Legal Mind At Work

Till Death Do Us Part…no more???!!!! (legal view on the proposed 10-year Marriage Expiration)

2010-01-12T18:20:00.000-08:00

I was reading the morning papers when I read across the alleged proposal of 1-Ako Babaeng Astig Aasenso (1-ABAA) party list for the legislation of 10-year expiration on marriages. The proponents were reported to have said “a 10-year expiration on marriages would give couples the opportunity to review their relationship, and decide whether to continue or not with the union.”

Pasensiya na po sa mga proponents nitong legislation na ito, pero ako po ay talagang natawa. I thought, they were referring to the expiration of the marriage license. Ngayon kasi, you have 60 days to set the date of the wedding from the time you secured the marriage license. When I continued reading, I was dumbfounded when I realized that they are actually referring to the actual marriage. Ibig sabihin, ‘till death do us part but only if mamamatay ka within the ten years that we are together.’

The group’s main advocacy is “to help women become economically empowered by helping them become entrepreneurs, giving them better employment, providing sources of livelihood, access to capital, and other ways to make women financially independent.” The advocacy, yes, is admirable.

Generally, I am 100% pro women liberation and all that. Almost 80% of the petitioners in annulment cases in the Philippines are women. Ibig sabihin, usually mga babae ang gustong kumalag sa tanikala ng matrimonyo. Ngayon nga, I have five (5) annulment cases, puro babae ang kliyente ko. Being a woman myself, I know that if only my clients had a choice, they would want a whole and a happy family. Kaya lang, minsan you make a wrong decision. Either mali ang taong napili mo, nataon na talagang iresponsable, sakit ng ulo, nanakit, nambabae o di kaya ay nanlalalaki (may pagka Bebe Gandanghari bah), an annulment is the best option. However, annulment for me, should be the last recourse.

If this 10-year expiration would really liberate free women from the imagined chains which we would like to think, a loveless marriage, then I’m all for it..However, as marriage and whatever is happening behind it is as subjective to each ad every couple, I am 100% sure this proposal, if ever it will become a law, will cause further social injury than the current phenomena now.

Gaya nga ng sabi ng CBCP, this proposal is “some kind of desperate approach to right a wrong by something wrong.”

I’d say, if those who propose temporary marriage are really serious about their proposal, they should think of its consequences…Ano kaya ang magiging sitwasyon kung itong batas na ito ay maipatutupad???

In my mind, the most serious concerns is the emotional trauma on the children whose parents separate. I am sure to those who are products of a broken family will agree with me. More children will be “galit sa mundo”, just like one person I kow…hehehhe.. This proposal will deprive the children the opportunity for a stable family life. Ang tinitingnan kasi ng batas na ito at ang convenience ng mag-asawa, eh, paano na ang mga bata?

Besides, this will produce a lot more children and result into population explosion. Imagine a man who gets married at age 20 and decides not to renew his marriage with his wife can go on and on until he marries his sixth wife at age 70. Eh di, kadaming anak na nun…

Personally though, I know nothing will come out with this proposal. First, it is against the Constitution. Anything that goes against the Constitution will be held unconstitutional, thus invalid. The 1987 Constitution specifically espoused the family being the building block of society.

Marriage, as defined by our 1987 Constitution and as reiterated in Article I of the Family Code, marriage is a special contract of permanent union between man and woman which is entered into in accordance with law. Because marriage is the foundation of the family and an inviolable social institution whose nature, consequences and incidents are governed by law and not subject to stipulation except for marriage settlements that fix the property relations between the parties, it is the interest of the State to preserve and protect the sanctity of all marriages contracted unless it is clear from the proofs presented that the marriage is by some formal or substantive infirmity.

If this happens, Philippine society will become chaotic, more street children and more social problems.

I really think nagsasayang lang ng laway ang mga proponents nitong batas na ito, divorce nga hindi mapag usapan, ito pa??!!

REBELLION and MARTIAL LAW???!!! Oh, really PGMA???!!

2009-12-09T21:31:00.000-08:00

The 57 victims lay in the dirt as they were shot one by one either in the mouth, chest or head, with Andal Ampatuan Jr. delivering the coup de grâce from his baby Armalite to make sure they were all dead.

But the women victims appeared to have suffered a more ghastly death, having been shot in the genitals and their vital parts chopped off by their killers.

