Sunday, June 21, 2009

Happy Fathers’ Day!

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

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

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

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

Tough and Tender

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

[1] The Decision Maker

[2] The Spiritual leader

[3] The Exceptional Listener

[4] The Wise Gentleman

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

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

In her last chapter (“A Most Unlikely Man”), Landorf enumerates several processes necessary for a man to grow into the man God intends him to be. These are:
[1] You may need a realignment of attitudes.

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

[3] You may need to make a commitment to effort.
Well, we’ve heard from women what they want from us men. Perhaps it’s time now for women to listen how men think of themselves, how men really are, or simply, what makes men tick, so to speak.

Wild at Heart

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

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

[2] An adventure to live

[3] A beauty to rescue
Eldredge is a superb writer, in the class of Philip Yancey. Four lines from his book which are worth the price of the book (quite expensive at almost four hundred pesos) are the following:
[1] Page 62: “Masculinity is bestowed.”

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

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

[4] Page 211: “… The most terrifying question any man ever asks his woman: ‘What’s wrong?” After that it’s all mystery. A woman doesn’t want to be related to with formulas, and she certainly doesn’t want to be treated like a project that has answers to it. She doesn’t wan to be solved; she wants to be known.”
What eloquent words can I use to say that Eldredge is a great writer? Hmm, maybe “WOW!” would best sum it all up.

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

The Man in the Mirror

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

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

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

Morley in his book discusses issues and problems that men struggle with. He answers the questions “Why do men think the things they think, say the things they say, and do the things they do?” Whether you’re a man or a woman, you will learn a lot from Morley’s discussion of the following issues:
[1] The Rat Race
[2] Leading an Unexamined Life
[3] Biblical Christian or Cultural Christian?
[4] Significance: The Search for Meaning and Purpose
[5] Purpose: Why Do I Exist?
[6] The Secret of Job Contentment
[7] Broken relationships
[8] Children: How to Avoid Regrets
[9] Wives: How to be Happily Married
[10] Friends: Risks and Rewards
[11] Money: A Biblical Point of View
[12] The Four Pillars of Financial Strength
[13] Decisions: How to Make the Right Choice
[14] Priorities: How to Decide What’s Important
[15] Time Management: Doing God’s Will
[16] Pride
[17] Fear
[18] Anger
[19] The Desire to be Independent
[20] Avoiding Suffering
[21] Integrity: What’s the Price?
[22] Leading a Secret Thought Life
[23] Accountability: The Missing Link
[24] How Can a Man Change?
Four Pillars of a Man’s Heart
The gender issues facing us today are primarily spiritual and theological at their core. Everything we do as humans is influenced strongly by our gender realities. Gender is a very basic element in dealing with our identity. In his or her soul, every human being asks a few basic questions: Who am I? Am I loved? Am I good or bad? Am I a boy or a girl – a man or a woman?
These lines are from Stu Webber’s book, “Four Pillars of a Man’s Heart” (copyright 1997; Multnomah Books; published in the Philippines by OMF Literature Inc). Webber is definitely a man’s man – he became an Airborne Ranger and then fought in the Vietnam War as one of the tough and elite Green Berets of the 5th US Special Forces. In one occasion, crunched inside a foxhole waiting to engage the Vietcong in bloody battle, Webber surrendered his life to God in full-time ministry.

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

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

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

[4] Friend – connects; core characteristic – connects deliberately
Citing Gillette and Moore, Webber in page 62 says that the common results in a man when a pillar is leaning, absent or abused are:
[1] King becomes either an abdicator or a tyrant, resulting in disorder and chaos, family dysfunction, and oppression;

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

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

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

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

Let’s hear it for the women!

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

[1] Read, learn, apply and learn.
[2] Love unconditionally.
[3] Listen intently.
[4] Don’t expect him to meet all your emotional needs.
[5] Understand the power you have.
[6] See your husband as God’s gift to you.
[7] Appreciate the little things he does, as well as the “big” things.
[8] Give him some space.
[9] Physically appreciate him
[10] Follow his leadership.
[11] See your marriage as a journey, not a destination.
Well, ladies, there you have it, the keys to understanding the man in your life, from men about men, for men and women ... Happy Father's Day!

Saturday, June 20, 2009

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

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

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

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

What government offices and agencies does RA 9485 cover?

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

What are considered simple transactions?

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

What are considered complex transactions?

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

What are frontline services?

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

What does action mean?

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

Who are officers or employees?

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

What are irrelevant requirements?

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

Who are considered as fixers?

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

What is reengineering of systems and procedures under RA 9485?

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

What is the Citizen's Charter?

