Minimum conditions of Overseas Employment
WHAT ARE THE MINIMUM CONDITIONS
OF OVERSEAS EMPLOYMENT?
Overseas Employment for Filipinos
Overseas employment for most Filipinos is both a lucrative and risky enterprise. With the proliferation of midnight recruitment agencies that offer false employment which often lead to less than humane conditions of work, the Philippine government has created the Philippine Overseas Employment Administration and its predecessor agencies in order to safeguard and ensure the welfare and well-being of Filipino migrant workers. The said agency is tasked with the duty of establishing a watchlist and a system for blacklisting errant recruitment and employment entities.
In fulfilling its mandate, the POEA has already set several guidelines regarding overseas employment. Among these is the rule regarding the minimum conditions of overseas employment. The POEA has required every overseas employment contract to stipulate the following conditions of employment:
The contract must have a provision guaranteeing wages for regular working hours and overtime pay for services rendered beyond regular working hours;
Free transportation from point of hire to the site of employment and return;
Free emergency medical and dental treatment facilities;
Just cause for termination of the contract or services of the employee;
Workmen’s compensation benefit;
Repatriation of worker’s remains and properties in case of his or her death;
Assistance on remittance of salaries, allowances or allotments to the beneficiaries; and
Free and adequate board and lodging facilities or compensatory food allowance at the prevailing cost of living standards at the job site.
Tuesday, October 12, 2010
WHAT IS OVERTIME PAY?
Philippine Concept Of Overtime Pay
WHAT IS OVERTIME PAY?
Definition of Overtime Pay
Overtime pay may be defined as an additional compensation awarded to an employee for work done in excess of eight hours. Every employee permitted or required to perform work beyond eight (8) hours a day shall be entitled to overtime pay. This additional compensation shall amount to the employee’s regular pay excluding bonuses and fringe benefits plus at least 25% thereof. In case an employee is permitted or forced to work on a holiday or rest day, his or her overtime pay shall amount to his or her regular basic salary plus 30% thereof.
The payment of overtime pay is, as a general rule, cannot be the subject of a waiver. It is a benefit granted to an individual by law and thus cannot be ordinarily subject to an agreement between the parties. Overtime pay may only be waived in certain instances such as when a compressed work week schedule has been implemented provided that the following requisites are present:
The waiver is voluntary on the part of the employee;
There is no diminution of the weekly or monthly take-home pay and fringe benefits of the employees;
The value of the benefits that will accrue in favor of the employees shall be commensurate with the overtime pay due to them under any proposed schedule;
That the overtime pay shall be due and demandable if the employees are permitted to work on a day not scheduled for work even when a compressed work week schedule is implemented;
The work does not involve strenuous physical exertion and there must be adequate rest periods;
Such arrangement is temporary in nature.
Most employment contracts today includes built in overtime provisions that guarantee the right of employees to overtime pay. In these instances, only upon submission of sufficient proof of services rendered beyond eight (8) hours shall the employee be entitled to compensation for his overtime pay.
WHAT IS OVERTIME PAY?
Definition of Overtime Pay
Overtime pay may be defined as an additional compensation awarded to an employee for work done in excess of eight hours. Every employee permitted or required to perform work beyond eight (8) hours a day shall be entitled to overtime pay. This additional compensation shall amount to the employee’s regular pay excluding bonuses and fringe benefits plus at least 25% thereof. In case an employee is permitted or forced to work on a holiday or rest day, his or her overtime pay shall amount to his or her regular basic salary plus 30% thereof.
The payment of overtime pay is, as a general rule, cannot be the subject of a waiver. It is a benefit granted to an individual by law and thus cannot be ordinarily subject to an agreement between the parties. Overtime pay may only be waived in certain instances such as when a compressed work week schedule has been implemented provided that the following requisites are present:
The waiver is voluntary on the part of the employee;
There is no diminution of the weekly or monthly take-home pay and fringe benefits of the employees;
The value of the benefits that will accrue in favor of the employees shall be commensurate with the overtime pay due to them under any proposed schedule;
That the overtime pay shall be due and demandable if the employees are permitted to work on a day not scheduled for work even when a compressed work week schedule is implemented;
The work does not involve strenuous physical exertion and there must be adequate rest periods;
Such arrangement is temporary in nature.
Most employment contracts today includes built in overtime provisions that guarantee the right of employees to overtime pay. In these instances, only upon submission of sufficient proof of services rendered beyond eight (8) hours shall the employee be entitled to compensation for his overtime pay.
WHAT ARE THE PROHIBITIONS OF THE LABOR CODE REGARDING WAGES IN THE PHILIPPINES?
Philippine Labor Code Prohibitions Regarding Wages
WHAT ARE THE PROHIBITIONS OF THE LABOR CODE
REGARDING WAGES IN THE PHILIPPINES?
Wages earned by an employee are given special protection under the Labor Code of the Philippines in recognition of its importance in the continued survival of both the employee and his or her family. In a country where majority of its citizens live in what can only be considered as “hand-to-mouth” existence, the Philippine Legislature has deemed it necessary to provide employees who earn barely enough adequate protection, by ensuring that their wages shall be received in full and free from any prohibited deductions.
The Labor Code begins by prohibiting an employer from limiting or otherwise interfering with the freedom of any employee to dispose of his wages. The employer shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person; or otherwise make use of any store or services of such employer or any other person. In fact, criminal liability may ensue since this act of the employer is punished under the Revised Penal Code.
Moreover, an employer is proscribed from making any deduction from the wages of his or her employees. He or she may only make deductions in cases where the worker is insured and the deduction made is to recompense the employer for the amount paid by him as premium on the insurance; or for union dues; or where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; or where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment. This prohibition on deduction extends to the practice of making any deduction from the wages of an employee for the benefit of the employer or his representative as consideration of a promise of employment or retention in employment.
An employer is also prohibited from requiring his or her worker to make deposits from which deductions shall be made for the reimbursement of losses or damages to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or businesses where said practice is a recognized one; or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations. In such situations, the employee must first be accorded the right to be heard and his or her responsibility for the damage has been clearly shown before any deduction shall take effect.
It shall also be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker; or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent. This prohibition applies not only to the employer but also against other persons.
Lastly, it shall be unlawful for an employer to refuse to pay or reduce the wages and benefits; discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding or has testified or is about to testify in proceedings concerning violations of the prohibitions on wages.
