Published October 11th, 2007 in Family and Property Law. Tags: conjugal partnership, law, marriage, philippines, property relations.
We previously noted that we are breaking down the discussion on the property relations of the spouses during marriage, as follows: (1) Prenuptial agreements and introduction to property relations between husband and wife; (2) The system of absolute community; (3) Conjugal partnership of gains; (4) Complete separation of property; (5) Donations by reason of marriage; and (6) Comparison of the various types of property relations between spouses. This post is Part 3.
What is the conjugal partnership of gains?
Oftentimes referred to as the CPG, it is one of the property relations between the spouses, under which the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. In other words, the following are placed in a common fund:
1. the proceeds, products, fruits and income from their separate properties; and
2. those acquired by either or both spouses through their efforts or by chance.
In what instances shall the regime of CPG apply?
It applies only when the future spouses agree to it in the marriage settlement, if any. It also applies to conjugal partnerships of gains already established between spouses before the effectivity of the Family Code, without prejudice to vested rights. This is the default property relationship under the Civil Code, which was changed to that of absolute community of property under the Family Code.
When does the CPG begin?
It begins at the precise moment when the marriage is celebrated, exactly like in absolute community of property.
Can a spouse waive his/her share in the community property during marriage?
No. Except in case of judicial separation of property, any waiver of rights, shares and effects of the absolute community of property during the marriage can be made.
Are the rules on ordinary partnership applicable to the conjugal partnership of gains?
As a rule, yes, but only if not in what is expressly provided in the pertinent provisions of the Family Code or by the spouses in their marriage settlements.
What are the exclusive property of each spouse?
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by gratuitous title (through pure liberality, as in donation and testate/intestate succession);
(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife or of the husband.
What is the significance of having an exclusive property?
The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. A spouse may also mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same.
Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place the property is located. However, the alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse.
What properties belong to the conjugal partnership?
(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse.
What is the presumption regarding properties acquired during marriage?
All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved.
What is the rule in case of purchase by installment?
Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership.
What is the rule in case a spouse has a credit payable to him over time?
Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership.
What is the rule if improvements are made on that exclusive property using conjugal funds or through the acts or efforts of either or both spouses?
The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules:
1. When the cost of the improvement made by the conjugal partnership and any resulting increase in value are MORE than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership.
2. When the cost of the improvement made by the conjugal partnership and any resulting increase in value are LESS than the value of the property at the time of the improvement, the entire property shall remain with the owner-spouse.
3. In either case, the owner-spouse or the conjugal partnership, as the case may be, is entitled to reimbursement for the value of the principal property or the improvement, as the case may be.
4. It doesn’t matter if the improvements are for utility or adornment.
What are the charges upon and obligations of the conjugal partnership?
The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of the Family Code on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.
What are the rules concerning personal debts contracted before or during the marriage?
1. As a rule, the payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership properties.
2. However, these debts shall be charged to the conjugal partnership properties insofar as they redounded to the benefit of the family.
3. If the spouse has no exclusive property, it may be charged to the conjugal partnership, subject to the provisions below.
What are the rules concerning fines and pecuniary indemnities imposed on each spouse?
These cannot be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the charges/obligations enumerated in above have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purpose above-mentioned.
What is the rule in case of winnings or losses in gambling?
Any loss incurred by a spouse during the marriage in any game of chance or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by that spouse, and shall not be charged to the conjugal partnership. Any winnings, on the other hand, shall form part of the conjugal partnership property.
Who has the authority to administer the conjugal partnership property?
The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.
Can either spouse make donations of conjugal partnership property?
As a rule, neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress.
When does the conjugal partnership terminate?
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage.
Does the separation in fact or de facto separation between the spouses affect the conjugal partnership?
No. However, the following are the effects:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter’s share.
What is the rule if a spouse abandons the other?
If a spouse without just cause abandons the other or fails to comply with his or her obligation to the family (referring to marital, parental or property relations), the aggrieved
spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to
such precautionary conditions as the court may impose.
A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling
for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling.