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

(a) The procedure to obtain a particular service;
(b) The person/s responsible for each step;
(c) The maximum time to conclude the process;
(d) The document/s to be presented by the customer, if necessary;
(e) The amount of fees, if necessary; and
(f) The procedure for filing complaints.
Who is responsible for the implementation of RA 9485?

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

What are the procedures for the accessing frontline services?

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

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

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

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

(2) No application or request shall be returned to the client without appropriate action. In case an application or request is disapproved, the officer or employee who rendered the decision shall send a formal notice to the client within five working days from the receipt of the request and/or application, stating therein the reason for the disapproval including a list of specific requirement/s which the client failed to submit.
(c) Denial of Request for Access to Government Service - Any denial of request for access to government service shall be fully explained in writing, stating the name of the person making the denial and the grounds upon which such denial is based. Any denial of request is deemed to have been made with the permission or clearance from the highest authority having jurisdiction over the government office or agency concerned.

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

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

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

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

What is automatic extension of permits and licenses?

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

What is the Report Card Survey?

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

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

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

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

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

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

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

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

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

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

(6) Imposition of additional irrelevant requirements other than those listed in the first notice.
Penalties for light offense shall be as follows:
First Offense - Thirty (30) days suspension without pay and mandatory attendance in Values Orientation Program;

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

Third Offense - Dismissal and perpetual disqualification from public service.
(b) Grave Offense - Fixing and/or collusion with fixers in consideration of economic and/or other gain or advantage.

Penalty - Dismissal and perpetual disqualification from public service.

What is the criminal liability for fixers?

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

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

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

Which government agency has jurisdiction under RA 9485?

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

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

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

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

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

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

(e) Said respondent/accused-informant does not appear to be the most guilty.
Evidence adduced in support of the discharge shall automatically form part of the records of the investigation. Should the investigating body or court deny the motion or request for discharge as a witness, his/her sworn statement shall be inadmissible as evidence.

Thursday, May 28, 2009

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

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

Prohibited defense under RA 9262

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

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

“Persona non grata” resolutions against Hayden

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

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

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

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

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

Wednesday, May 20, 2009

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

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

Employment of Househelpers

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

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

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

Art. 143. Minimum wage.

Househelpers shall be paid the following minimum wage rates:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Art. 152. Employment record. The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer.
Pending Senate bills: “Batas Kasambahay” or “Magna Carta for Household Helpers”

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

[1] SBN-1631: Magna Carta of Household Helpers' or 'Batas Kasambahay'
An Act Providing for the Magna Carta of Household Helpers Filed on September 20, 2007 by Miriam Defensor-Santiago
[2] SBN-1141: Magna Carta of Household Helpers
An Act Instituting Policies Governing the Household Employment Industry, Establishing a Standard of Protection and Promoting the Welfare of Household Helpers Filed on July 4, 2007 by Aquilino Q. Pimentel Jr.
[3] SBN-77: Magna Carta of Household Helpers (Batas Kasambahay)
An Act Instituting Regulatory Policies for the Household Employment Industry, Establishing Standards of Protection and Promotion of Their Welfare and of Their Families, Amending for the... Filed on June 30, 2007 by Loren B. Legarda
Sen. Many Villar has also filed Senate Bill 2275 seeking to increase the minimum wage to P1,200 in Metro Manila; P950 in chartered cities and first-class municipalities; and P750 in other municipalities.

Features of Loren’s bill

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

Notarized job contract

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

13th month pay, Philhealth coverage

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

10 hours of work maximum per day

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

14 days annual vacation leave with pay

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

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

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

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

Friday, April 24, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 22, 2009

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

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

Please take note:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 20, 2009

Free concert for the benefit of street children

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

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

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

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

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

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

Saturday, April 18, 2009

50,000 visitors and counting: Thanks to everyone who have browsed this blog

I started this blog October 30, 2005 and early morning today, my website tracker (www.sitemeter.com) reported that some 50,000+ visitors from 76 countries have now browsed this site. With an average of 120+ visitors a day, this blog will have over 36,000 visitors this year.

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

The service I provide in this blog and in my Family Matters website (currently offline) is free legal information and Biblical counseling. As I told one person who e-mailed me, what is legal is not always Biblical, and what is Biblical is not always legal. In my website and blogs however, what is Biblical will always take precedence.

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

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

Two, there are more people who visit this blog rather than my Salt and Light blog on how to build strong relationships, marriages and families. Compared to this blog, my SL blog is limping along with only 15,000+ visitors since December 2005. It seems that there are more people who want to know about how to end their marriage than people concerned about building stronger marriages.