These were the gory details disclosed Wednesday by the Philippine National Police of how Ampatuan Jr., a member of the all-powerful Maguindanao political clan, allegedly carried out the grisly Nov. 23 massacre in Maguindanao, based on the accounts of a civilian volunteer and a police officer who claimed to have witnessed the killings.

Ampatuan Jr., the mayor of Datu Unsay town, is the prime suspect in the massacre in Ampatuan town, the worst election-related violence yet in Philippine history.

“When he found that some were still alive, Andal Jr. would come close and shoot them again. He was reportedly checking on every one,” Senior Supt. Ericson Velasquez, the chief investigator of the Criminal Investigation and Detection Group told a press briefing Wednesday.

Police has so far identified 161 suspects in the massacre.

Of the figure, 100 are paramilitary members who have been positively identified by witnesses and are already being hunted down by the police and the military, he said.

Majority of these suspects were part of the private security force of Ampatuan in Datu Unsay town, said Verzosa.

Sixty-eight are civilian volunteers of the police and the military operating in Datu Unsay; 17 in Shariff Aguak; 11 in Mamasapano; three in Datu Saudi and one in Sangki, he added.

“Reportedly, some of them have already joined the rebellious forces conducting rebellion in Maguindanao,” Verzosa said.

Aside from the mayor, Dicay identified Bahnarin Ampatuan, Sukarno Badal, Ulo Ampatuan, Muhamad Sangki and Tami Masukat as among those who were at the checkpoint when the Mangudadatu convoy was stopped.

Ebus also identified Ipi Ampatuan, Harris Ampatuan, Moning Ampatuan, nine police officers, four Army sergeants and a master sergeant as among those present, said Velasquez.

Now, the Department of Justice Wednesday filed rebellion charges against seven members of the powerful Ampatuan family and in connection with the Nov. 23 massacre of 57 people in Maguindanao province.

The DoJ said the filing of the rebellion charges was prompted by the Ampatuans’ efforts to assemble their armed followers and organize assemblies to commit rebellion.

Rebellion being a political offense, the government should explain the Ampatuans’ supposed ideological motive. They face criminal charges for the slaughter of 57 people, 30 of them journalists, in a clan war. Those charges will be absorbed into a rebellion case.

But the Ampatuans were not rebelling; they were appealing to their ally President Arroyo for help. Malacañang might have obliged, if not for the international outcry. Even as the body count in the massacre rose from the initial 12, deputy presidential spokesperson Lorelei Fajardo famously said the massacre was no reason for the President to end her friendship with the Ampatuans.

Criticized for coddling the clan, the President decided to declare martial law, but she needed a reason. It was either an invasion or rebellion, and the first premise was out of the question. Initially described as “looming,” the rebellion is now supposed to be active though unseen, which should worry the nation, since any law-abiding citizen can now be accused of fomenting rebellion in secret.

Martial law was not needed by the government to arrest the Ampatuans and their supporters, or search their homes and seize their weapons. And even under martial law, the Constitution is not suspended. This means court orders are still needed for such searches and seizures, with representatives of the suspects present. Any evidence seized illegally is inadmissible in court. An inventory of all items seized must be made; is anyone keeping an accurate list? Were election paraphernalia seized?

The overriding concern after the massacre is to give the victims justice. This includes not just arresting the Ampatuans and dismantling their private army — it’s not a rebel group — but also ensuring that the cases will prosper and the guilty will be punished.

It must be pointed out that by law, ordinary crimes such as rape and murder committed in pursuit of rebellion must be absorbed into a rebellion case. Without a genuine rebellion, the case will be thrown out, the Ampatuans will be acquitted, and the 57 victims will get no justice.

Perhaps this is the whole point of imposing martial law.

Step by Step process for correction of entry in your birth certificate

2009-11-25T18:11:00.000-08:00

TEN Steps to be undertaken in the correction of an entry in a civil registry document