What is the applicable procedure in the event of dissolution of the conjugal partnership regime?
The following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties.
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Family Code.
(8) The presumptive legitimes of the common children shall be delivered upon partition.
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.
If a spouse dies, how is the conjugal partnership liquidated?
Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse.
What happens if the foregoing procedure in the immediately preceding paragraph is not carried out?
If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or encumbrance involving conjugal partnership property by the surviving spouse shall be void; and (b) any subsequent marriage shall be governed by the mandatory regime of complete separation of property.
How is support charged during the liquidation?
From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them.
Showing posts with label Philippines. Show all posts
Showing posts with label Philippines. Show all posts
Wednesday, July 16, 2008
Last Will and Testament: Basic Discussion
Published January 26th, 2008 in Family and Property Law and Tax and Estate Law.
The settlement of a person’s estate after his/her death, based on our experience, is potentially one of the more bitter litigations. It’s never good to see relatives fighting each other. Some persons, with the intent of controlling the disposition of his/her properties after his/her death (and hopefully prevent fighting among his/her heirs over the properties left), prepare a “last will and testament”. Let’s have a brief discussion on this matter.
What is a “last will and testament”?
A “last will and testament,” or simply a “will,” is “an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate”. It is a document whereby a person, called the “testator,” disposes of his/her properties or “estate,” to take effect upon his/her death.
The “testator” is the deceased person who made a last will and testament.
The person who is given PERSONAL property through a will is technically called the “legatee,” while the person who is given REAL property in a will is called the “devisee.”
The person named in the will who is entrusted to implement its provisions is called the “executor.” If the “executor” is female, she is formally known as the “executrix”.
Is a “will” the same as “inheritance”?
No. A will is different from inheritance, which “includes all the property, rights and obligations of a person which are not extinguished by his death” (Civil Code, Art. 776). In other words, the basic difference between a “will” and “inheritance” is that a “will” is the document that determines the disposition of the “inheritance”.
If a document is entitled a “last will and testament” but it provides that all properties must be transferred during the lifetime of the testator, is this a “will”?
No. A will takes effect upon death of the testator. If the disposition takes effect before his/her death, it is a donation and is governed by the formalities of and legal provisions on donations.
What are the kinds of wills?
There are two kinds of wills — holographic and notarial. A holographic will must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed (Article 810, Civil Code). On the other hand, a notarial will is governed by the following provisions of the Civil Code, among others:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.
What happens if there’s no will or if a will is not probated?
A will enables a person to have control over the disposition of his/her estate. In the absence of a will, the general provisions of law govern the disposition of the estate of the deceased person. The proceedings in the absence of a will is called “intestate proceedings.”
What is “probate”?
“Probate” is a special proceeding to establish the validity of a will. Probate is mandatory, which means that no will passes either real or personal property unless it is proved and allowed in a proper court. Courts in probate proceedings, as a rule, are limited to pass only upon the extrinsic validity of the will sought to be probated, but the courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will, under exceptional circumstances.
A will may be probated during the lifetime fo the testator. This way, the testator could himself/herself affirm the validity of the will.
What is “reprobate”?
It is a special proceeding to establish the validity of a will previously proved in a foreign country.
Can the heirs of the deceased person refuse to produce the will?
The person who has custody of the will has the legal obligation to produce it. The practical problem with this is when only a few persons know about the existence of the will and all of them agree not to produce it. This is one of the reasons why some testators sometimes entrust the custody of a will to their lawyers, who are then obligated upon death of said testator to enforce the provisions of his/her will.
In the case of Dy Yieng Sangio vs. Reyes (G.R. Nos. 140371-72 (27 November 2006), a petition for the settlement of the intestate estate was filed. The oppositors argued that the deceased has a holographic will and that the intestate proceedings should be automatically suspended and replaced by the proceedings for the probate of the will. A
petition for probate of the holographic will was eventually filed. The Supreme Court ordered the probate of the will and the suspension of the intestate proceedings. According to the SC, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.
If a document is not entitled “last will and testament,” could it still be treated as a will?