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

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

Friday, April 03, 2009

The Internet, chat rooms and marital infidelity

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

Profile of Filipino users of the Internet

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

If you want to learn more about how the Internet is impacting society, please read “
The Psychology of Cyberspace” by John Suler, Ph.D. Department of Psychology, Science and Technology Center, Rider University. Among Suler’s interesting articles are:
  • The Online Disinhibition Effect: While online some people open up to reveal all sorts of personal feelings and thoughts. Others act out inappropriately in ways they never would in-person. This article explains six factors that contribute to this "disinhibition" effect: dissociative anonymity, invisibility, asynchronicity, solipsistic introjection, dissociative imagination, and minimizing authority, as well as how online disinhibition and suspicion are related to the altering of self-boundary. This revision includes a section about whether the "true self" appears online as a result of disinhibition.

  • The Basic Psychological Features of Cyberspace: These features can make online encounters very different than those in the "real" world: reduced sensations, texting, identity flexibility, altered perceptions, equalized status, transcended space, temporal flexibility, social multiplicity, recordability, media disruption . This revision mentions current communication technologies and emphasizes these psychological features as elements of a conceptual model for a psychology of cyberspace.

  • The Final Showdown Between In-Person and Cyberspace Relationships: We develop relationships by hearing, seeing, feeling, intuiting, even smelling and tasting (!) each other. Cyberspace and in-person encounters can be quite different on these dimensions of relating. Those differences have a dramatic effect on friendships and romances. This revision includes minor modifications throughout the article, as well as a new section on defending text and the body.

  • Do Boys Just Wanna Have Fun?: Gender-Switching in Cyberspace: Why do people switch their gender in cyberspace? Is it possible to detect someone who is faking his gender?

  • Mom, Dad, Computer: Transference Reactions to Computers: People may not even realize it, but they may be reacting to their computer as if it is their mother, father, or sibling. This article explores the various twists and turns in people's transference reactions to computers and cyberspace.

  • The Black Hole of Cyberspace: The internet is supposed to respond to us. But sometimes it doesn't. When we receive no reply (especially to an e-mail message), that black hole can draw out of us all sorts of anxieties and insecurities.

  • Transient and Long Term Online Relationships: The interactive power of the internet gives everyone an opportunity to meet people - sometimes in transient encounters, sometimes in long term friendships and romances.
Bored, lonely housewives and the temptations of online affairs

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

Probe Ministries, in an article by Kerby Anderson, points out a danger that lonely and bored housewives are falling into, that is, online affairs or the allure of cyber-relationships. I have provided emphasis by boldfacing and sub-headings to Anderson's article:
Peggy Vaughn is the author of “The Monogamy Myth” and also serves as an expert for America Online on problems caused by infidelity. She predicts that one “role of the Internet in the future will be as a source of affairs.” She is writing a second book on the subject of adultery and says she could base half of it just on the letters she receives from people who started an affair online.

What is an online affair?

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

How women get caught up in online affairs

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

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

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

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

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

  • Seeking or accepting frequent praise or affirmation from the same man

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

  • Intentionally seeking out time to be with this man

  • Manipulating your schedule to see him

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

Thursday, March 19, 2009

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

Through an e-mail, I was informed of some confusion in the amount of inheritance an illegitimate child is supposed to get from his biological father or mother. There are some blogs and websites which say that an illegitimate child will get as inheritance exactly what a legitimate child will get. This is totally erroneous because of the clear wording of Article 176. The said articles states:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (As amended by Republic Act 9255, approved February 24,2004; emphasis by boldfacing supplied)
What does the last sentence of Article 176 clearly say? “The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.” So how come these blogs and websites say that an illegitimate child will get exactly what a legitimate child will get by way of inheritance?

The books on civil law by the late Justice Edgardo L. Paras are still the premier textbooks for law students and lawyers. In his Pre-Week Handbook on Civil Law (pages 274 and 275, 1989 Edition), Justice Paras gives an example of how to compute the legitimes of legitimate and illegitimate children:
Special Rule If Legitimate and Illegitimate Children Survived Together, With or Without the Surviving Spouse

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

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

Examples

Intestate Estate = Php 15,000.00

Survivors: 1 leg- child, 1 illegitimate child

Give their intestate shares.

ANS. Apply 10, 5

I legitimate child = 10 shares

1 illegitimate child = 5 shares

Total: 15 shares

15 shares = Php 15,000.00

1 share = Php 1,000.00

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

1 illegitimate child = 5 (PI ,000.00) = Php 5,000.00
An algebraic way of presenting the example of Justice Paras is this: Let X be the amount of legitime for the legitimate child and X/2 be the legitime of the illegitimate child.
X + X/2 = Php 15,000.00

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

3X/2 = Php 15,000.00

3X = Php 30,000.00

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

x/2 = Php 5,000.00 (the share of the illegitimate child)
Let’s say that the heirs are the surviving spouse, three legitimate children and one illegitimate child. Let’s say the estate (the totality of the property left by the deceased spouse) is Php 200,000.00. First of all, deduct 50% or Php 100,00.00 as the surviving spouse's share in the conjugal property. The remaining Php 100,000.00 will then be divided among the heirs (the surviving spouse is counted as one child).