Contact a lawyer who will prepare the Petition for correction of entry
Lawyers shall file the Petition in the Regional Trial Court. The fee for filing the Petition in the Regional Trial Court is P510.00
The Petition will be raffled and assigned to a branch of the Regional Trial Court.
The assigned Regional Trial Court shall issue an Order for the publication of its Order in a newspaper of general circulation for three consecutive weeks. Fee for publication varies. For innocuous errors, posting of the order of the court may be resorted to instead of publication as provided in Anzaldo vs. Republic, 102 Phil. 1046 that where the entry sought to be corrected is merely innocuous or clerical error such as misspelling or the like, a summary proceeding may be resorted as contemplated in and authorized by Article 412 of the Civil Code, which errors are visible to the eye or obvious to the understanding (Chua Wee vs. Republic, L-27731, April 21, 1971; Vda de Castro vs. Republic, L-28520, January 17, 1985).
The Order contains the date of the first hearing.
During the first hearing, the lawyer will present compliance of the jurisdictional requirements like publication of the Order in a newspaper of general circulation, posting etc
After establishing compliance with jurisdictional requirements, the petitioner will be presented in Court to testify. The Court may assign the Clerk of Court to receive evidence in an ex parte proceeding. Payment for an ex-parte is Php 1000.00.
During the hearing, it is possible that an oppositor may appear contesting the Petition. If no oppositor appears, the Clerk of Court will receive the petitioner's evidence. After presentation of evidence, your lawyer will formally offer your documentary exhibits.
After which, the Court will rule on the Petition.
If the decision is favorable, the Court will order the Office of City Registrar to correct the entry in the civil registry document (birth/marriage/death certificate of the petitioner). Finality of judgment, however, takes place 30 days from date of judgment. Coordinate with the Civil Registrar on how to effectuate the correction in the National Statistics Office.

Is the petition for decalaration of presumptive death better than annulment?

2009-11-25T18:03:00.000-08:00

The Family Code clearly provides that a court declaration of presumptive death of a spouse is indispensable before the other spouse may marry again. Failure to comply with this requirement results not only in a void second marriage, but also opens the guilty spouse to a criminal charge of bigamy. Article 41 of the Family Code reads:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

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

In other words, an absence of 4 years, it being unknown whether the other spouse is still alive and the present spouse has a well-founded belief that the missing spouse is already dead, is a ground to ask the court for a declaration of presumptive death (this is a summary proceeding, not a special proceeding). The 4-year period, however, is reduced to 2 years in the following circumstances:

1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for [two] years since the loss of the vessel or aeroplane.

2. A person in the armed forces who has taken part in a war, and has been missing for [two] years.

3. A person who has been in danger of death under other circumstances and his existence has not been known for [two] years.

There are 4 requisites for the declaration of presumptive death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code.

2. That the present spouse wishes to remarry.

3. That the present spouse has a well-founded belief that the absentee is dead.

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

As mentioned above, failure to seek a judicial declaration of presumptive death opens a party who contracts a second marriage to a charge of bigamy. The reason is this -

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, “men readily believe what they wish to be true,” is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals. Only with such proof can marriage be treated as so dissolved as to permit second marriages. Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance, namely, a judgment of the presumptive death of the absent spouse.

To be sure, this appears to be a relatively easier way of contracting another marriage. The problem, however, is that the second marriage is easily voided by the appearance of the “absentee” spouse (void ab initio or void from the beginning if both parties to the second marriage contracted the marriage in “bad faith”). The Family Code provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

So, is a judicial declaration of presumptive death better than seeking an annulment or a declaration of nullity of the second marriage? There are no hard and fast rules. Suffice it to state that “the automatic termination of the second marriage upon the reappearance of the absent or missing spouse is a risk that the paties to said marriage knew they were taking when they entered into such marriage, so that if it does happen, they have no reason to complain” (Justice Alicia Sempio-Diy, Handbook on the Family Code of the Philippines).

marriage void ab initio, grounds

2009-11-25T18:00:00.000-08:00

DECLARATION OF NULLITY OF MARRIAGE

A petition to declare the marriage void presupposes that the marriage was void or invalid from the beginning. Legally, it can be said that the marriage did not even exist. But there are so many questions about this issue like, do you need to file the Petition if your marriage did not even exist from the beginning? The answers that you have been looking for can be found below.

Q. What are the grounds to declare the marriage void?

A: The grounds to declare the marriage void are as follows:

1. Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

2. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

3. Those solemnized without license unless exempted by law.

4. Those bigamous or polygamous marriages.

5. Those contracted through mistake of one contracting party as to the identity of the other;

6. Assuming that you caused the annulment of your first marriage. However, you get married immediately without waiting for issuance of the Final Decree of Annulment. Your second marriage can also be voided by the Court.

7. Psychological Incapacity of the husband or wife, existing at the time of marriage, which prevents him or her from complying with the essential marital obligations of marriage, even if such incapacity becomes manifest only after the solemnization of the marriage.