Yes. In the same case of Dy Yieng Sangio vs. Reyes, the document is entitled “Kasulatan ng Pag-Aalis ng Mana.” The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.
The settlement of a person’s estate after his/her death, based on our experience, is potentially one of the more bitter litigations. It’s never good to see relatives fighting each other. Some persons, with the intent of controlling the disposition of his/her properties after his/her death (and hopefully prevent fighting among his/her heirs over the properties left), prepare a “last will and testament”. Let’s have a brief discussion on this matter.
What is a “last will and testament”?
A “last will and testament,” or simply a “will,” is “an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate”. It is a document whereby a person, called the “testator,” disposes of his/her properties or “estate,” to take effect upon his/her death.
The “testator” is the deceased person who made a last will and testament.
The person who is given PERSONAL property through a will is technically called the “legatee,” while the person who is given REAL property in a will is called the “devisee.”
The person named in the will who is entrusted to implement its provisions is called the “executor.” If the “executor” is female, she is formally known as the “executrix”.
Is a “will” the same as “inheritance”?
No. A will is different from inheritance, which “includes all the property, rights and obligations of a person which are not extinguished by his death” (Civil Code, Art. 776). In other words, the basic difference between a “will” and “inheritance” is that a “will” is the document that determines the disposition of the “inheritance”.
If a document is entitled a “last will and testament” but it provides that all properties must be transferred during the lifetime of the testator, is this a “will”?
No. A will takes effect upon death of the testator. If the disposition takes effect before his/her death, it is a donation and is governed by the formalities of and legal provisions on donations.
What are the kinds of wills?
There are two kinds of wills — holographic and notarial. A holographic will must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed (Article 810, Civil Code). On the other hand, a notarial will is governed by the following provisions of the Civil Code, among others:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.
What happens if there’s no will or if a will is not probated?
A will enables a person to have control over the disposition of his/her estate. In the absence of a will, the general provisions of law govern the disposition of the estate of the deceased person. The proceedings in the absence of a will is called “intestate proceedings.”
What is “probate”?
“Probate” is a special proceeding to establish the validity of a will. Probate is mandatory, which means that no will passes either real or personal property unless it is proved and allowed in a proper court. Courts in probate proceedings, as a rule, are limited to pass only upon the extrinsic validity of the will sought to be probated, but the courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will, under exceptional circumstances.
A will may be probated during the lifetime fo the testator. This way, the testator could himself/herself affirm the validity of the will.
What is “reprobate”?
It is a special proceeding to establish the validity of a will previously proved in a foreign country.
Can the heirs of the deceased person refuse to produce the will?
The person who has custody of the will has the legal obligation to produce it. The practical problem with this is when only a few persons know about the existence of the will and all of them agree not to produce it. This is one of the reasons why some testators sometimes entrust the custody of a will to their lawyers, who are then obligated upon death of said testator to enforce the provisions of his/her will.
In the case of Dy Yieng Sangio vs. Reyes (G.R. Nos. 140371-72 (27 November 2006), a petition for the settlement of the intestate estate was filed. The oppositors argued that the deceased has a holographic will and that the intestate proceedings should be automatically suspended and replaced by the proceedings for the probate of the will. A
petition for probate of the holographic will was eventually filed. The Supreme Court ordered the probate of the will and the suspension of the intestate proceedings. According to the SC, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.
If a document is not entitled “last will and testament,” could it still be treated as a will?
Yes. In the same case of Dy Yieng Sangio vs. Reyes, the document is entitled “Kasulatan ng Pag-Aalis ng Mana.” The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.
Effects of Foreign Divorce on Filipino Spouse
Published November 7th, 2006 in Annulment and Legal Separation.
On 17 July 1987, shortly after the signing of Executive Order No. 209 (Family Code), Executive Order No. 227 was also signed into law, amending, inter alia, Article 26 of the Family Code. As so amended, it now states:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Italics supplied)
Article 26, par. 2, is an important innovation belatedly introduced by the Aquino Government, which is intended to extricate the Filipino spouse from an absurd and unjust situation in which he or she is married to someone who is not married to him or her. This provision applies only to cases where at the time of celebration of marriage, the parties are a Filipino citizen and a foreigner. In effect, this provision introduces divorce in our country, much less extends some degree of recognition to foreign divorce, although in exceptional cases.
