nieces are illegitimate, then they are prohibited by Article 992 from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents.

This barrier may sound harsh and unfair to some people. For a fuller discussion of the “iron barrier,” please read the Supreme Court decision in Anselma Diaz vs. IAC, G.R. No. L-66574 February 21, 1990.

Right of representation

Coming back to the question posted above, can these nephews and nieces whose parents predeceased (died before) their aunt Rowena died have the right to inherit from her? The legal issue here is the right of representation which is governed by Articles 970 to 977 of the New Civil Code of the Philippines (NCC). Let’s take note first of Article 1025 NCC which states:

“In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41.”

There is some confusion on this issue because of the wording of Article 1025. A lot of lawyers will tell you that these nephews and nieces do not have the right to inherit since their parents PREDECEASED the aunt. These lawyers will emphasize the phrase "no exception" as discussed in the book “Civil Code of the Philippines Annotated, Volume III, Wills and Succession” by Justice Edgardo Paras. As Justice Paras says in page 474 of his book, “Even in case of representation, the representative must already be alive or at least conceived at the time the succession opens. He himself must be capable of succeeding the decedent.” Also civil law expert Desiderio P. Jurado says in pages 480 and 481 of his book “Comments and Jurisprudence on Succession” that “it is essential that the representative must be living at the moment the succession opens.”

Nephews and nieces already alive when the aunt or uncle died can inherit by representing their predeceased parents

The proper interpretation of Article 1025 is this: Were the nephews and nieces already alive when the succession opened, that is, when the aunt died? If yes, then they have the right to inherit by way of representation of their parents. They will inherit together with the surviving brothers and sisters of the aunt. Their share is whatever the share of each brother or sister, to be divided equally among them.

For another example, let’s say there are five brothers and sisters A, B, C, D and E. Then A died before E, leaving four children who are all alive at the time their aunt E died. Let’s call the four children (nephews and nieces of E) as U,V, W and X. Let’s say that each of the brothers and sisters (including A who predeceased E) is entitled to Php 500,000. as their share in the inheritance on a per capita basis. The four children (the nephews and nieces) will then divide among themselves the Php 500,000. share of A on a per stirpes basis.

Per stirpes and per capita division of the inheritance

The per stirpes basis means that the four children’s individual shares will not be equal to the share of the remaining siblings. The NCC speaks of shares per capita and per stirpes. The four siblings (A, B,C and D) are entitled to inherit from E on a per capita basis. Since A has died, his children (nephews and nieces U,V, W and X) will inherit by right of representation of their father A. Their share in the inheritance will be on a per stirpes basis.

In simple terms, the shares of the siblings (B, C and D) who are still alive are greater than that of the nephews and nieces U,V, W and X. This is because they will inherit fully their share while the nephews and nieces will divide among themselves the respective share that was supposed to go to A.

Grandnephews and grandnieces cannot inherit by right of representation

As I said, the right of representation is discussed in Articles 970 to 977 of the NCC. What about grandnephews and grandnieces? Well Article 972 provides that the right of representation extends only to nephews and nieces.

Questioning the legitimacy of a child, simulation of birth, cancellation of birth certificates

2009-01-21T18:07:00.010+08:00

The Family Code establishes the legitimacy of a child born during a marriage. Thus, Articles 164 and 167 provide that:

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

Grounds for questioning the legitimacy of a child

Article 166 of the Family Code provides for the grounds for impugning (questioning) the legitimacy of a child:

Art. 166. Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

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

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

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

Periods within which to question the legitimacy of a child; who may question legitimacy

Articles 170 and 171 provide for the periods within which the court action for questioning the legitimacy of a child should be filed and the parties who can file such action:

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.

Can the action to question the legitimacy of a child be filed beyond the periods provided by Article 170?

This question was raised in the 2000 case of “Teofista Babiera, petitioner, vs. Presentacion B. Catotal, respondent.” The Supreme Court clarified that:

[1] Articles 170 and 171 of the Family Code apply to instances in which the father impugns the legitimacy of his wife’s child. The provisions, however, presuppose that the child was the undisputed offspring of the mother.

These articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. These articles do not contemplate a situation where a child is alleged not to be the child of nature or biological child of a certain couple.

[2] A birth certificate may be ordered cancelled upon adequate proof that it is fictitious. Thus, void is a certificate which shows that the mother was already fifty-four years old at the time of the child's birth and which was signed neither by the civil registrar nor by the supposed mother. Because her inheritance rights are adversely affected, the legitimate child of such mother is a proper party in the proceedings for the cancellation of the said certificate.

Facts of the case

Briefly, Presentacion B. Catotal (or Presentacion, for brevity) questioned the authenticity of the birth certificate of Teofista Babiera (Teofista for brevity) as to the identity of her biological parents, Eugenio and Hermogena Babiera. Presentacion claimed that Teofista, instead of being her biological sister, was actually the child of a house helper who made it appear in the birth certificate that Teofista was the Babiera couple’s offspring.

Presentacion claimed that the birth certificate of Teofista Guinto was void ab initio, as it was totally a simulated birth, the signature of informant forged, and it contained false entries, to wit:

(a) The child is made to appear as the legitimate child of the late spouses Eugenio Babiera and Hermogena Cariñosa, when she is not;

(b) The signature of Hermogena Cariñosa, the mother, is falsified/forged. She was not the informant; (c) The family name BABIERA is false and unlawful and her correct family name is GUINTO, her mother being single;

(d) Her real mother was Flora Guinto and her status, an illegitimate child;

(e) The birth certificate was patently a simulation of birth, since it was clinically and medically impossible for the supposed parents to bear a child in 1956 because of the age of the alleged parents, Hermogena being 54 years old and the Eugenio being 65 years old.

Presentacion asked the court to declare the certificate of birth of Teofista as void, invalid and ineffective and for the cancellation of her birth certificate.

Teofista, on the other hand, countered that:

(1) Presentacion’s petition stated no cause of action, it being an attack on the legitimacy of the respondent as the child of the spouses Eugenio Babiera and Hermogena Cariñosa Babiera;

(2) Presentacion had no legal capacity to file the instant petition pursuant to Article 171 of the Family Code; and

(3) The petition was barred by prescription in accordance with Article 170 of the Family Code.

Teofista also presented her Certificate of Birth, Certificate of Baptism, and Student's Report Card which showed she and Presentacion were sisters of the full-blood, they being the offspring of spouses Eugenio Babiera and Hermogena C. Babiera.

Ruling of the Court of Appeals

The CA held that the evidence adduced during trial proved that Teofista was not the biological child of Hermogena Babiera. It also ruled that no evidence was presented to show that Hermogena became pregnant in 1959. It further observed that she was already 54 years old at the time, and that her last pregnancy had occurred way back in 1941. The CA noted that the supposed birth took place at home, notwithstanding the advanced age of Hermogena and its concomitant medical complications. Moreover, Teofista’s Birth Certificate was not signed by the local civil registrar, and the signature therein, which was purported to be that of Hermogena, was different from her other signatures.

The CA also deemed inapplicable Articles 170 and 171 of the Family Code, which stated that only the father could impugn the child's legitimacy, and that the same was not subject to a collateral attack. It held that said provisions contemplated a situation wherein the husband or his heirs asserted that the child of the wife was not his. In this case, the action involved the cancellation of the child’s Birth Certificate for being void ab initio on the ground that the child did not belong to either the father or the mother.

Ruling of the Supreme Court (excerpts)

The Court, in affirming the CA decision, explained that:

[1] Article 171 of the Family Code is not applicable to the present case. A close reading of this provision shows that it applies to instances in which the father impugns the legitimacy of his wife’s child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner.

In other words, the prayer herein is not to declare that Teofista is an illegitimate child of Hermogena, but to establish that the former is not the latter's child at all. Verily, the present action does not impugn Teofista’s filiation to Spouses Eugenio and Hermogena Babiera, because there is no blood relation to impugn in the first place.