8. Incestuous Marriages (between ascendants and descendants; between brothers and sisters whether full or half blood).

9. Marriages between relatives:

a. between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;

b. between step-parents and step-children;

c. between parents-in-law and children-in-law;

d. between the adopting parent and the adopted child;

e. between the surviving spouse of the adopting parent and the adopted child;

f. between the surviving spouse of the adopted child and the adopter;

g. between an adopted child and and a legitimate child of the adopter;

h. between adopted children of the same adopter;

i. between parties where one, with the intention to marry the other, killed the other person's spouse, or his or her own spouse.

Q. I just found out that my husband was married before and I have obtained a marriage contract from the NSO to prove this. It was also confirmed when I confronted my husband about this. Do I still have to file a Petition? Can I also file a criminal case against my husband? Can his ex-wife file a criminal case against me? What is my defense, if any?

A: Although your marriage was void from beginning, the law still requires you to obtain a declaration of absolute nullity of your marriage by filing a petition in court. Yes, you can also file a criminal case for Bigamy against your husband. Yes, his ex-wife may file a criminal case for bigamy against you and your husband. But your defense is lack or absence of knowledge regarding his prior marriage or absence of criminal intent.

Q. What happens if I will get married without having my first marriage declared void?

A: Your second marriage will be invalid for being bigamous. The sad thing is, you will be facing another criminal case for bigamy

in so far as your second marriage is concerned.

Q. Is there a time limit for me to file a Petition to declare the marriage void?

A: The action to declare the marriage void shall not prescribe. Meaning, you can file the petition anytime during your lifetime.

Q. My lawyer told me that my second marriage was void from the beginning. I totally disagreed because the Court has already issued a Decision declaring my first marriage void from the beginning. I also showed him the Court Decision and an Entry of Judgment from the same Court. But my lawyer still insists that my second marriage was void because I failed to obtain a final decree of annulment from the Court? Is my lawyer correct?

A: Yes, your lawyer is correct. It appears that you have not completed the process before you can validly contract a second marriage. You should have brought the Court Decision and Entry of Judgment for recording at the Local Civil Registrar where your first marriage was recorded. After the recording, you should have gone back to the Court to show proof that the Court documents were already recorded in the Local Civil Registrar. The Court will then issue a Final Decree of Annulment. Since you failed to follow this process, your second marriage is void.

Marriage License

2009-11-25T17:59:00.000-08:00

ISSUES ABOUT MARRIAGE LICENSE

Q. My girlfriend and I are planning to get married this June. But we have been living together as husband and wife for almost six (6) years now. Both of us are still single. I have heard that we do not need to apply for a marriage license. Is this correct?

A: Yes, you are correct. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. But you and your girlfriend are required to execute an affidavit stating the fact of your situation and submit it to the local civil registrar.

Q. I already had a falling out with my husband. Our marriage contract so states that we were issued a marriage license. I know for a fact that we did not apply for a marriage license. I also verified the marriage license number at the Local Civil Registrar of Manila if it was issued to us. But the local civil registrar of Manila told me that there is no such thing. Can I file Petition to declare my marriage void on this ground alone?

A: Yes, lack or absence of a marriage license is ground to declare the marriage void. You can request the Local Civil Registrar of Manila for the issuance of a Certification that you have not been issued a marriage license. You will need this document in Court as your evidence.

Psychological Incapacity

2009-11-25T17:58:00.000-08:00

ISSUES ABOUT PSYCHOLOGICAL INCAPACITY

Article 36 of the Family Code states that "A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. This means that the husband or the wife is psychologically incapable of complying with the essential marital obligations, which will render the marriage void from the beginning. It is important that this incapacity was already present during the celebration of marriage.

Q. I have been hearing about the term psychological incapacity. Please explain to me what is "psychological incapacity" as a ground to declare the marriage void?

A: " Simply put, psychological incapacity" is a serious psychological disorder, but not necessarily insanity, that causes a spouse or both spouses to be truly incapable of complying with the essential marital obligations. This psychological condition must already exist at the time the marriage is celebrated.

Q. What are these essential marital obligations?

A: These are the obligations of the husband and wife (1) to live together, observe mutual love, respect and fidelity, and render mutual help and support; (2) to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage; (3) to jointly support the family (Art. 70), for the spouses are joint administrators in the partnership; and (4) Not to commit acts which will bring danger, dishonor or injury to each other or to the family (Art. 72), for the safety and security of the family at all times is a primordial duty of the spouses

Q. Can you tell me in simple terms what are the manifestations of psychological incapacity?

A: The following are some of the manifestations of psychological incapacity or narcissistic, anti-social personality disorder, to name a few:

1. By the refusal of one spouse to live, dwell and cohabit with the other after marriage, without any fault at all from the aggrieved spouse.