WHAT ARE THE PROHIBITIONS OF THE LABOR CODE
REGARDING WAGES IN THE PHILIPPINES?
Wages earned by an employee are given special protection under the Labor Code of the Philippines in recognition of its importance in the continued survival of both the employee and his or her family. In a country where majority of its citizens live in what can only be considered as “hand-to-mouth” existence, the Philippine Legislature has deemed it necessary to provide employees who earn barely enough adequate protection, by ensuring that their wages shall be received in full and free from any prohibited deductions.
The Labor Code begins by prohibiting an employer from limiting or otherwise interfering with the freedom of any employee to dispose of his wages. The employer shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person; or otherwise make use of any store or services of such employer or any other person. In fact, criminal liability may ensue since this act of the employer is punished under the Revised Penal Code.
Moreover, an employer is proscribed from making any deduction from the wages of his or her employees. He or she may only make deductions in cases where the worker is insured and the deduction made is to recompense the employer for the amount paid by him as premium on the insurance; or for union dues; or where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; or where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment. This prohibition on deduction extends to the practice of making any deduction from the wages of an employee for the benefit of the employer or his representative as consideration of a promise of employment or retention in employment.
An employer is also prohibited from requiring his or her worker to make deposits from which deductions shall be made for the reimbursement of losses or damages to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or businesses where said practice is a recognized one; or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations. In such situations, the employee must first be accorded the right to be heard and his or her responsibility for the damage has been clearly shown before any deduction shall take effect.
It shall also be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker; or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent. This prohibition applies not only to the employer but also against other persons.
Lastly, it shall be unlawful for an employer to refuse to pay or reduce the wages and benefits; discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding or has testified or is about to testify in proceedings concerning violations of the prohibitions on wages.
WHAT ARE THE RULES ON CHILD CUSTODY?
Child Custody
WHAT ARE THE RULES ON CHILD CUSTODY?
Child custody is intertwined with the concept of parental authority as the former is an integral aspect of the latter. Having custody over a child allows parents to exercise parental authority since the proximity between these two rights facilitates control and guidance. With this in mind, it can be clearly seen that custody is an issue that is treated with paramount importance in the realm of family law.
As a default rule, the provisions of the Civil Code provide for the joint exercise of parental authority by the parents over the child. For illegitimate children, the rule remains that parental authority and custody shall remain with the mother. In cases involving the separation of the parents either by annulment; legal separation; or the declaration of nullity of a marriage and in the absence of any written agreement between the spouses assigning custody over the children, the court shall provide for the custody of the common children giving paramount consideration to their moral and material welfare and their choice of the parent with whom they wish to remain.
Under the rules governing provisional orders, the following factors may be considered by the court in determining the provisional custody of the children: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; (c) the child’s health, safety, and welfare; (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
Furthermore, the court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child.
The court shall also provide for appropriate visitation rights of the other parent. In the case of children below the age of 7 years, the law prohibits them from being separated from the mother unless the court finds compelling reasons to order otherwise. This rule is rooted in the recognition of the tremendous pain and trauma that a child and his or her mother undergo when they are forced to separate.
After litigation, the court shall make an order declaring to whom custody of the children shall be awarded. The court shall take into consideration the fitness of each parent before granting custody.
Instances exist that transcend the ordinary rules of custody. These contemplate situations calling for the exercise of special parental authority in cases where both parents are in default or when a guardian is appointed by the court. In such cases, the surviving grandparent, oldest brother or sister or the child’s actual custodian are granted custody in this order. For foundlings, abandoned or abused children, the orphanages and other institutions shall exercise parental authority and custody.
WHAT ARE THE RULES ON CHILD CUSTODY?
Child custody is intertwined with the concept of parental authority as the former is an integral aspect of the latter. Having custody over a child allows parents to exercise parental authority since the proximity between these two rights facilitates control and guidance. With this in mind, it can be clearly seen that custody is an issue that is treated with paramount importance in the realm of family law.
As a default rule, the provisions of the Civil Code provide for the joint exercise of parental authority by the parents over the child. For illegitimate children, the rule remains that parental authority and custody shall remain with the mother. In cases involving the separation of the parents either by annulment; legal separation; or the declaration of nullity of a marriage and in the absence of any written agreement between the spouses assigning custody over the children, the court shall provide for the custody of the common children giving paramount consideration to their moral and material welfare and their choice of the parent with whom they wish to remain.
Under the rules governing provisional orders, the following factors may be considered by the court in determining the provisional custody of the children: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; (c) the child’s health, safety, and welfare; (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
Furthermore, the court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child.
The court shall also provide for appropriate visitation rights of the other parent. In the case of children below the age of 7 years, the law prohibits them from being separated from the mother unless the court finds compelling reasons to order otherwise. This rule is rooted in the recognition of the tremendous pain and trauma that a child and his or her mother undergo when they are forced to separate.
After litigation, the court shall make an order declaring to whom custody of the children shall be awarded. The court shall take into consideration the fitness of each parent before granting custody.
Instances exist that transcend the ordinary rules of custody. These contemplate situations calling for the exercise of special parental authority in cases where both parents are in default or when a guardian is appointed by the court. In such cases, the surviving grandparent, oldest brother or sister or the child’s actual custodian are granted custody in this order. For foundlings, abandoned or abused children, the orphanages and other institutions shall exercise parental authority and custody.
WHAT IS SPOUSAL SUPPORT UNDER THE PHILIPPINE FAMILY CODE?
Spousal Support
WHAT IS SPOUSAL SUPPORT UNDER THE PHILIPPINE FAMILY CODE?
Philippine law has defined support as everything indispensible in keeping with the financial capacity of a family. It may consist of food or sustenance, dwelling or shelter, clothing, medical attendance, education and transportation. Under Philippine law, support plays a very important role in ensuring the survival of the family unit. As such, the law has taken great pains in protecting it by making it exempt from levy or execution. The law also prohibits the renunciation of support in favor of a third person. Neither is support a valid subject of compromise nor can it be set up for compensation against an existing creditor.