[2] Teofista contends that the action to contest her status as a child of the late Hermogena Babiera has already prescribed. She cites Article 170 of the Family Code which provides the prescriptive period for such action.

This argument is bereft of merit. The present action involves the cancellation of Teofista’s Birth Certificate; it does not impugn her legitimacy. Thus, the prescriptive period set forth in Article 170 of the Family Code does not apply. Verily, the action to nullify the Birth Certificate does not prescribe, because it was allegedly void ab initio.

[3] Teofista argues that the evidence presented, especially Hermogena’s testimony that petitioner was not her real child, cannot overcome the presumption of regularity in the issuance of the Birth Certificate.

While it is true that an official document such as petitioner’s Birth Certificate enjoys the presumption of regularity, the specific facts attendant in the case at bar, as well as the totality of the evidence presented during trial, sufficiently negate such presumption.

First, there were already irregularities regarding the Birth Certificate itself. It was not signed by the local civil registrar. More important, the Court of Appeals observed that the mother’s signature therein was different from her signatures in other documents presented during the trial.

Second, the circumstances surrounding the birth of petitioner show that Hermogena is not the former's real mother. For one, there is no evidence of Hermogena’s pregnancy, such as medical records and doctor’s prescriptions, other than the Birth Certificate itself. In fact, no witness was presented to attest to the pregnancy of Hermogena during that time. Moreover, at the time of her supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have given birth at such a late age, it was highly suspicious that she did so in her own home, when her advanced age necessitated proper medical care normally available only in a hospital.

The most significant piece of evidence, however, is the deposition of Hermogena Babiera which states that she did not give birth to petitioner, and that the latter was not hers nor her husband Eugenio’s.

Relying merely on the assumption of validity of the Birth Certificate, Teofista has presented no other evidence other than the said document to show that she is really Hermogena’s child. Neither has she provided any reason why her supposed mother would make a deposition stating that the former was not the latter's child at all.

All in all, we find no reason to reverse or modify the factual finding of the trial and the appellate courts that Teofista was not the child of Eugenio and Hermogena Baviera.

Notes: The Supreme Court reiterated these rulings in the 2001 case of Lee et al vs. Court of Appeals et al.

The picture at the top of this post is from ChristianPhotos.Net (Free High Resolution Photos for Christian Publications).

Sexual infidelity or promiscuity does not constitute psychological incapacity

2009-01-06T14:02:00.005+08:00

In the case of David B. Dedel Versus Court of Appeals And Sharon L. Corpuz-Dedel a.k.a. Jane Ibrahim decided in 2004, the Supreme Court ruled that:

(1) Sexual infidelity or promiscuity does not constitute psychological incapacity;

(2) Emotional immaturity and irresponsibility cannot be equated with psychological incapacity.

(3) The trial court does not have authority to dissolve a church marriage since that authority is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church.

The Court also clarified the differences between the grounds for declaration of nullity of marriage and for legal separation.

Facts of the case

[1] Petitioner David B. Dedel (“David”) met respondent Sharon L. Corpuz Dedel (“Sharon”) while he was working in the advertising business of his father. The acquaintance led to courtship and romantic relations, culminating in the exchange of marital vows before the City Court of Pasay on September 28, 1966. The civil marriage was ratified in a church wedding on May 20, 1967.

The union produced four children, namely: Beverly Jane, born on September 18, 1968; Stephanie Janice born on September 9, 1969; Kenneth David born on April 24, 1971; and Ingrid born on October 20, 1976. The conjugal partnership, nonetheless, acquired neither property nor debt.

[2] David alleged that during the marriage, Sharon turned out to be an irresponsible and immature wife and mother. She had extra-marital affairs with several men: a dentist in the Armed Forces of the Philippines; a Lieutenant in the Presidential Security Command and later a Jordanian national.