The solution goes like this:
Let X be the amount of legitime for each of the legitimate children and the surviving spouse.

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

4X + X/2 = Php 100,000.00

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

9X/2 = Php 100,000.00

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

X/2 = Php 11,111.11 (the share of the illegitimate child in view of Article 176)
Back in the early 1970’s, I lost my NSDB science scholarship in UP Diliman because I failed Physics 41 and Engineering Science I, and barely passed Math 17. If you think my mathematical solutions are wrong, hey, feel free to comment!

Wednesday, March 04, 2009

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

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

Dissolution of Absolute Community Regime

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

Liquidation of the Absolute Community Assets and Liabilities


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

Dissolution of Conjugal Partnership of Gains

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

Liquidation of the Conjugal Partnership Assets and Liabilities

Article 129 Steps in liquidating the CPG
Article 130 Liquidation of CPG upon death of either spouse
Article 131 Liquidation of CPG properties of two or more marriages
Article 132 Applicability of Rules of Court
Article 133 Support during liquidation of CPG
What happens to the conjugal property if a marriage is declared null and void?

Please take note that annulment refers to voidable marriages, while declaration of nullity refers to void marriages. When a marriage is annulled or declared null and void, the Supreme Court Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages provides in Section 21 that:
Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes.

Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.
Articles 50 and 51 of the Family Code mentioned above state:
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.

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

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

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

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

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

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

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

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

Here’s an interesting way of dividing the conjugal property

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

Wednesday, February 04, 2009

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

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

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

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

Highlights of the Court’s decision

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

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

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

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

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

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

Safeguards against the violation of rights of students and employees

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

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

Saturday, January 31, 2009

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

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

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

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

In case Rowena dies, who will inherit her estate? Josefa alone? Or Josefa jointly with the children of Rowena’s deceased brothers and sisters (meaning the nephews and nieces)?
If a person dies without a spouse, parents, legitimate or illegitimate children, then the collateral relatives (brothers and sisters, nephews and nieces) will inherit

Articles 1003 to 1010 are the NCC's governing rules on the right of collateral relatives to inherit:
Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

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

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

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

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

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

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

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

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.
The “iron barrier” between the legitimate and illegitimate sides of the family

Please take note however of Article 992 of the New Civil Code of the Philippines which states:
An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.
This is known as the “iron barrier” which separates the legitimate and illegitimate sides of a family. Thus, in the example I cited at the top of this post, if the nephews and nieces are illegitimate, then they are prohibited by Article 992 from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents.

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

Right of representation

Coming back to the question posted above, can these nephews and nieces whose parents predeceased (died before) their aunt Rowena died have the right to inherit from her? The legal issue here is the right of representation which is governed by Articles 970 to 977 of the New Civil Code of the Philippines (NCC). Let’s take note first of Article 1025 NCC which states:
“In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41.”
There is some confusion on this issue because of the wording of Article 1025. A lot of lawyers will tell you that these nephews and nieces do not have the right to inherit since their parents PREDECEASED the aunt. These lawyers will emphasize the phrase "no exception" as discussed in the book “Civil Code of the Philippines Annotated, Volume III, Wills and Succession” by Justice Edgardo Paras. As Justice Paras says in page 474 of his book, “Even in case of representation, the representative must already be alive or at least conceived at the time the succession opens. He himself must be capable of succeeding the decedent.” Also civil law expert Desiderio P. Jurado says in pages 480 and 481 of his book “Comments and Jurisprudence on Succession” that “it is essential that the representative must be living at the moment the succession opens.”

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

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

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

Per stirpes and per capita division of the inheritance

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

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

Grandnephews and grandnieces cannot inherit by right of representation

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

Wednesday, January 21, 2009

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

ChristianPhotos.Net - Free High Resolution Photos for Christian PublicationsThe Family Code establishes the legitimacy of a child born during a marriage. Thus, Articles 164 and 167 provide that:

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

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

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

Article 166 of the Family Code provides for the grounds for impugning (questioning) the legitimacy of a child:
Art. 166. Legitimacy of a child may be impugned only on the following grounds:

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

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

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

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

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

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.
Periods within which to question the legitimacy of a child; who may question legitimacy

Articles 170 and 171 provide for the periods within which the court action for questioning the legitimacy of a child should be filed and the parties who can file such action:
Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

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

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

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

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

(3) If the child was born after the death of the husband.
Can the action to question the legitimacy of a child be filed beyond the periods provided by Article 170?