The obligation to provide spousal support derives itself from article 68 of the Family Code elucidating the various rights and obligations of the spouses during the existence of their marriage. Under the said provision, both spouses are required to render mutual help and support to each other. As a rule, the spouses are jointly responsible for the support of the family. Article 70 of the Family Code further prescribes the order from which support shall be paid. According to the provision, the expenses for support shall be paid first from the community property and in the absence thereof, from the income or fruits of the separate properties. In case of insufficiency or absence of said income or fruits, support shall be taken from their separate properties.
The obligation to provide for support may be satisfied either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support unless there is a moral or legal obstacle thereto. The obligation to give support shall be demandable from the time the recipient needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand.
Pending litigation, support may be claimed in accordance with the provisions of the Rules of Court on Support pendente lite. Rule 61 of the Rules of Court provides for the proper application and procedure for such a petition. Under the said rule, the court hearing the case may, upon proper petition and hearing grant and provisionally fix the amount of money to be paid or to provide for the other forms of support taking into consideration the resources of the adverse party. Furthermore, as provided for under the Rule on Provisional Orders covering actions for annulments, declaration of nullity of marriages and actions for legal separation, the court issuing the order for provisional support may be guided by the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse’s future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living; and (10) any other factors the court may deem just and equitable. This however, should not be confused with a separate action for support. An action for support pendente lite requires an existing case where the issue of support is but an incident of the main proceeding. An action for support is an independent proceeding wherein the grant of support is the main relief sought.
Spousal support may be denied for reasons such as the following: a) the person from whom support is sought is not legally required to provide it; b) when the claimant spouse is the guilty spouse; or c) when the other spouse provided the cause for legal separation
WHAT IS SPOUSAL SUPPORT UNDER THE PHILIPPINE FAMILY CODE?
Philippine law has defined support as everything indispensible in keeping with the financial capacity of a family. It may consist of food or sustenance, dwelling or shelter, clothing, medical attendance, education and transportation. Under Philippine law, support plays a very important role in ensuring the survival of the family unit. As such, the law has taken great pains in protecting it by making it exempt from levy or execution. The law also prohibits the renunciation of support in favor of a third person. Neither is support a valid subject of compromise nor can it be set up for compensation against an existing creditor.
The obligation to provide spousal support derives itself from article 68 of the Family Code elucidating the various rights and obligations of the spouses during the existence of their marriage. Under the said provision, both spouses are required to render mutual help and support to each other. As a rule, the spouses are jointly responsible for the support of the family. Article 70 of the Family Code further prescribes the order from which support shall be paid. According to the provision, the expenses for support shall be paid first from the community property and in the absence thereof, from the income or fruits of the separate properties. In case of insufficiency or absence of said income or fruits, support shall be taken from their separate properties.
The obligation to provide for support may be satisfied either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support unless there is a moral or legal obstacle thereto. The obligation to give support shall be demandable from the time the recipient needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand.
Pending litigation, support may be claimed in accordance with the provisions of the Rules of Court on Support pendente lite. Rule 61 of the Rules of Court provides for the proper application and procedure for such a petition. Under the said rule, the court hearing the case may, upon proper petition and hearing grant and provisionally fix the amount of money to be paid or to provide for the other forms of support taking into consideration the resources of the adverse party. Furthermore, as provided for under the Rule on Provisional Orders covering actions for annulments, declaration of nullity of marriages and actions for legal separation, the court issuing the order for provisional support may be guided by the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse’s future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living; and (10) any other factors the court may deem just and equitable. This however, should not be confused with a separate action for support. An action for support pendente lite requires an existing case where the issue of support is but an incident of the main proceeding. An action for support is an independent proceeding wherein the grant of support is the main relief sought.
Spousal support may be denied for reasons such as the following: a) the person from whom support is sought is not legally required to provide it; b) when the claimant spouse is the guilty spouse; or c) when the other spouse provided the cause for legal separation
WHAT ARE THE MARRIAGES WITHOUT LEGAL EFFECTS IN THE PHILIPPINES?
Philippine Marriages
WHAT ARE THE MARRIAGES WITHOUT LEGAL EFFECTS IN THE PHILIPPINES?
Void marriages are marriages that do not have any legal effect from their celebration and therefore cannot be used as the basis for rights and responsibilities under the law. Being void from the very beginning, such marriages are not susceptible to ratification by either party. Furthermore, marriages of such character may be impugned either in a direct or indirect proceeding during or even after the death of the parties. Under Article 35 of the Family Code of the Philippines, the following marriages shall be null and void from the beginning:
(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, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
The list is not exclusive since there are other articles that also provide for other kinds of void marriages. These provisions are found in articles 36, 37, 38 and 53 of the same code. Article 36 deals with marriages that have been celebrated where either of the parties was suffering from psychological incapacity. Under this article, such a marriage may be subsequently declared null and void. Psychological incapacity has been defined as a mental incapacity that causes a party to be truly incognitive of basic marital covenants that must be assumed and discharged by the parties. Despite this definition, courts are still given wide latitude in defining instances that also fall within the term psychological incapacity as it was the intent of the lawmakers to give judges such discretion. Circumstances that show the presence of psychological incapacity include the constant refusal to procreate with his or her spouse; refusal to dwell in the same house and consequently leaving the other spouse without any justification; unbearable jealousy of either parties; and immaturity or lack of rational judgment.
Article 37 deals with incestuous marriages. These marriages are declared null and void based on gathered scientific evidence where marriage between relatives of a certain degree may produce offsprings that are both genetically inferior and defective. In order to prevent such situations, the law prohibits these persons from marrying each other. Article 37 provides as follows:
Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
Article 38 deals with marriages contrary to public policy. Under this provision, the following individuals are prohibited from marrying each other due to the artificial relationship that both the law and society recognizes. In such cases, the law treats such individuals as being related despite their lack of blood relation. Article 38 lists these marriages as follows:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.
Article 53 deals with subsequent marriages entered into by either party without fulfilling the requirements laid down by law. The provision contemplates a previous marriage that was annulled or declared void. The former spouses are free to remarry provided they have fulfilled the requirement of recording the judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children’s presumptive legitimes in the appropriate civil registry and registries of property. Failure to do so would result in making any subsequent marriage null and void.
WHAT ARE THE MARRIAGES WITHOUT LEGAL EFFECTS IN THE PHILIPPINES?