Sharon was once confirmed in the Manila Medical City for treatment by Dr. Lourdes Lapuz, a clinical psychiatrist. David alleged that despite the treatment, Sharon did not stop her illicit relationship with the Jordanian national named Mustafa Ibrahim, whom she married and with whom she had two children. However, when Mustafa Ibrahim left the country, Sharon returned to David bringing along her two children by Ibrahim. David accepted her back and even considered the two illegitimate children as his own. Thereafter, on December 9, 1995, Sharon abandoned David to join Ibrahim in Jordan with their two children. Since then, Sharon would only return to the country on special occasions.

[3] Finally, giving up all hope of a reconciliation with Sharon, David filed on April 1, 1997 a petition seeking the declaration of nullity of his marriage on the ground of psychological incapacity, as defined in Article 36 of the Family Code, before the Regional Trial Court of Makati City, Branch 149. Summons was effected by publication in the Pilipino Star Ngayon, a newspaper of general circulation in the country considering that Sharon did not reside and could not be found in the Philippines.

David presented Dr. Natividad A. Dayan, who testified that she conducted a psychological evaluation of petitioner and found him to be conscientious, hardworking, diligent, a perfectionist who wants all tasks and projects completed up to the final detail and who exerts his best in whatever he does.

On the other hand, Dr. Dayan declared that Sharon was suffering from Anti-Social Personality Disorder exhibited by her blatant display of infidelity; that she committed several indiscretions and had no capacity for remorse, even bringing with her the two children of Mustafa Ibrahim to live with petitioner. Such immaturity and irresponsibility in handling the marriage like her repeated acts of infidelity and abandonment of her family are indications of Anti-Social Personality Disorder amounting to psychological incapacity to perform the essential obligations of marriage.

[4] After trial, the Makati City RTC granted the petition, declaring the civil and church marriages between David and Sharon celebrated on September 28, 1966 and May 20, 1967 null and void on the ground of psychological incapacity on Sharon’s part to perform the essential obligations of marriage under Article 36 of the Family Code

[5] The Office of the Solicitor General (OSG) appealed the decision to the Court of Appeals. The CA set aside the judgment of the Makati City trial court and ordered the dismissal of the petition for declaration of nullity of marriage.

When his Motion for Reconsideration was denied, David then appealed to the Supreme Court. The SC upheld the decision of Court of Appeals by stating:

Sharon's sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity or sexual promiscuity.

Ruling of the Supreme Court (excerpts)

[1] The main question for resolution is whether or not the totality of the evidence presented is enough to sustain a finding that respondent is psychologically incapacitated. More specifically, does the aberrant sexual behavior of respondent adverted to by petitioner fall within the term “psychological incapacity.”

[2] “Psychological incapacity” should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.

There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity of inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate.

[3] The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code.

If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.

[4] Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinion of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable.

[5] The difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. In this case, Sharon’s sexual infidelity can hardly qualify as being mentally or psychically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof. It appears that Sharon’s promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children.

[6] At best, the circumstances relied upon by petitioner are grounds for legal separation under Article 55 of the Family Code. However, we pointed out in Marcos v. Marcos that Article 36 is not to be equated with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. In short, the evidence presented by David refers only to grounds for legal separation, not for declaring a marriage void.

[7] We likewise agree with the Court of Appeals that the trial court has no jurisdiction to dissolve the church marriage of David and Sharon. The authority to do so is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church.

[8] All told, we find no cogent reason to disturb the ruling of the appellate court. We cannot deny the grief, frustration and even desperation of David in his present situation. Regrettably, there are circumstances, like in this case, where neither law nor society can provide the specific answers to every individual problem. While we sympathize with David’s marital predicament, our first and foremost duty is to apply the law no matter how harsh it may be.

What was the Star of Bethlehem?

2008-12-23T12:01:00.002+08:00

What was the Star of Bethlehem? Currently making waves abroad and here in the Philippines are the website and DVD entitled “The Star of Bethlehem” by Frederick A. Larson, a litigation lawyer and professor at Texas A&M University. Essentially, Larson says that the star of Bethlehem was “the planet Jupiter crowning the star Regulus in a rare triple conjunction and then rendezvousing with the planet Venus.” Is Larson correct? Read more ...