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

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

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

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

Facts of the case

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

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

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

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

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

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

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

Teofista, on the other hand, countered that:

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

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

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

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

Ruling of the Court of Appeals

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

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

Ruling of the Supreme Court (excerpts)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 06, 2009

Sexual infidelity or promiscuity does not constitute psychological incapacity

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

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

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

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

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


Facts of the case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 23, 2008

What was the Star of Bethlehem?

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

Monday, December 15, 2008

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

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

The facts of the case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All’s well that ends well

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

Wednesday, December 10, 2008

Rights and obligations of husbands and wives from the Biblical standpoint and the Family Code of the Philippines

Click here to go to Dannah’s Purefreedom website. I gave a copy of this book to the love of my life as a graduation gift March 2007. She is the second most beautiful woman in the universe. Who’s the most beautiful woman in the universe? Who else but movie actress Angel Locsin!The Family Code mentions the word “love” only twice and the first mention of the word is found in Title III which covers Articles 68 up to 73. The second mention of the word “love” is in Article 220 which states the rights and duties of parents towards their unemancipated children. Paragraph (2) of the said article states that among the duties of parents towards their children is “to give them love and affection, advice and counsel, companionship and understanding.”

Anyway, let’s proceed from this romantic, mushy (this is redundant, right?) stuff about “love” and get on with the nitty-gritty details of the rights and obligations between husbands and wives. As “Insight for Living” Bible teacher Chuck Swindoll once said, “The basis of a good marriage is not love; it is commitment.” What he's saying is that love is not a matter of the emotions, but of the will, of volition (this is really redundant, right?) You might want to review my article "Love Potion No. 9" where I wrote about dopamine, oxytocin and vasopressin. These chemicals produced by the human body and which some people have termed as the “cuddle chemicals” are believed responsible for that mysterious thing called love.

After the Family Code primer immediately below, I will discuss what the Bible says about rights and duties of husbands and wives, okay?

What are the rights and obligations of spouses under the Family Code?

The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (Art. 68, Family Code of the Philippines)

What if one spouse refuses to comply with his or her marital obligations as provided under Art. 68, can the offended spouse legally compel him to come home and comply with such obligations?

The Supreme Court in the case of Ilusorio vs. Ilusorio-Bildner (G.R. No. 139789 July 19, 2001 and G.R. No. 139808 July 19, 2001) stated among other things that “consortium” or “coverture” (the obligation to, live together, observe mutual, respect and fidelity) is prompted by the spontaneous, mutual love and affection between husband and wife and cannot be enforced by any legal mandate or court order.

The Ilusorio decision written by Justice Pardo revolved around this issue: “May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.”

The Supreme Court as a final note in the Ilusorio decision stated, “No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.”

Who shall decide on the family domicile?

The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. (Art. 69)

Article 68 states that the spouses are obliged to live together. Are there exceptions?

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (2nd paragraph, Art.69)

Who is responsible for the support of the family?

The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. (Art. 70)

Who shall manage the household?

The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70.

What if the husband or the wife neglects his or her duties to the family?

When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (Art. 72)

Under RA 9262 or the “Anti-Violence Against Women and their Children Act of 2004”, the wife can petition the Family Court where she resides for a Protection Order.

Can the wife exercise her profession or engage in business even without the permission of her husband?

Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. (Art.73)

What if there is disagreement between the spouses?

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper; and

(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.
If the husband refuses unjustifiably to allow his wife to exercise her profession or engage in business, what are the rights of the wife?

RA 9262, under paragraph (4) of Section 5 lists this situation as a act of violence against a woman. The said paragraph penalizes the man (husband or live-in partner) if he “prevents the woman from engaging in any legitimate profession, occupation, business or activity or controls the victim's own money or properties, or solely controls the conjugal or common money, or properties.”