2. By the deliberate refusal to give support to the other spouse, or their common children

3. When marriage is unbearable due to the compulsive gambling, alcoholism, drug addiction or violent tantrums and jealousy leading to physical abuse towards the other and of the children of the respondent spouse

Q. My wife has a serious sexual libido or promiscuity problem. To my knowledge, she had slept with three men other than me during our marriage. I have almost killed a guy because of her sexual escapades. But despite this, I still accepted her due to my love and desire to keep the marriage intact. But it came to a point that I cannot take her philandering anymore. Please help me file a Petition to annul our marriage preferably due to her own psychological incapacity.

A: We truly understand and sympathize with your feelings regarding your situation. However, sexual promiscuity or sexual infidelity of the spouse is not an example of psychological incapacity contemplated by law. The Supreme Court has recently decided a case about this issue (Please see decision Dedel vs. CA January 29, 2005). We suggest that you submit yourself for psychological examination. Based on the information that you will supply to the Psychologist, there may be some other grounds that can be used to declare your marriage void.

Annulment based on psychological incapacity, how to prove it

2009-11-25T17:55:00.000-08:00

COURT PROCEDURE AND EVIDENCE TO PROVE PSYCHOLOGICAL INCAPACITY

March 15, 2003 is the date of effectivity of the New Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages promulgated by the Supreme Court.

Q. Do I need a psychological report before I could file a petition for annulment?

A: No. Generally, a psychological report is not required before you could file the petition to declare your marriage void. It is also specified under the New Rule that an expert opinion is not required to be alleged in the Petition.

Q. If I am the one filing the Petition, do I still need to take a psychological test?

A: Yes, you have to take the test because the psychological report is the very foundation of your Petition. In the psychological test, our resident psychologist will determine the psychological incapacities of your husband or even your own incapacities. We usually recommend that you take the test prior to the filing of the Petition.

Q. I am planning to file an annulment case on the ground of the psychological incapacity of my husband. The lawyer that I have contacted over there told me that I can already receive the decision after five (5) to eight (8) months. But I don't remember him mentioning about psychological report. Do I have reason to be suspicious?

A: Every lawyer has its own style in handling the case. We are not at liberty to comment about it. But for your information, the Supreme Court has already set guidelines in proving a case for a petition for nullity of marriage on the ground of psychological incapacity.

These guidelines are as follows, to wit:

1. The burden of proof to show nullity of the marriage belongs to the plaintiff and any doubt must be resolved in favor of the existence of marriage and against its nullity.

2. 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 decision

3. Incapacity must be proven to be existing at the time of the celebration of the marriage, although the manifestation need not be perceivable at such time.

4. Such incapacity must also be shown to be medically or clinically permanent or incurable, although the incurability may be relative only in regard to the other spouse, not necessarily absolute against everyone of the same sex. Furthermore, the incapacity must be relevant to the assumption of marriage obligations, not to those not related to marriage like the exercise of profession or employment in a job.

5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

6. The essential marital obligations must be those embraced by Articles 68 to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same code in regards to parents and their children. Such non-compliance must also be stated in the petition, proven by evidence, and included in the text of the decision.

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

8. The trial court must order the fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court.

Obviously, an annulment case cannot be concluded in the five (5) to eight (8) months and without the psychological report if Courts will follow the guidelines.

Q. I was informed that my annulment case would take longer if the Solicitor General's Office will appeal the RTC Court decision to the Court of Appeals. How true is this?

A: Yes, your annulment case would take longer than what is expected. The good news is, appeal by the Solicitor General to the Court of Appeals is not anymore mandatory under the New Rule. But sometimes, the Solicitor General would make an Appeal to the Court of Appeals if it feels that the proceedings in the RTC Court was patently erroneous. We would like to take this opportunity to express our opinion that an annulment case is not a walk in the park. We already heard so many nightmare stories about Petitions being denied by the Court of Appeals. We would like to tell litigants to concentrate on strengthening their cases rather than entertaining any idea of approaching the prosecutors or judges to expedite the process of their annulment.