Void marriages are marriages that do not have any legal effect from their celebration and therefore cannot be used as the basis for rights and responsibilities under the law. Being void from the very beginning, such marriages are not susceptible to ratification by either party. Furthermore, marriages of such character may be impugned either in a direct or indirect proceeding during or even after the death of the parties. Under Article 35 of the Family Code of the Philippines, the following marriages shall be null and void from the beginning:
(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, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
The list is not exclusive since there are other articles that also provide for other kinds of void marriages. These provisions are found in articles 36, 37, 38 and 53 of the same code. Article 36 deals with marriages that have been celebrated where either of the parties was suffering from psychological incapacity. Under this article, such a marriage may be subsequently declared null and void. Psychological incapacity has been defined as a mental incapacity that causes a party to be truly incognitive of basic marital covenants that must be assumed and discharged by the parties. Despite this definition, courts are still given wide latitude in defining instances that also fall within the term psychological incapacity as it was the intent of the lawmakers to give judges such discretion. Circumstances that show the presence of psychological incapacity include the constant refusal to procreate with his or her spouse; refusal to dwell in the same house and consequently leaving the other spouse without any justification; unbearable jealousy of either parties; and immaturity or lack of rational judgment.
Article 37 deals with incestuous marriages. These marriages are declared null and void based on gathered scientific evidence where marriage between relatives of a certain degree may produce offsprings that are both genetically inferior and defective. In order to prevent such situations, the law prohibits these persons from marrying each other. Article 37 provides as follows:
Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
Article 38 deals with marriages contrary to public policy. Under this provision, the following individuals are prohibited from marrying each other due to the artificial relationship that both the law and society recognizes. In such cases, the law treats such individuals as being related despite their lack of blood relation. Article 38 lists these marriages as follows:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.
Article 53 deals with subsequent marriages entered into by either party without fulfilling the requirements laid down by law. The provision contemplates a previous marriage that was annulled or declared void. The former spouses are free to remarry provided they have fulfilled the requirement of recording the judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children’s presumptive legitimes in the appropriate civil registry and registries of property. Failure to do so would result in making any subsequent marriage null and void.
An Amendment To The Rules On Legitimation Of Children
An Amendment To The Rules On Legitimation Of Children
REPUBLIC ACT. NO. 9858
AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO PARENTS BELOW MARRYING AGE, AMENDING FOR THE PURPOSE THE FAMILY CODE OF THE PHILIPPINES, AS AMENDED
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
Section 1. Article 177 of Executive Order No. 209, otherwise known as the “Family Code of the Philippines”, as amended, is hereby further amended to read as follows:
“Art. 177. Children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated.”
“Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.”
Section 2. Implementing Rules. – The civil Registrar General shall, in consultation with the chairpersons of the Committee on Revision of Laws of the House of Representatives and the Committee on Youth, Women and Family Relations of the Senate, the Council for the Welfare of Children, the Department of Justice (DOJ), the Department of Foreign Affairs (DFA), the office of the Supreme Court Administrator, the Philippine Association of Civil Registrars (PACR) and the UP Law Center, issue the necessary rules/regulations for the effective implementation of this Act not later than one (1) month from its effectivity.
Section 3. Repealing Clause. – All laws, presidential decrees, executive orders, proclamations and/or administrative regulations which are inconsistent with the provisions of this Act are hereby amended, modified, superseded or repealed accordingly.
Section 4. Effectivity Clause. – This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in at least two (2) newspapers of national circulation.
Approved:
JUAN PONCE ENRILE
President of the Senate
PROSPERO C. NOGRALES
Speaker of the House of Representatives
This Act which is a consolidation of House Bill No. 5279 and Senate Bill No. 3111 was finally passed by the House of Representatives and the Senate on October 13, 2009.
EMMA LIRIO-REYES
Secretary of the Senate
MARILYN B. BARUA-YAP
Secretary General House of Representaives
Approved: DEC 20, 2009
GLORIA MACAPAGAL–ARROYO
President of the Philippines
REPUBLIC ACT. NO. 9858
AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO PARENTS BELOW MARRYING AGE, AMENDING FOR THE PURPOSE THE FAMILY CODE OF THE PHILIPPINES, AS AMENDED
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
Section 1. Article 177 of Executive Order No. 209, otherwise known as the “Family Code of the Philippines”, as amended, is hereby further amended to read as follows:
“Art. 177. Children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated.”
“Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.”
Section 2. Implementing Rules. – The civil Registrar General shall, in consultation with the chairpersons of the Committee on Revision of Laws of the House of Representatives and the Committee on Youth, Women and Family Relations of the Senate, the Council for the Welfare of Children, the Department of Justice (DOJ), the Department of Foreign Affairs (DFA), the office of the Supreme Court Administrator, the Philippine Association of Civil Registrars (PACR) and the UP Law Center, issue the necessary rules/regulations for the effective implementation of this Act not later than one (1) month from its effectivity.
Section 3. Repealing Clause. – All laws, presidential decrees, executive orders, proclamations and/or administrative regulations which are inconsistent with the provisions of this Act are hereby amended, modified, superseded or repealed accordingly.
Section 4. Effectivity Clause. – This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in at least two (2) newspapers of national circulation.
Approved:
JUAN PONCE ENRILE
President of the Senate
PROSPERO C. NOGRALES
Speaker of the House of Representatives
This Act which is a consolidation of House Bill No. 5279 and Senate Bill No. 3111 was finally passed by the House of Representatives and the Senate on October 13, 2009.
EMMA LIRIO-REYES
Secretary of the Senate
MARILYN B. BARUA-YAP
Secretary General House of Representaives
Approved: DEC 20, 2009
GLORIA MACAPAGAL–ARROYO
President of the Philippines
WHAT ARE THE EFFECTS OF SUCCESSFUL REGISTRATION OF THE DOCUMENTS RECOGNIZING AN ILLEGITIMATE CHILD?
Recognition Of An Illegitimate Child
WHAT ARE THE EFFECTS OF SUCCESSFUL REGISTRATION OF
THE DOCUMENTS RECOGNIZING AN ILLEGITIMATE CHILD?
(Source: Implementing Rules and Regulations of R.A. 9255)
The effects of said registration first depend on whether the birth of the illegitimate child is registered or not.
Case 1: Birth of the Illegitimate Child is Not yet Registered
In a case where the birth is not yet registered, the effects are detailed below:
1. The surname of the father shall be entered as the last name of the illegitimate child in the Certificate of Live Birth. After such entry, the mentioned certificate shall be recorded in the Register of Births.