Ptr. Alen and Sis. RuthRights and obligations of husbands and wives
from the Biblical standpoint


Ephesians 5:21 up to 33 outline the rights and obligations of husbands and wives:

21. Submitting yourselves one to another in the fear of God.
22. Wives, submit yourselves unto your own husbands, as unto the Lord.
23. For the husband is the head of the wife, even as Christ is the head of the church: and he is the saviour of the body.
24. Therefore as the church is subject unto Christ, so let the wives be to their own husbands in every thing.
25. Husbands, love your wives, even as Christ also loved the church, and gave himself for it;
26. That he might sanctify and cleanse it with the washing of water by the word,
27. That he might present it to himself a glorious church, not having spot, or wrinkle, or any such thing; but that it should be holy and without blemish.
28. So ought men to love their wives as their own bodies. He that loveth his wife loveth himself.
29. For no man ever yet hated his own flesh; but nourisheth and cherisheth it, even as the Lord the church:
30. For we are members of his body, of his flesh, and of his bones.
31. For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh.
32. This is a great mystery: but I speak concerning Christ and the church.
33. Nevertheless let every one of you in particular so love his wife even as himself; and the wife see that she reverence her husband.
I Peter 3: 1-12 also state the rights and duties of husbands and wives toward each other:

1. Likewise, ye wives, be in subjection to your own husbands; that, if any obey not the word, they also may without the word be won by the conversation of the wives;
2. While they behold your chaste conversation coupled with fear.
3. Whose adorning let it not be that outward adorning of plaiting the hair, and of wearing of gold, or of putting on of apparel;
4. But let it be the hidden man of the heart, in that which is not corruptible, even the ornament of a meek and quiet spirit, which is in the sight of God of great price.
5. For after this manner in the old time the holy women also, who trusted in God, adorned themselves, being in subjection unto their own husbands:
6. Even as Sara obeyed Abraham, calling him lord: whose daughters ye are, as long as ye do well, and are not afraid with any amazement.
7. Likewise, ye husbands, dwell with them according to knowledge, giving honour unto the wife, as unto the weaker vessel, and as being heirs together of the grace of life; that your prayers be not hindered.
8. Finally, be ye all of one mind, having compassion one of another, love as brethren, be pitiful, be courteous:
9. Not rendering evil for evil, or railing for railing: but contrariwise blessing; knowing that ye are thereunto called, that ye should inherit a blessing.
10. For he that will love life, and see good days, let him refrain his tongue from evil, and his lips that they speak no guile:
11. Let him eschew evil, and do good; let him seek peace, and ensue it.
12. For the eyes of the Lord are over the righteous, and his ears are open unto their prayers: but the face of the Lord is against them that do evil.
In the area of relationships and marriage, there cannot be a more explosive and divisive issue than that of the headship of men and the submission of women. Sometime in the late 1990’s, I think, the Southern Baptist Convention issued an official statement asking women to “graciously submit” to their husbands. Needless to say, that statement was greeted with controversy, scorn and ridicule from different sectors and even from within the Convention itself. Feminist groups have been saying all these time that the Biblical injunction for women to submit to their husbands is an open invitation for spousal abuse.

If you want a thorough discussion of the Biblical doctrines of the headship of men and the submission of women, I recommend the following books to you:
[1] “Strike the Original Match” by Chuck Swindoll; Multnomah Press © 1980; specifically the chapters entitled “Let’s Repair the Foundation” and “Bricks that Build a Marriage.”

[2] “The Grace Awakening” also by Chuck Swindoll; Word Publishing, ©1996; specifically the chapter entitled “A Marriage Oiled by Grace”

[3] “Together Forever” by Anne Kristin Caroll; Zondervan, © 1982 by Barbara J. Denis); specifically the chapter entitled “Who Wears the Pants?”

[4] “Rocking the Roles” by Robert Lewis and William Hendricks; NavPress, ©1991; specifically the chapters entitled “The ‘S’ Word” and “The Masculine Counterpart to the ‘S’ Word.”
I have previously written about the headship of men and the submission of women, and you might want to re-read it. Part of that article reads as follows:

Lewis and Hendricks, while maintaining the traditional view of the headship of men and the submission of women, clarify however that submission is not a wife’s role. Rather, they say, submission is the wife’s loving response to her husband’s loving and sacrificial headship.

“Roles” and ‘responses” may sound like only semantics to you, but I encourage you to read “Rocking the Roles.” The most striking statement in this book about submission is found in page 135: “A biblically submissive wife’s focus is not on enabling wrong behavior, but in empowering her husband to pursue right behavior – to become the man God wants him to be, and the leader God wants him to be.”

I remember something Dr. James Dobson wrote in his classic book (highly recommended!) “Love Must Be Tough” about submission. Dobson said, “Being a spiritually submissive wife doesn’t mean being a doormat.”

Caroll, who writes her book out of the crucible of the pain of her divorce (and remarriage to the same guy) says on page 126, “Submission is freedom.”
During the wedding reception of a Filipino missionary couple bound for a Creative Access Nation, the groom wished out loud that his wife would submit to him. That brought about a lot of laughter among the guests. Well, Sir, please do keep in mind Lewis and Hendricks’ definition of submission and I’m sure your marriage will turn out okay. What’s their definition again? “A biblically submissive wife’s focus is not on enabling wrong behavior, but in empowering her husband to pursue right behavior – to become the man God wants him to be, and the leader God wants him to be.”