Significantly, Article 26, par.2 now includes cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree capacitating him or her to remarry. The Filipino spouse should likewise be permitted to remarry as if the other party were an alien at the time of solemnization of the marriage (Republic vs. Orbecido, GR 154380, 5 October 2005).
Article 26, par.2 may have raised some problems than it solves. A number of questions can be raised with respect to the operation of this provision, to wit:
1. Is there a need for a judicial decree in Philippine courts to declare the Filipino spouse qualified to remarry? The Family Code has no explicit provision to that effect, unlike in cases of void marriages and of a remarriage in case of absence of one of the spouses amounting to presumptive death (Art. 40 and 41, Family Code) where a court decree is required.
2. Is Art. 26, par. 2 applicable to foreign divorces obtained before the effectivity of the Family Code in view of Art. 256?
3. What if the Filipino spouse does not intend to remarry, what is the status of any children they may have after the divorce decree? Does the Filipino spouse have a right to demand support from his/her former alien spouse? What is his/her status with respect to his/her former foreign spouse? Can he/she claim share of property or income acquired by the former foreign spouse.
Moreover, I am of the moral view that the Orbecido doctrine is open to constitutional questions, viz:
1. Is the Orbecido ruling violative of the equal protection of the law clause of the Constitution as it favors only the rich, who may use or abuse the remedy of naturalization as foreign citizen and obtaining a valid foreign divorce and having it recognized in the Philippines in order to terminate his or her marriage with the Filipino spouse given the great difficulty in having a declaration of nullity and annulment of marriage granted at the appellate level of the court?
2. Is the Orbecido ruling tantamount to judicial legislation considering the fact that the Supreme Court has in effect amended Art 26, par. 2 of the Family Code, a substantive law? The OSG had posited that the issue was a matter of legislation and not of judicial legislation, a contention which was not addressed by the Supreme Court in its ruling. Would it not be much more orderly and customary if the Orbecido doctrine be cast in statutory form like the conflicting SC rulings namely People vs. Aragon, Wiegel vs. Sempio-Diy, and Yap vs. Paras, which were set in stone by Art. 40 of the Family Code?
On 17 July 1987, shortly after the signing of Executive Order No. 209 (Family Code), Executive Order No. 227 was also signed into law, amending, inter alia, Article 26 of the Family Code. As so amended, it now states:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Italics supplied)
Article 26, par. 2, is an important innovation belatedly introduced by the Aquino Government, which is intended to extricate the Filipino spouse from an absurd and unjust situation in which he or she is married to someone who is not married to him or her. This provision applies only to cases where at the time of celebration of marriage, the parties are a Filipino citizen and a foreigner. In effect, this provision introduces divorce in our country, much less extends some degree of recognition to foreign divorce, although in exceptional cases.
Significantly, Article 26, par.2 now includes cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree capacitating him or her to remarry. The Filipino spouse should likewise be permitted to remarry as if the other party were an alien at the time of solemnization of the marriage (Republic vs. Orbecido, GR 154380, 5 October 2005).
Article 26, par.2 may have raised some problems than it solves. A number of questions can be raised with respect to the operation of this provision, to wit:
1. Is there a need for a judicial decree in Philippine courts to declare the Filipino spouse qualified to remarry? The Family Code has no explicit provision to that effect, unlike in cases of void marriages and of a remarriage in case of absence of one of the spouses amounting to presumptive death (Art. 40 and 41, Family Code) where a court decree is required.
2. Is Art. 26, par. 2 applicable to foreign divorces obtained before the effectivity of the Family Code in view of Art. 256?
3. What if the Filipino spouse does not intend to remarry, what is the status of any children they may have after the divorce decree? Does the Filipino spouse have a right to demand support from his/her former alien spouse? What is his/her status with respect to his/her former foreign spouse? Can he/she claim share of property or income acquired by the former foreign spouse.