2. If there exists an admission of paternity at the back of the Certificate of Live Birth, no annotation is made in said certificate, instead the following annotation shall be entered in the Register of Births:
“Acknowledged by (name of father) on (date) pursuant to RA 9255” 3. If the admission of paternity is made in a separate public document, the following annotation shall be entered both in the Certificate of Live Birth and the Register of Births:
“ Acknowledged by (name of father) on (date) pursuant to RA 9255”
Case 2: Birth was Registered under the Surname of the Mother of the
Illegitimate Child
On the other hand, in a case where the birth was previously registered under the surname of the mother of the illegitimate child, the effects are elucidated below:
1. If admission of paternity was made either 1) at the back of the Certificate of Live Birth; or 2) in a separate public document; or 3) in a private handwritten document, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation of said entry shall be made both in the Certificate of Live Birth and the Register of Births as follows:
“The surname of the child is hereby changed from (original surname) to (new surname) pursuant to RA 9255.”
However, the original surname of the illegitimate child in the above Certificate of Live Birth as well as in the Register of Births shall not be changed or deleted.
2. If the filiation was not expressly recognized at the time of registration, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth and the Register of Births as follows:
“Acknowledged by (name of father) on (date). The surname of the child is hereby changed from (original surname ) to (new surname) on (date) pursuant to RA 9255.”
WHAT ARE THE EFFECTS OF SUCCESSFUL REGISTRATION OF
THE DOCUMENTS RECOGNIZING AN ILLEGITIMATE CHILD?
(Source: Implementing Rules and Regulations of R.A. 9255)
The effects of said registration first depend on whether the birth of the illegitimate child is registered or not.
Case 1: Birth of the Illegitimate Child is Not yet Registered
In a case where the birth is not yet registered, the effects are detailed below:
1. The surname of the father shall be entered as the last name of the illegitimate child in the Certificate of Live Birth. After such entry, the mentioned certificate shall be recorded in the Register of Births.
2. If there exists an admission of paternity at the back of the Certificate of Live Birth, no annotation is made in said certificate, instead the following annotation shall be entered in the Register of Births:
“Acknowledged by (name of father) on (date) pursuant to RA 9255” 3. If the admission of paternity is made in a separate public document, the following annotation shall be entered both in the Certificate of Live Birth and the Register of Births:
“ Acknowledged by (name of father) on (date) pursuant to RA 9255”
Case 2: Birth was Registered under the Surname of the Mother of the
Illegitimate Child
On the other hand, in a case where the birth was previously registered under the surname of the mother of the illegitimate child, the effects are elucidated below:
1. If admission of paternity was made either 1) at the back of the Certificate of Live Birth; or 2) in a separate public document; or 3) in a private handwritten document, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation of said entry shall be made both in the Certificate of Live Birth and the Register of Births as follows:
“The surname of the child is hereby changed from (original surname) to (new surname) pursuant to RA 9255.”
However, the original surname of the illegitimate child in the above Certificate of Live Birth as well as in the Register of Births shall not be changed or deleted.
2. If the filiation was not expressly recognized at the time of registration, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth and the Register of Births as follows:
“Acknowledged by (name of father) on (date). The surname of the child is hereby changed from (original surname ) to (new surname) on (date) pursuant to RA 9255.”
WHAT IS THE PROCESS INVOLVED IN CHANGING THE SURNAME OF AN ILLEGITIMATE CHILD TO THAT OF HIS FATHER?
Surname Of Illegitimate Child
WHAT IS THE PROCESS INVOLVED IN CHANGING THE SURNAME
OF AN ILLEGITIMATE CHILD TO THAT OF HIS FATHER?
An illegitimate child is one born out of wedlock by parents who have legal impediments to marry each other. With this status, Article 176 of the Family Code mandates that the child use the surname of his mother.
However, Republic Act 9255 which took effect on 19 March 2004, amended the Family Code in this wise:
Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”
The implementing rules and regulations of the above law mandate the registration of the public documents except the record of birth, evidencing the recognition of the illegitimate child in order to give effect to the change of surname. The processes involved are detailed below:
The Process of Changing the Surname of an Illegitimate Child
Who may file
The persons allowed to file the public document or the Affidavit to Use the Surname of the Father (AUSF) are as follows:1) father; 2) mother; 3) child if of age; or 4) the guardian.
Guardian refers to a person lawfully invested with the power, and charged with the duty, of taking care of one who, for defect of age, understanding, or self-control, is considered incapable in administering his own affairs. This term also refers to those authorized to exercise substitute parental authority over the child in default of parents or a judicially appointed guardian as set forth in the Family Code.
A public document, on the other hand, refers to the affidavit of recognition executed by the father such as the Affidavit of Admission of Paternity or the Affidavit of Acknowledgment.
The Affidavit to Use the Surname of the Father (AUSF) is the affidavit attesting to the intention to use the father’s name.
Where to file
Three instances are contemplated by the rules, namely:
If the public document or AUSF was executed within the Philippines and the illegitimate child was also born in the country, then the filing should be done in the Local Civil Registry Office (LCRO) of the place where the child was born.
If the public document or AUSF was executed outside the Philippines, but the illegitimate child was born in the country, then the filing should be done in the LCRO of Manila.
If the illegitimate child was born outside the Philippines, the filing should be done at the LCRO of Manila, regardless of the place where the public document or AUSF was executed.
What to file
The following documents shall be filed at the LCRO: 1) certificate of live birth with accomplished Affidavit of Acknowledgment/Admission of Paternity at the back; 2) public document; and 3) AUSF, including all supporting documents.
When to register
Within twenty (20) days from the date of execution of the public document or the AUSF, the latter should be registered at the place of registry of birth of the illegitimate child.