Monday, November 03, 2008

Property rights of foreigners married to Filipino citizens; Can foreigners own land and other real properties in the Philippines?

The Supreme Court in the August 2006 case of Elena Buenaventura Muller vs. Helmut Muller, G.R. No. 149615, clarified the issue of ownership of houses and lands by foreigners married to Filipino citizens. Before discussing this case, however, let’s have a brief overview:

What is the Constitutional provision on foreign ownership of land in the Philippines?

Section 7, Article XII of the 1987 Constitution states:

Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.
The rule clearly therefore is that aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain. Hence, they are also disqualified from acquiring private lands.

What is the purpose for this Constitutional prohibition?

The primary purpose of the Constitutional provision is the conservation of the national patrimony. In the classic case of Krivenko v. Register of Deeds, the Supreme Court held:

Under section 1 of Article XIII of the Constitution, "natural resources, with the exception of public agricultural land, shall not be alienated," and with respect to public agricultural lands, their alienation is limited to Filipino citizens. But this constitutional purpose conserving agricultural resources in the hands of Filipino citizens may easily be defeated by the Filipino citizens themselves who may alienate their agricultural lands in favor of aliens. It is partly to prevent this result that section 5 is included in Article XIII, and it reads as follows:

"Sec. 5. Save in cases of hereditary succession, no private agricultural land will be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines."

This constitutional provision closes the only remaining avenue through which agricultural resources may leak into aliens' hands. It would certainly be futile to prohibit the alienation of public agricultural lands to aliens if, after all, they may be freely so alienated upon their becoming private agricultural lands in the hands of Filipino citizens.
Does the term “private agricultural lands” exclude residential lots from the prohibition?
If the term “private agricultural lands” is to be construed as not including residential lots or lands not strictly agricultural, the result would be that “aliens may freely acquire and possess not only residential lots and houses for themselves but entire subdivisions, and whole towns and cities,” and that “they may validly buy and hold in their names lands of any area for building homes, factories, industrial plants, fisheries, hatcheries, schools, health and vacation resorts, markets, golf courses, playgrounds, airfields, and a host of other uses and purposes that are not, in appellant's words, strictly agricultural.” That this is obnoxious to the conservative spirit of the Constitution is beyond question.

What are the exceptions to the restriction on foreigners’ acquisition of land in the Philippines?

[1] Purchase by a former natural-born Filipino citizen subject to the limitations prescribed by Batas Pambansa 185 and R.A. 8179
[2] Acquisition before the 1935 Constitution
[3] Purchase of not more than 40% interest in a condominium project
[4] Acquisition through hereditary succession if the foreigner is a legal or natural heir
What are the limitations on land ownership by former Filipino citizens?

Before the enactment of Republic Act 9225 (Citizenship Retention and Re-acquisition Act of 2003), Filipinos who were naturalized as U.S. citizens were deemed to have lost their Filipino citizenship.

Under RA 9255, former Filipinos who became naturalized citizens of foreign countries are deemed not to have lost their Philippine citizenship. Thus they can enjoy all the rights and privileges of a Filipino regarding land ownership in the Philippines.

If a former Filipino who is now a naturalized citizen of a foreign country does not want however to avail of the Dual Citizen Law in the Philippines, he or she can still acquire land based on BP (Batas Pambansa) 185 and RA (Republic Act) 8179 but subject to the following limitations:

For residential use (BP 185 enacted in March 1982): Up to 1,000 square meters of residential land, and pp to one (1) hectare of agricultural of farm land

For business / commercial use (RA 8179 which amended the Foreign Investment Act of 1991): Up to 5,000 square meters of urban land, and p to three (3) hectares of rural land
Can foreigners own condominium units or corporations?

The Condominium Act of the Philippines, R.A. 4726, expressly allows foreigners to acquire condominium units and shares in condominium corporations provided that the total controlling interest of foreigners in the condominium project does not exceed 40 percent. (Condominium owners have exclusive rights over the space “encompassed by the walls, ceilings, and floors” of their units but are only co-owners of the common areas, such as the hallways, lobbies, entrances and exits, and parking bays.)

What is meant by ownership on the basis of hereditary succession?

When the foreigner is married to a Filipino citizen, and the spouse dies, the non-Filipino as the natural heir will become the legal owner of the property. Children, as legal heirs, may also own real property. Every natural child, legitimate or illegitimate can inherit real property even if he or she does not hold Filipino citizenship.
Filipinos who are naturalized as U.S. citizens lose their Filipino citizenship. Despite the loss of citizenship, they remain eligible to acquire real property in the Philippines by hereditary succession. Children born to them in the U.S. are also eligible to inherit real property even if they are U.S. citizens.