Moreover, I am of the moral view that the Orbecido doctrine is open to constitutional questions, viz:
1. Is the Orbecido ruling violative of the equal protection of the law clause of the Constitution as it favors only the rich, who may use or abuse the remedy of naturalization as foreign citizen and obtaining a valid foreign divorce and having it recognized in the Philippines in order to terminate his or her marriage with the Filipino spouse given the great difficulty in having a declaration of nullity and annulment of marriage granted at the appellate level of the court?
2. Is the Orbecido ruling tantamount to judicial legislation considering the fact that the Supreme Court has in effect amended Art 26, par. 2 of the Family Code, a substantive law? The OSG had posited that the issue was a matter of legislation and not of judicial legislation, a contention which was not addressed by the Supreme Court in its ruling. Would it not be much more orderly and customary if the Orbecido doctrine be cast in statutory form like the conflicting SC rulings namely People vs. Aragon, Wiegel vs. Sempio-Diy, and Yap vs. Paras, which were set in stone by Art. 40 of the Family Code?
Couplings and Un-Couplings in a Land Without Divorce
By Marivic Raquiza - 10/16/2001
URL: http://www.legmanila.com//aa/article/1016.asp
It's funny, but in a land with no divorce, Aida has married three times.
The first time was when she was 16. It was 1936, and Aida's parents had agreed with Delfin's well-to-do parents to wed their children, especially since Delfin, madly in love, wouldn't have it any other way.
Fast-forward to around the outbreak of the Filipino-Japanese war. Aida and Delfin had a son, Rudy. Delfin had, by then, a habit of frequenting nightclubs and seeking the company of other women. After endless quarrels, Aida and Delfin agreed to divorce as this was allowed under the Japanese occupation.
Upon her lawyer's advice, Aida did not ask for alimony to improve her chances of getting sole custody of their son, which she was eventually granted. She moved to Manila with her baby and allowed Delfin to take him out on weekends. One weekend, Delfin kidnapped the 3-year old Rudy and took him to the province. The next time Aida saw Rudy again was when he was 15, and had gone to Manila in search of her.
Aida, however, already had three other children by Ricky, who she had met through friends and who courted her intently. One night, after a party, he offered to take her home. She agreed. He took her to a motel instead and forced himself on her. It took Andrea, Aida's mother, to get Aida out of that motel room. But Aida became pregnant.
In her mind, and apparently everyone else's around her, to live with Ricky was the next logical step. They had two other children but didn't marry because Ricky could not hold down a steady job and continued to have dalliances with other women. Aida eventually agreed to marriage after she realized that she was denying her three children legitimacy.
Tony -- the lawyer who had assisted Aida in her first divorce -- became Aida's and Ricky's close friend. From the beginning, Tony, who was also married, was in love with Aida and when he saw she had become thoroughly disenchanted with Ricky, he courted her. For the first time in her life, Aida fell in love. They left their spouses, flew to California, and were wed by a judge.
They returned to the Philippines, lived together for 17 years, and had five children. They, however, also had a stormy relationship. Tony continued to see other women, and they eventually separated.
In 1994, after 24 years of separation, Aida and Tony were married by a judge in Manila, with their children as witnesses. Right after a celebratory lunch, Tony and Aida went to their separate homes. They married not because they loved each other, but because their legal spouses had died and they wanted to legitimize their children under Philippine laws.
Aida and Tony are my parents.
Now that the Senate Bill filed by Rodolfo Biazon and its counterpart House Bill filed by Bellaflor Angara Castillo, which push for the legalization of divorce, are being debated in congress, I find it all rather academic. The reality is, with or without a law, a significant number of Filipinos are forging unions, separating and forming new unions. My mother's story is simply a case in point.
According to Evalyn Ursua, former Executive Director of the Women's Legal Bureau, feminist lawyer and advocate of women and children's rights, the separation of couples is so common that many lawyers, in fact, have built their practice and earn lucrative incomes simply from handling cases involving the declaration of nullity of marriages. "People will separate regardless of what the law says," she avers, "when a marriage is over, it is over and no law can make it otherwise."