After complying with the above mentioned requirements, the illegitimate child or his representative still needs to undergo the process elucidated below in order for the child to be allowed to use the surname of the father:
In case of births not yet registered, the illegitimate child will only be allowed to use his father’s surname under the following conditions:
A public document must be executed by the father , either at the back of the Certificate of Live Birth or in a separate instrument; or
In cases where the admission of paternity is made through a private handwritten instrument, the registration must be supported by the following:
» AUSF;
» consent of the illegitimate child if already eighteen (18) years old or over at the time of filing; and
» any two (2) of the following documents showing clearly the paternity between the father and the child: a) employment records; b) SSS/GSIS records; c) Insurance; d) certification of membership in any organization; e) statement of assets and liabilities; or f) income tax return (ITR)
On the other hand, in case of births previously registered under the surname of the mother, the rules provide the following:
» If the father expressly recognized the child, the latter shall be allowed to use the surname of the father upon submission of the accomplished AUSF.
» If the father did not expressly recognize the child, the latter must submit a public document or a private handwritten instrument backed up by documents previously enumerated in order to be allowed to use his father’s surname.
With respect to the consent of the illegitimate child, it is required in case he already attained the age of majority, that is, at least eighteen (18) years of age. The consent may likewise be contained in a separate, duly notarized instrument. The exception to this rule is, when filiation has been recognized by the father.
WHAT IS THE PROCESS INVOLVED IN CHANGING THE SURNAME
OF AN ILLEGITIMATE CHILD TO THAT OF HIS FATHER?
An illegitimate child is one born out of wedlock by parents who have legal impediments to marry each other. With this status, Article 176 of the Family Code mandates that the child use the surname of his mother.
However, Republic Act 9255 which took effect on 19 March 2004, amended the Family Code in this wise:
Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”
The implementing rules and regulations of the above law mandate the registration of the public documents except the record of birth, evidencing the recognition of the illegitimate child in order to give effect to the change of surname. The processes involved are detailed below:
The Process of Changing the Surname of an Illegitimate Child
Who may file
The persons allowed to file the public document or the Affidavit to Use the Surname of the Father (AUSF) are as follows:1) father; 2) mother; 3) child if of age; or 4) the guardian.
Guardian refers to a person lawfully invested with the power, and charged with the duty, of taking care of one who, for defect of age, understanding, or self-control, is considered incapable in administering his own affairs. This term also refers to those authorized to exercise substitute parental authority over the child in default of parents or a judicially appointed guardian as set forth in the Family Code.
A public document, on the other hand, refers to the affidavit of recognition executed by the father such as the Affidavit of Admission of Paternity or the Affidavit of Acknowledgment.
The Affidavit to Use the Surname of the Father (AUSF) is the affidavit attesting to the intention to use the father’s name.
Where to file
Three instances are contemplated by the rules, namely:
If the public document or AUSF was executed within the Philippines and the illegitimate child was also born in the country, then the filing should be done in the Local Civil Registry Office (LCRO) of the place where the child was born.
If the public document or AUSF was executed outside the Philippines, but the illegitimate child was born in the country, then the filing should be done in the LCRO of Manila.
If the illegitimate child was born outside the Philippines, the filing should be done at the LCRO of Manila, regardless of the place where the public document or AUSF was executed.
What to file
The following documents shall be filed at the LCRO: 1) certificate of live birth with accomplished Affidavit of Acknowledgment/Admission of Paternity at the back; 2) public document; and 3) AUSF, including all supporting documents.
When to register
Within twenty (20) days from the date of execution of the public document or the AUSF, the latter should be registered at the place of registry of birth of the illegitimate child.
After complying with the above mentioned requirements, the illegitimate child or his representative still needs to undergo the process elucidated below in order for the child to be allowed to use the surname of the father:
In case of births not yet registered, the illegitimate child will only be allowed to use his father’s surname under the following conditions:
A public document must be executed by the father , either at the back of the Certificate of Live Birth or in a separate instrument; or
In cases where the admission of paternity is made through a private handwritten instrument, the registration must be supported by the following:
» AUSF;
» consent of the illegitimate child if already eighteen (18) years old or over at the time of filing; and
» any two (2) of the following documents showing clearly the paternity between the father and the child: a) employment records; b) SSS/GSIS records; c) Insurance; d) certification of membership in any organization; e) statement of assets and liabilities; or f) income tax return (ITR)
On the other hand, in case of births previously registered under the surname of the mother, the rules provide the following:
» If the father expressly recognized the child, the latter shall be allowed to use the surname of the father upon submission of the accomplished AUSF.
» If the father did not expressly recognize the child, the latter must submit a public document or a private handwritten instrument backed up by documents previously enumerated in order to be allowed to use his father’s surname.
With respect to the consent of the illegitimate child, it is required in case he already attained the age of majority, that is, at least eighteen (18) years of age. The consent may likewise be contained in a separate, duly notarized instrument. The exception to this rule is, when filiation has been recognized by the father.
HOW TO CHANGE THE SURNAME OF A LEGITIMATED CHILD
Surname Of A Legitimated Child
HOW TO CHANGE THE SURNAME OF A LEGITIMATED CHILD
A legitimated child is a child conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other (Article 177, New Civil Code of the Philippines).
In simple terms, a legitimated child is one conceived and born to parents who can validly marry each other but do not opt to do so. Thus at birth, the child is considered illegitimate. Said status, however, completely changes upon the subsequent marriage of the parents.
Since at the onset, the child is illegitimate, the Family Code then mandates the use of his mother’s surname. Republic Act 9255, however, now allows an illegitimate child to use his father’s surname under certain conditions.
With respect to a legitimated child still carrying the surname of his mother, a problem arises on how he can use his father’s surname.
For instance, a child was born sometime in 2003 before the marriage of his parents in 2004. In his birth certificate, he used his mother’s surname. After said marriage in 2004, the child acquired a legitimated status. What then must his parents do in order for him to be allowed to use his father’s surname?
Steps in Changing the Surname of a Legitimated Child
The Philippine National Statistics Office provides a solution to above problem. According to said office, the following are the steps to be taken by the parents:
1. First, both parents must execute an Affidavit of Legitimation containing the following facts (www.census.gov.ph):
1.1 the names of the parents;
1.2 that at the time when child was conceived, the aforesaid parents could have contracted marriage, and that they subsequently contracted marriage;
1.3 the date and place when such marriage was solemnized;
1.4 the name of the officer who officiated the marriage;
1.5 the city or municipality where such marriage was recorded;
1.6 the name of the child to be legitimated, and the other facts of birth;
1.7 the date and place where the birth of the child was registered ; and
1.8 the manner by which the child was acknowledged by the parents which may be in the child’s record of birth, in a will, a statement before a court of record, or in any authentic writing (not required for illegitimate children born on or after 3 August 1988—the effectivity of the Family Code).