Q. How long does it take to get my marriage annulled?

A: For uncontested petitions, the estimated processing time of the annulment petition is one year and six months to two years depending on the availability of witnesses and the court's trial dates. The case would take longer if the Petition is contested, meaning the other spouse is interposing an opposition. Custody of children and property issues are also known factors that cause delay. There are also factors outside of our control that cause delay like unexpected postponements of trial due to sickness of the judge or the prosecutor; retirement of the judge or postponements due to inclement weather.

Q. Am I required to appear in every Court hearing?

A: No, you are not. As petitioner, you are only required to appear during the pre-trial conference and during your scheduled testimony in Court.

Q. How many witnesses do we need to present in Court in order to prove my case?

A: We need to present you as our principal witness, the psychologist/psychiatrist as expert witness to prove the psychological incapacity; one or two more witnesses who have personal knowledge of your marital relations and who can affirm your story.

Q. My husband and I are planning to file the petition jointly. Will this help expedite my case?

A: Your case will be dismissed by the Court. The New Rule says that the petition can only be filed solely by the husband or the wife. Besides, this is a clear evidence of "collusion" or agreement of the spouses to annul their marriage, which is a ground to dismiss the petition.

Q. The public prosecutor summoned me to appear for investigation regarding the annulment case which I filed earlier? What is this investigation all about? Can I just send my lawyer instead?

A: This investigation is usually conducted by the prosecutor to find out if there was an agreement or "collusion" between the spouses to annul their marriage. This happens especially in uncontested petitions when the respondent spouse did not submit his/her Answer to the petition despite receipt of the Court Summons.If you are in the country, I suggest that you attend the investigation together with your lawyer. During our early years of practicing Family Law, we have had an experience that the prosecutor submitted a Certification of the Presence of Collusion between the parties because our client, the petitioner, failed to attend in the investigation.The Certification was only withdrawn by the public prosecutor when our client appeared. However, prosecutors are very considerate if you can give a valid excuse for not attending the investigation.

Annulment for OFW's

2009-11-25T17:52:00.000-08:00

What if you want to file a petition for annulment and yet you are working abroad, here are the frequently asked questions that will answer that query, to wit:

SOLUTIONS FOR PETITIONERS WORKING OVERSEAS

Q. I am planning to file an annulment case but I would like to know if my marriage was recorded. How will I do this?

A: You can check with the Local Civil Registrar of the place where where your marriage was solemnized. You can also go directly to the NSO at Gusa, Cagayan de Oro City.

Q. Can I file the Petition for Annulment of Marriage even if I am working or residing overseas?

A: Yes. The New Rule allows a Petitioner who is currently residing overseas to file the Petition in the Philippines.

Q. If this is so, how do I file the Petition?

A: As your lawyer in the Philippines, we will send you a copy of the Petition by e-mail. You can download the Petition in word format and print copies and sign it afterwards. After signing the Petition, you have to have this notarized and authenticated at the nearest Philippine Embassy in your area. After the Petition has been authenticated, send it back to us preferably by courier for filing with the court.

Q. Where do we file the Petition?

A: The petition shall be filed in the Family Court of the province or city where you or your spouse has been residing for at least six (6) months prior to the date of filing of the Petition, or in the case of a non-resident respondent-spouse, where he/she may be found in the Philippines. But you still have the option to file it at the place of your residence.

Q. What if my husband is outside the country or cannot be found in the Philippines. How do we go about it?

A: Your Petition needs to be published in the newspaper of general circulation once a week for three consecutive weeks. This is necessary so that the Court can acquire jurisdiction over the person of your husband and the petition can proceed even in his absence.

Q. Do I need to come home to attend the trial?

A: Yes, you have to come home to attend the trial especially during the pre-trial conference. Your Petition will be dismissed if you fail to attend the pre-trial conference. However, your non-appearance during pre-trial conference will be excused if you can give a valid reason like sickness.

Q. What are the stages of the trial where my presence in Court is necessary?

A: Your presence in court is absolutely necessary during pre-trial conference and during the time when you have to give your oral testimony. So it appears that you have to appear in Court at least twice.

Q. It is very difficult for me to leave my work, not to mention that it is also too expensive to come home just to attend the hearing on my Petition. Is there a way for me not to attend the trial?

A: None. You have to attend the trial. But we can try to schedule your testimony immediately after the pre-trial conference. This will minimize your travel expenses because you only have to come to the Philippines at least once.

Q. If I am the one filing the Petition, do I still need to take a psychological test?

A: Yes, you have to take the test because the psychological report is the very foundation of your Petition. In the psychological test, our resident psychologist will determine the psychological incapacities of your husband or as the case may be, your psychological incapacities. We usually recommend that you take the test prior to the filing of the Petition.