Atty. Ursua goes on to say that we, in fact, have a de facto divorce law in Article 36 of the Family Code. This provision states that a marriage can be voided if one of the contracting parties is psychologically incapacitated to perform the essential marital obligations, even if this incapacity surfaces only after the marriage is contracted. The Supreme Court has come up with guidelines on the interpretation of Article 36, but the law is subject to abuse because of the broad concept of psychological incapacity.
Atty. Ursua shares that some members of the Philippine Psychiatric Association have, in fact, expressed concern about how the field of psychiatry has been corrupted by the forensic requirements in Article 36 cases. According to her, the concept of psychological incapacity, as interpreted by the Supreme Court, doesn't exist in psychiatry, but psychiatrists are made to, and do use it, to nullify marriages. Little wonder then that some psychiatrists refer to Article 36 as the cottage industry of their colleagues.
Yet, according to Atty. Ursua, Art.36 has given a lot of people another chance at happiness as it is the only way in the Philippines to legally get out of a marriage. Although not many people can afford to go through Art. 36 proceedings (payment for both a lawyer and the psychiatric evaluation cost quite a sum), it has provided couples, particularly abused women, a remedy.
One basis for divorce as spelled out in the pending House Bill is repeated physical violence directed against the petitioner or the common child -- a relatively common occurrence, according to existing data.
Two organizations working with abused women -- Lihok-Pilipina and Combat-VAW (Violence Against Women) -- estimate that domestic violence affects 6 out of 10 women in the Philippines. A 1994 nationwide survey reports that 10% of interviewees had been physically harmed by someone close to them, while 3% were physically harmed while pregnant.
President Arroyo and Cardinal Sin, however, have strongly called for the rejection of the divorce bills, claiming them to be "un-Filipino, immoral, unconstitutional and a danger to the Filipino family."
The good Cardinal adds, "The strength of the nation is in the family. Destroy the family by a bill like divorce and all other values will come crumbling down ... Divorce will bring more spiritually impoverished children because their spiritually impoverished parents do not like to keep their marital commitments."
Atty. Ursua has a different take. She says, "I believe the harm on children is even worse when two people are at each others' throats, obviously very unhappy, but stick together for the sake of the institution of marriage. I believe they can be better parents if they confront their issues -- especially if these seem to be irreconcilable. But good parenting should not stop with marital separation or divorce. In fact, it can even be enhanced."
On the charge that divorce is un-Filipino, Rep. Castillo has pointed out that divorce has historical precedence and has been practiced by various ancestral tribes in the Philippines such as the Tagbanwas of Palawan, the Gadangs of Nueva Vizcaya, the Sagadas and Igorots of the Cordilleras, the Manobos, Blaans, and Muslims of the Visayas and Mindanao. .
Atty. Ursua also pursues this point and argues, "In a position paper drafted on this issue, we talked about unequal protection before the law. Muslims have divorce under the Muslim Code of Personal Laws but we non-Muslims don't. If the Philippines is a secular, pluralist state, why is it that it recognizes and protects the beliefs of Muslims but imposes a single religious standard on non-Muslims?"
"I think the problem with the Philippine government is that it forgets that we are no longer under the reign of the Pope via the Spanish crown," she continues. "It insists that it remain the guardians of our souls although stated in political terms. The government should leave the moralizing to the church and objectively address the reality of marriages breaking up, of countless Filipinos having families outside of marriages, and all the social issues related to this phenomenon."
Toinette, daughter of my mother, seemed to have imbibed the reality of separation of couples only too well. Growing up in a tight network of families where brothers and sisters have different parents, Toinette decided that, in spite of the fact that she married a good man, marriage for her can only happen in a context where divorce is possible. Thus, she married in the United States.
Toinette and her husband, who have no children, have managed a cross-Atlantic marriage for the last ten years -- he based in the States, she in the Philippines -- with a lot of visits for each of them in between. But they are both proud of their marriage. "I think my marriage is one example that, despite the option of divorce, if two people love each other and are responsible enough to commit, they stay together, " she says.