"Irreconcilable differences” not a ground for declaring a marriage null and void

2008-12-15T12:11:00.006+08:00

In the United States, almost all states have what is known as “no-fault divorce law.” All that the petitioner has to do to get a divorce is to state that the spouses have irreconcilable differences. Here in the Philippines, our Supreme Court in Juanita Carating-Siayngco vs. Manuel Siyangco ruled that “irreconcilable differences” cannot be used as ground for declaring a marriage null and void under Article 36 (“psychological incapacity”) of the Family Code.

The facts of the case

[1] Petitioner Juanita Carating-Siayngco and respondent Manuel were married at civil rites on 27 June 1973 and before the Catholic Church on 11 August 1973. After discovering that they could not have a child of their own, the couple decided to adopt a baby boy in 1977, who they named Jeremy.

[2] On 25 September 1997, or after twenty-four (24) years of married life together, respondent Manuel filed for the declaration of its nullity on the ground of psychological incapacity of petitioner Juanita.

He alleged that all throughout their marriage, his wife exhibited an over domineering and selfish attitude towards him which was exacerbated by her extremely volatile and bellicose nature; that she incessantly complained about almost everything and anyone connected with him like his elderly parents, the staff in his office and anything not of her liking like the physical arrangement, tables, chairs, wastebaskets in his office and with other trivial matters; that she showed no respect or regard at all for the prestige and high position of his office as judge of the Municipal Trial Court; that she would yell and scream at him and throw objects around the house within the hearing of their neighbors; and that she cared even less about his professional advancement as she did not even give him moral support and encouragement.

[3] Manuel further alleged that Juanita’s psychological incapacity arose before marriage, rooted in her deep-seated resentment and vindictiveness for what she perceived as lack of love and appreciation from her own parents since childhood and that such incapacity is permanent and incurable and, even if treatment could be attempted, it will involve time and expense beyond the emotional and physical capacity of the parties; and that he endured and suffered through his turbulent and loveless marriage to her for twenty-two (22) years.

[4] In her Answer, petitioner Juanita alleged that respondent Manuel is still living with her at their conjugal home in Malolos, Bulacan; that he invented malicious stories against her so that he could be free to marry his paramour; that she is a loving wife and mother; that it was respondent Manuel who was remiss in his marital and family obligations; that she supported respondent Manuel in all his endeavors despite his philandering; that she was raised in a real happy family and had a happy childhood contrary to what was stated in the complaint.

[5] The Family Court denied Manuel’s petition declaration of nullity of his marriage to Juanita. On appeal, the Court of Appeals reversed the lower court’s decision and granted Manuel’s petition. The Supreme Court however reversed the CA and held that:

“We are not downplaying the frustration and misery respondent Manuel might be experiencing in being shackled, so to speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem.”

The Supreme Court ruling (excerpts)

[1] From the totality of the evidence adduced by both parties, we have been allowed a window into the Siayngco’s life and have perceived therefrom a simple case of a married couple drifting apart, becoming strangers to each other, with the husband consequently falling out of love and wanting a way out.An unsatisfactory marriage, however, is not a null and void marriage. Mere showing of “irreconcilable differences” and “conflicting personalities” in no wise constitutes psychological incapacity. As we stated in Marcos v. Marcos:

Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifests themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.

We are not downplaying the frustration and misery respondent Manuel might be experiencing in being shackled, so to speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem.

[2] Whether or not psychological incapacity exists in a given case calling for the declaration of the nullity of the marriage depends crucially on the facts of the case.

[3] The burden of proof to show the nullity of marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family.

[4] The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the trial court’s decision.

Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will.

All’s well that ends well

October and November, I attended four Saturdays of Mandatory Continuing Legal Education seminars sponsored by the IBP CALMANA. One of the MCLE lecturers, Judge Marissa Guillen of Makati City, informed the seminar participants that the parties in this case (Manuel and Juanita) have reconciled and are now a totally devoted couple. Amor omnia vincit!