Q. Do I need to come home just to take the psychological test?

A: No.You need not come home to take the test. For purpose of filing the Petition, our resident psychologist will take your psychological testing on-line or through the internet. You will undergo a confirmatory test when you are already here.

Q. Is there a guarantee that my marriage will be annulled if I file the Petition?

A: No, there is no guarantee. The success of your Petition will always depend on the strength of evidence that we will present in Court.Â

Q. Are there any other concerns that I have to consider?

A: You have to further consider the custody and support of your children and separation of your absolute community properties, if any.

Q. Can I file a divorce case here in the U.S.?

A: Yes, you can but it will not be valid here in the Philippines. Our laws do not recognize foreign divorce instituted by Filipino citizens. You still have to file an annulment case before Philippine courts to annul your marriage.

Q. I am an American citizen. I have an existing marriage with a Filipina in the Philippines. I wanted to end the marriage already. Do I need to file a Petition for Annulment before Philippine Courts?

A: No need to file the case. You can file a Divorce in the U.S. instead. The Divorce decree will also be recognized in the Philippines allowing your Filipina wife to re-marry. The pertinent law is Article 26 of the Family Code.

Questions After the Issuance of the Decree of Annulment

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ISSUES AFTER THE ISSUANCE OF ANNULMENT DECISION

Q. Am I allowed to get married immediately after issuance of the Court Decision on my annulment case?

A: Not too fast. The Law says that you have to wait for the issuance of the Decree of Annulment. Otherwise, your second married is also invalid.

Q. The Court has already issued a Finality of Judgment on my Annulment case. Apparently, the Solicitor General did not file an Appeal to the Court of Appeals anymore. Can I get married already? How do I get the Decree of Annulment?

A: Not yet. The New Rule says that you have to register the Entry of Judgment in the Local Civil Registrar of the place where your marriage was solemnized and in the Local Civil Registrar of the Place where the RTC Court which issued the Entry of Judgment is located. If you can show proof to the RTC Court the that registration of the Entry of Judgment in the Local Civil Registrar has been done, it will issue you a Decree of Annulment.

Q. My lawyer told me that before I can get married again, I also need to show proof to the RTC Court that our common properties mentioned in the Decision have been transferred in the name of our children. Is this true?

A: Yes, your lawyer is correct. The law says that partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property. Otherwise, your second marriage is also void.

Q. What are the effects of the annulment of my marriage in so far as our common properties, inheritance, and children are concerned?

A: The effects are as follows:

1. Children conceived or born before the issuance of the Entry of Judgment shall be considered legitimate.

2. The spouse who contracted the marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor:

a. of the common children; or
b. if there are none, the children of the guilty spouse by a previous marriage;
c. in default of children, the innocent spouse;

3. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

3. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse.

Divorce Obtained by Former Filipinos Abroad, effects

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Here are the frequently asked questions regarding divorce obtained by a former Filipino citizen abroad, to wit:

Q. I am a former Filipino citizen. I got married, also to a Filipino Citizen, in a church wedding in Manila on April 09, 1995. I migrated to the United States sometime in October 1996. I became a naturalized American citizen in 2004. I divorced my Filipina wife after I became a U.S. citizen. Do I still need to file a Petition for Annulment of Marriage before Philippine Courts?

A: No. There is no need to file the Petition. The Divorce that you obtained in America was valid and recognized in Philippine jurisdiction. This is so because you are no longer a Filipino citizen when the Divorce Decree was issued. This issue was already settled by the Supreme Court in LLORENTE versus Court of Appeals G.R. No. 124371. November 23, 2000. This will also entitle your ex-wife to marry again.

Q. I am a former Filipino citizen married to a Filipino citizen. I have recently obtained a Decree of Absolute Divorce of my marriage in the Philippines from the Circuit Court of Cook County, Chicago Illinois. Do I still need to file an Annulment Petition in the Philippines?

A: No. There is no need for you to file another Petition for Annulment in the Philippines. The Decree of Absolute Divorce can be recognized in the Philippines because you are no longer a Filipino citizen when you obtained the Decree from the Circuit Court in Cook County in Chicago, Illinois. Please see case of LLORENTE versus Court of Appeals G.R. No. 124371. November 23, 2000.