Aida, who has raised ten children and has outlived all her three husbands, is now 79. A devout Catholic, she has this to say, "Divorce should be allowed in the Philippines because it gives all of us another chance at happiness without sacrificing the legitimacy of our children."
When asked how she reconciles this belief with the contrary stand of the Catholic Church, she says, "I believe that our God is a very understanding and loving one. He wouldn't wish unhappiness on any one of us. If you have been abused, why stay in a marriage?"
Knowing whereof she speaks, how can anyone argue with that?
URL: http://www.legmanila.com//aa/article/1016.asp
It's funny, but in a land with no divorce, Aida has married three times.
The first time was when she was 16. It was 1936, and Aida's parents had agreed with Delfin's well-to-do parents to wed their children, especially since Delfin, madly in love, wouldn't have it any other way.
Fast-forward to around the outbreak of the Filipino-Japanese war. Aida and Delfin had a son, Rudy. Delfin had, by then, a habit of frequenting nightclubs and seeking the company of other women. After endless quarrels, Aida and Delfin agreed to divorce as this was allowed under the Japanese occupation.
Upon her lawyer's advice, Aida did not ask for alimony to improve her chances of getting sole custody of their son, which she was eventually granted. She moved to Manila with her baby and allowed Delfin to take him out on weekends. One weekend, Delfin kidnapped the 3-year old Rudy and took him to the province. The next time Aida saw Rudy again was when he was 15, and had gone to Manila in search of her.
Aida, however, already had three other children by Ricky, who she had met through friends and who courted her intently. One night, after a party, he offered to take her home. She agreed. He took her to a motel instead and forced himself on her. It took Andrea, Aida's mother, to get Aida out of that motel room. But Aida became pregnant.
In her mind, and apparently everyone else's around her, to live with Ricky was the next logical step. They had two other children but didn't marry because Ricky could not hold down a steady job and continued to have dalliances with other women. Aida eventually agreed to marriage after she realized that she was denying her three children legitimacy.
Tony -- the lawyer who had assisted Aida in her first divorce -- became Aida's and Ricky's close friend. From the beginning, Tony, who was also married, was in love with Aida and when he saw she had become thoroughly disenchanted with Ricky, he courted her. For the first time in her life, Aida fell in love. They left their spouses, flew to California, and were wed by a judge.
They returned to the Philippines, lived together for 17 years, and had five children. They, however, also had a stormy relationship. Tony continued to see other women, and they eventually separated.
In 1994, after 24 years of separation, Aida and Tony were married by a judge in Manila, with their children as witnesses. Right after a celebratory lunch, Tony and Aida went to their separate homes. They married not because they loved each other, but because their legal spouses had died and they wanted to legitimize their children under Philippine laws.
Aida and Tony are my parents.
Now that the Senate Bill filed by Rodolfo Biazon and its counterpart House Bill filed by Bellaflor Angara Castillo, which push for the legalization of divorce, are being debated in congress, I find it all rather academic. The reality is, with or without a law, a significant number of Filipinos are forging unions, separating and forming new unions. My mother's story is simply a case in point.
According to Evalyn Ursua, former Executive Director of the Women's Legal Bureau, feminist lawyer and advocate of women and children's rights, the separation of couples is so common that many lawyers, in fact, have built their practice and earn lucrative incomes simply from handling cases involving the declaration of nullity of marriages. "People will separate regardless of what the law says," she avers, "when a marriage is over, it is over and no law can make it otherwise."
Atty. Ursua goes on to say that we, in fact, have a de facto divorce law in Article 36 of the Family Code. This provision states that a marriage can be voided if one of the contracting parties is psychologically incapacitated to perform the essential marital obligations, even if this incapacity surfaces only after the marriage is contracted. The Supreme Court has come up with guidelines on the interpretation of Article 36, but the law is subject to abuse because of the broad concept of psychological incapacity.