2. Second, above affidavit must be registered in the civil registry office of the place where the birth was recorded.
The NSO further explains that the registration of said affidavit has the following effects:
The original family name of the child as appearing in Registrar of Births shall not be erased or deleted, but in the remarks space shall be written “Legitimated by Subsequent Marriage” indicating the family name which the child shall bear by virtue of the legitimation also giving reference to the entry number in the Registrar of Legal Instruments.
When the interested party requests a copy of the birth certificate of a legitimated child a certified copy of the certificate of Live Birth bearing the annotation “Legitimated by Subsequent Marriage on ________ (date of marriage) at __________ (place of marriage)” or a certified transcription using standard form from the Register of Births bearing the effects of legitimation and the same annotation indicated in the certified true copy shall be issued. (Rule 66, A.O. No. 1 S. 1993)
Indeed, it is easy to affix the father’s surname in the name of a legitimated child. After all, his status is equal to a legitimate child in the eyes of the law.
HOW TO CHANGE THE SURNAME OF A LEGITIMATED CHILD
A legitimated child is a child conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other (Article 177, New Civil Code of the Philippines).
In simple terms, a legitimated child is one conceived and born to parents who can validly marry each other but do not opt to do so. Thus at birth, the child is considered illegitimate. Said status, however, completely changes upon the subsequent marriage of the parents.
Since at the onset, the child is illegitimate, the Family Code then mandates the use of his mother’s surname. Republic Act 9255, however, now allows an illegitimate child to use his father’s surname under certain conditions.
With respect to a legitimated child still carrying the surname of his mother, a problem arises on how he can use his father’s surname.
For instance, a child was born sometime in 2003 before the marriage of his parents in 2004. In his birth certificate, he used his mother’s surname. After said marriage in 2004, the child acquired a legitimated status. What then must his parents do in order for him to be allowed to use his father’s surname?
Steps in Changing the Surname of a Legitimated Child
The Philippine National Statistics Office provides a solution to above problem. According to said office, the following are the steps to be taken by the parents:
1. First, both parents must execute an Affidavit of Legitimation containing the following facts (www.census.gov.ph):
1.1 the names of the parents;
1.2 that at the time when child was conceived, the aforesaid parents could have contracted marriage, and that they subsequently contracted marriage;
1.3 the date and place when such marriage was solemnized;
1.4 the name of the officer who officiated the marriage;
1.5 the city or municipality where such marriage was recorded;
1.6 the name of the child to be legitimated, and the other facts of birth;
1.7 the date and place where the birth of the child was registered ; and
1.8 the manner by which the child was acknowledged by the parents which may be in the child’s record of birth, in a will, a statement before a court of record, or in any authentic writing (not required for illegitimate children born on or after 3 August 1988—the effectivity of the Family Code).
2. Second, above affidavit must be registered in the civil registry office of the place where the birth was recorded.
The NSO further explains that the registration of said affidavit has the following effects:
The original family name of the child as appearing in Registrar of Births shall not be erased or deleted, but in the remarks space shall be written “Legitimated by Subsequent Marriage” indicating the family name which the child shall bear by virtue of the legitimation also giving reference to the entry number in the Registrar of Legal Instruments.
When the interested party requests a copy of the birth certificate of a legitimated child a certified copy of the certificate of Live Birth bearing the annotation “Legitimated by Subsequent Marriage on ________ (date of marriage) at __________ (place of marriage)” or a certified transcription using standard form from the Register of Births bearing the effects of legitimation and the same annotation indicated in the certified true copy shall be issued. (Rule 66, A.O. No. 1 S. 1993)
Indeed, it is easy to affix the father’s surname in the name of a legitimated child. After all, his status is equal to a legitimate child in the eyes of the law.
Psychological Incapacity In Philippine Marriages
WHAT IS PSYCHOLOGICAL INCAPACITY?
Characteristics of Psychological Incapacity
Dr. Gerardo Ty Veloso enumerates the following general characteristics of psychological incapacity (Handbook on the Family Code of the Philippines, Alicia V. Sempio-Diy, 1988, 45-46):
1. Gravity. There exists a difficulty in carrying out the normal and ordinary duties of marriage as well as family life compared to the average couple under ordinary circumstances.
2. Antecedence. The incapacity takes its roots prior to the marriage although its overt manifestations appear only subsequent thereto.
3. Incurability. The party is without sufficient means, material or otherwise, to remedy such incapacity.
There are neither exact descriptions nor examples of psychological incapacity. The drafters of the Family Code of the Philippines desire to provide the courts much leeway in its interpretation. They intend said interpretations to be on a case-to-case basis and guided by the following factors: a) experience; b) the findings of experts and researchers in psychological disciplines; and c)by decisions of Church tribunals, which although not binding, are nevertheless persuasive (ibid.,43)
Indications of a person with Psychological Incapacity
Despite the relative interpretation accorded to psychological incapacity, Dr. Veloso lays down a few instances indicative of said disorder, namely (ibid., 44-45):
a) homosexuality in men or lesbianism in women (attachment to the same sex for sexual fulfillment);
b) satyriasis in men or nymphomania in women ( excessive and promiscuous sex hunger);
c) extremely low intelligence;
d) immaturity, i.e. lack of an effective sense of rational judgment and responsibility, otherwise peculiar to infants ( like refusal of the husband to support the family or excessive dependence on parents or peer group approval);
e) epilepsy, with permanently recurring mal-adaptive manifestations;
f) habitual alcoholism, or the condition by which a person lives for the next drink and the next drink and the next drink; and
g) criminality, or the condition by which a person consistently gets in trouble with the law or with socially established norms of conduct.
In addition, retired Court of Appeals Associate Justice Alicia V. Sempio-Diy reveals in her book, Handbook on the Family Code of the Philippines that Father Healy and another expert on church annulments, Archbishop Oscar Cruz, elucidate the following manifestations as additional indicators (ibid., 45):
a) the refusal of the wife to dwell with the husband after the marriage without fault on the part of the latter; or to have sex with the husband; or to have children;
b) when either party or both of them labor under an affliction that makes common life as husband and wife impossible or unbearable such as compulsive gambling; or unbearable jealousy on the part of one party or other psychic or psychological causes of like import and gravity; and
c) manifestations of sociopathic anomalies in husbands like sadism or infliction of physical violence on the wife; constitutional laziness or indolence; drug dependence or addiction; or some kind of psychosexual anomaly
Indeed, psychological incapacity is a disorder difficult to prove. Its general characteristics must first be clearly manifest before it can be used as a ground in severing marital relations.