Q. Recently, I went to the local Civil Registrar to record in my Marriage Contract, the Decree of Absolute Divorce which I obtained from Baltimore County Circuit Court in the United States. I told them that I am no longer a Filipino citizen when I obtained the Decree of Absolute Divorce. But the Local Civil Registrar refused to record my Divorce without a Court Order from the Philippine Courts. What should I do?

A: The Local Civil Registrar correctly refused to annotate your Divorce Decree in your marriage Contract. You have to file a Petition for the Recognition of a Foreign Judgment of Divorce at the Regional Trial Court. You will need an experienced lawyer to do this because there are intricate legal procedures involved in this process.

Q: What if my ex-wife, who is a Filipina, was the one who a obtained a Divorce before American Courts. Is the Divorce valid? Is she entitled to remarry under Philippine Law?

A: No. The Divorce obtained by your Filipina wife is not valid. She is not entitled to remarry because the Divorce which was obtained by her before American Courts is not recognized under Philippine Law. As a Filipino citizen, the Family Code of the Philippines should be followed on how her marriage will be dissolved.

Q: My husband is a legal permanent resident in California U.S.A. Just recently, he obtained a Divorce in America. Is the Divorce valid under Philippine Law?

A: No. The Divorce is not valid under Philippine Law. Your husband is still a Filipino citizen even though he has a legal permanent status in the U.S. As a Filipino citizen, the Family Code of the Philippines should be followed on how your marriage will be dissolved.

Do you want to get annulled? Frequently Asked Question (FAQ's) about annulment

2009-11-25T04:41:00.000-08:00

Is your marriage no longer working and getting annulled is your best way out? Or the marriage was a mistake in the first place? Here are the frequently asked questions regarding annulment that I have encountered in my practice.

Annulment is the term given by non-lawyers to all cases of annulment proceedings. But legally speaking, annulment cases are only those petitions with grounds falling under Article 45 of the Family Code. The other process is a Petition to declare absolute nullity of marriage or simply a petition for nullity of marriage which can be found under Article 35 (Absence of Formal and Essential Requisites of Marriage), Article 36 (Psychological Incapacity) Article 37 (Incestuous Marriages) and Article 38 (Void by reason of Public Policy) of the Family Code.

Q. What is Annulment of Marriage?

A: Annulment of Marriage is a Court process in order to annul the marital union between a husband and wife. Annulment of marriage presupposes that the marriage was valid from the beginning and remains valid until annulled by the Court.

Q. What are the grounds for annulment? Is there a time limit for this?

A: Marriages can be annulled by the court on the following grounds:

1. Either party was eighteen (18) years of age but below twenty-one (21), and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party. You can only file the Petition within five (5) years after reaching the age of twenty-one. But you cannot anymore file the Petition if you have freely cohabited with each other as husband and wife after you reach the age of twenty-one. Your parent/s or guardian can also file the Petition anytime before you reach the age of twenty-one.

2. Either party was of unsound mind at the time of marriage. You may file the Petition anytime before the death of your husband or wife. But for instance, you freely cohabited with each after he/she came to reason, under this circumstance, you are already precluded by law from filing the Petition.

3. The consent of either party was obtained by fraud. You can file the Petition within five years after the discovery of the fraud, provided that you did not freely cohabit with your husband or wife after your full knowledge of the facts constituting the fraud. Sounds tricky?

4. The consent of either party was obtained by force, intimidation or undue influence or otherwise known as â€œshotgun marriageâ€�. You can file the Petition within five years from the time the force, intimidation, or undue influence disappeared or ceased. However, you are already barred from filing the Petition if you have freely cohabited with your husband or wife knowing that the force or intimidation had already ceased.

5. Either party was a sexual impotent or physically incapable of engaging in sexual intercourse and such incapacity continues and appears to be incurable. You can file the Petition within five (5) years after marriage.

6. Either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. You can also file the Petition within five (5) years after marriage.

Q. What are the kinds of fraud which constitute the ground for annulment?

A: The kinds of fraud that will give ground for annulment are as follows:

1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

2. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

3. Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

4. Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

Q. Where can I file the Petition for Annulment?

A: You can only file the Petition for Annulment in the place of your residence or the place of residence of your husband or wife.

Q. I would like to file the Petition in Cebu but I do not have residence there yet. My husband is not also living there. But I will be accepting a job as call center manager in Cebu a month from now. Can I file the Petition in Cebu?

A: Yes, you can file the Petition in Cebu but you have to establish residence in Cebu for a period of at least six (6) months prior to the filing of the Petition. This can be arranged because you will be relocating there for your new job assignment.