Atty. Ursua shares that some members of the Philippine Psychiatric Association have, in fact, expressed concern about how the field of psychiatry has been corrupted by the forensic requirements in Article 36 cases. According to her, the concept of psychological incapacity, as interpreted by the Supreme Court, doesn't exist in psychiatry, but psychiatrists are made to, and do use it, to nullify marriages. Little wonder then that some psychiatrists refer to Article 36 as the cottage industry of their colleagues.
Yet, according to Atty. Ursua, Art.36 has given a lot of people another chance at happiness as it is the only way in the Philippines to legally get out of a marriage. Although not many people can afford to go through Art. 36 proceedings (payment for both a lawyer and the psychiatric evaluation cost quite a sum), it has provided couples, particularly abused women, a remedy.
One basis for divorce as spelled out in the pending House Bill is repeated physical violence directed against the petitioner or the common child -- a relatively common occurrence, according to existing data.
Two organizations working with abused women -- Lihok-Pilipina and Combat-VAW (Violence Against Women) -- estimate that domestic violence affects 6 out of 10 women in the Philippines. A 1994 nationwide survey reports that 10% of interviewees had been physically harmed by someone close to them, while 3% were physically harmed while pregnant.
President Arroyo and Cardinal Sin, however, have strongly called for the rejection of the divorce bills, claiming them to be "un-Filipino, immoral, unconstitutional and a danger to the Filipino family."
The good Cardinal adds, "The strength of the nation is in the family. Destroy the family by a bill like divorce and all other values will come crumbling down ... Divorce will bring more spiritually impoverished children because their spiritually impoverished parents do not like to keep their marital commitments."
Atty. Ursua has a different take. She says, "I believe the harm on children is even worse when two people are at each others' throats, obviously very unhappy, but stick together for the sake of the institution of marriage. I believe they can be better parents if they confront their issues -- especially if these seem to be irreconcilable. But good parenting should not stop with marital separation or divorce. In fact, it can even be enhanced."
On the charge that divorce is un-Filipino, Rep. Castillo has pointed out that divorce has historical precedence and has been practiced by various ancestral tribes in the Philippines such as the Tagbanwas of Palawan, the Gadangs of Nueva Vizcaya, the Sagadas and Igorots of the Cordilleras, the Manobos, Blaans, and Muslims of the Visayas and Mindanao. .
Atty. Ursua also pursues this point and argues, "In a position paper drafted on this issue, we talked about unequal protection before the law. Muslims have divorce under the Muslim Code of Personal Laws but we non-Muslims don't. If the Philippines is a secular, pluralist state, why is it that it recognizes and protects the beliefs of Muslims but imposes a single religious standard on non-Muslims?"
"I think the problem with the Philippine government is that it forgets that we are no longer under the reign of the Pope via the Spanish crown," she continues. "It insists that it remain the guardians of our souls although stated in political terms. The government should leave the moralizing to the church and objectively address the reality of marriages breaking up, of countless Filipinos having families outside of marriages, and all the social issues related to this phenomenon."
Toinette, daughter of my mother, seemed to have imbibed the reality of separation of couples only too well. Growing up in a tight network of families where brothers and sisters have different parents, Toinette decided that, in spite of the fact that she married a good man, marriage for her can only happen in a context where divorce is possible. Thus, she married in the United States.
Toinette and her husband, who have no children, have managed a cross-Atlantic marriage for the last ten years -- he based in the States, she in the Philippines -- with a lot of visits for each of them in between. But they are both proud of their marriage. "I think my marriage is one example that, despite the option of divorce, if two people love each other and are responsible enough to commit, they stay together, " she says.
Aida, who has raised ten children and has outlived all her three husbands, is now 79. A devout Catholic, she has this to say, "Divorce should be allowed in the Philippines because it gives all of us another chance at happiness without sacrificing the legitimacy of our children."
When asked how she reconciles this belief with the contrary stand of the Catholic Church, she says, "I believe that our God is a very understanding and loving one. He wouldn't wish unhappiness on any one of us. If you have been abused, why stay in a marriage?"
Knowing whereof she speaks, how can anyone argue with that?
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