Characteristics of Psychological Incapacity
Dr. Gerardo Ty Veloso enumerates the following general characteristics of psychological incapacity (Handbook on the Family Code of the Philippines, Alicia V. Sempio-Diy, 1988, 45-46):
1. Gravity. There exists a difficulty in carrying out the normal and ordinary duties of marriage as well as family life compared to the average couple under ordinary circumstances.
2. Antecedence. The incapacity takes its roots prior to the marriage although its overt manifestations appear only subsequent thereto.
3. Incurability. The party is without sufficient means, material or otherwise, to remedy such incapacity.
There are neither exact descriptions nor examples of psychological incapacity. The drafters of the Family Code of the Philippines desire to provide the courts much leeway in its interpretation. They intend said interpretations to be on a case-to-case basis and guided by the following factors: a) experience; b) the findings of experts and researchers in psychological disciplines; and c)by decisions of Church tribunals, which although not binding, are nevertheless persuasive (ibid.,43)
Indications of a person with Psychological Incapacity
Despite the relative interpretation accorded to psychological incapacity, Dr. Veloso lays down a few instances indicative of said disorder, namely (ibid., 44-45):
a) homosexuality in men or lesbianism in women (attachment to the same sex for sexual fulfillment);
b) satyriasis in men or nymphomania in women ( excessive and promiscuous sex hunger);
c) extremely low intelligence;
d) immaturity, i.e. lack of an effective sense of rational judgment and responsibility, otherwise peculiar to infants ( like refusal of the husband to support the family or excessive dependence on parents or peer group approval);
e) epilepsy, with permanently recurring mal-adaptive manifestations;
f) habitual alcoholism, or the condition by which a person lives for the next drink and the next drink and the next drink; and
g) criminality, or the condition by which a person consistently gets in trouble with the law or with socially established norms of conduct.
In addition, retired Court of Appeals Associate Justice Alicia V. Sempio-Diy reveals in her book, Handbook on the Family Code of the Philippines that Father Healy and another expert on church annulments, Archbishop Oscar Cruz, elucidate the following manifestations as additional indicators (ibid., 45):
a) the refusal of the wife to dwell with the husband after the marriage without fault on the part of the latter; or to have sex with the husband; or to have children;
b) when either party or both of them labor under an affliction that makes common life as husband and wife impossible or unbearable such as compulsive gambling; or unbearable jealousy on the part of one party or other psychic or psychological causes of like import and gravity; and
c) manifestations of sociopathic anomalies in husbands like sadism or infliction of physical violence on the wife; constitutional laziness or indolence; drug dependence or addiction; or some kind of psychosexual anomaly
Indeed, psychological incapacity is a disorder difficult to prove. Its general characteristics must first be clearly manifest before it can be used as a ground in severing marital relations.
Concept of Bigamy
Concept of Bigamy
WHAT IS BIGAMY UNDER PHILIPPINE LAW?
Elements of Bigamy
The Revised Penal Code of the Philippines, particularly, Article 349, elucidates the following elements of the crime of bigamy:
A person contracts a second or subsequent marriage;
A former marriage exists which has not yet been legally dissolved, or in case of an absent spouse, he or she has not yet been declared presumptively dead by a judgment rendered in the proper proceedings.
It is clear from the above provision that bigamy is committed by the mere act of contracting a second marriage while a first valid marriage subsists. A marriage remains valid as long as there is no court judgment either annulling the same or declaring its nullity. Therefore, even if married partners have strong grounds for either annulment or the declaration of nullity of the marriage, they must still seek redress from the courts in order to sever the marriage bonds.
In the recent case of Victoria Jarillo vs. People, G.R. No. 164435, September 29, 2009, the Philippine Supreme explained the reason behind the need for a prior judicial declaration before the dissolution of the marriage by citing its ruling in the case of Marbella-Bobis v. Bobis, to wit:
x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. xxx
With this, an issue arises on whether a declaration of nullity of the two marriages–the first and the second, results to an acquittal of the spouse simultaneously charged with bigamy. The High Court explains in the above-cited case of Jarillo vs. People the solution to said issue in this wise:
The subsequent judicial declaration of nullity of petitioners two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, petitioners marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of petitioners marriage to Uy make any difference. As held in Tenebro, since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x
Indeed, Philippine laws are strict in the requirements for the dissolution of marriages since it adheres to the view of marriage as the foundation of the family–a basic social institution.
WHAT IS BIGAMY UNDER PHILIPPINE LAW?
Elements of Bigamy
The Revised Penal Code of the Philippines, particularly, Article 349, elucidates the following elements of the crime of bigamy:
A person contracts a second or subsequent marriage;
A former marriage exists which has not yet been legally dissolved, or in case of an absent spouse, he or she has not yet been declared presumptively dead by a judgment rendered in the proper proceedings.
It is clear from the above provision that bigamy is committed by the mere act of contracting a second marriage while a first valid marriage subsists. A marriage remains valid as long as there is no court judgment either annulling the same or declaring its nullity. Therefore, even if married partners have strong grounds for either annulment or the declaration of nullity of the marriage, they must still seek redress from the courts in order to sever the marriage bonds.
In the recent case of Victoria Jarillo vs. People, G.R. No. 164435, September 29, 2009, the Philippine Supreme explained the reason behind the need for a prior judicial declaration before the dissolution of the marriage by citing its ruling in the case of Marbella-Bobis v. Bobis, to wit:
x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. xxx
With this, an issue arises on whether a declaration of nullity of the two marriages–the first and the second, results to an acquittal of the spouse simultaneously charged with bigamy. The High Court explains in the above-cited case of Jarillo vs. People the solution to said issue in this wise:
The subsequent judicial declaration of nullity of petitioners two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, petitioners marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of petitioners marriage to Uy make any difference. As held in Tenebro, since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x
Indeed, Philippine laws are strict in the requirements for the dissolution of marriages since it adheres to the view of marriage as the foundation of the family–a basic social institution.
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