Please take note however that ‘hereditary succession” refers to intestate succession wherein the person dies without leaving a last will and testament. Transfer of ownership of land cannot be done through a last will and testament.

What are the property rights of a foreigner married to a Filipino citizen?

1. The foreigner can legally own a house or building in the Philippines as long as he or she does not own the land on which the structure is built. For this purpose, the documents like Deed of Sale can contain the name of the foreigner-spouse, except for the title. (Please take note of the Muller case which we will discuss below.)

2. When the foreigner is married to a Filipino citizen, and the spouse dies, the non-Filipino as the natural heir will become the legal owner of the property.

One website states that “in the event of death of the Filipino spouse, the foreign spouse is allowed a reasonable amount of time to dispose of the property and collect the proceeds or the property will pass to any Filipino heirs and or relatives.” I cannot however find any RA or PD or Department of Justice opinion which backs up this assertion. The Constitutional provision is clear that the foreigner-spouse, in the event of death of the Filipino spouse, has the legal right to own the property.

The facts of the Muller case and the Supreme Court decision

1. Petitioner Elena Buenaventura Muller (“Elena” for brevity) and respondent Helmut Muller (“Helmut” for brevity) were married in Hamburg, Germany on September 22, 1989. The couple resided in Germany at a house owned by respondent's parents but decided to move and reside permanently in the Philippines in 1992. By this time, Helmut had inherited the house in Germany from his parents which he sold and used the proceeds for the purchase of a parcel of land in Antipolo, Rizal at the cost of P528,000.00 and the construction of a house amounting to P2,300,000.00. The Antipolo property was registered in the name of Elena under Transfer Certificate of Title No. 219438 of the Register of Deeds of Marikina, Metro Manila.

2. Due to incompatibilities and Helmut’s alleged womanizing, drinking, and maltreatment, the spouses eventually separated.

On September 26, 1994, Helmut filed a petition for separation of properties before the Regional Trial Court of Quezon City (“RTC” for brevity).

3. On August 12, 1996, the RTC rendered a decision which terminated the regime of absolute community of property between the couple. It also decreed the separation of properties between them and ordered the equal partition of personal properties located within the country, excluding those acquired by gratuitous title during the marriage.

With regards the Antipolo property, the court held that it was acquired using Helmut’s personal funds. However, it ruled that Helmut cannot recover his funds because the property was purchased in violation of Section 7, Article XII of the Constitution. The RTC explained:

Pursuant to Article 92 of the Family Code, properties acquired by gratuitous title by either spouse during the marriage shall be excluded from the community property. The real property, therefore, inherited by Helmut in Germany is excluded from the absolute community of property of the spouses.

Necessarily, the proceeds of the sale of said real property as well as the personal properties purchased thereby, belong exclusively to Helmut. However, the part of that inheritance used by Helmut for acquiring the house and lot in this country cannot be recovered by him, its acquisition being a violation of Section 7, Article XII of the Constitution. The law will leave the parties in the situation where they are in without prejudice to a voluntary partition by the parties of the said real property.

4. Helmut appealed to the Court of Appeals (“CA” for brevity). The CA overturned the RTC decision stating that Helmut merely asked for reimbursement for the purchase of the Antipolo property, and not acquisition or transfer of ownership to him (and that therefore there was no violation of the Constitution).

The CA further said that Elena’s ownership over the property was in trust for her husband Helmut. As regards the house, the CA ruled that there is nothing in the Constitution which prohibits Helmut from acquiring it.

5. Elena then appealed to the Supreme Court (“SC” for brevity). The SC overturned the CA and thereby reinstated the decision of the RTC which was favorable to Elena.

The SC ruled that Helmut was aware of the Constitutional prohibition and expressly admitted his knowledge. He declared that he had the Antipolo property titled in Elena’s because of the said prohibition. His attempt at subsequently asserting or claiming a right on the said property cannot be sustained.

The SC also said that “the Court of Appeals erred in holding that an implied trust was created and resulted by operation of law in view of the marriage. Except for the exception provided in cases of hereditary succession, Helmut’s disqualification from owning lands in the Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of the fraud. To hold otherwise would allow circumvention of the constitutional prohibition.”

In sum, the Supreme Court ruled that, as the RTC had originally decided, Elena cannot be ordered to reimburse Helmut his money used for the purchase of the lot and the construction of the house in Antipolo.

Thursday, October 30, 2008

Please send your legal inquiries to my e-mail address rather than posting them here

For everyone: Thanks for continuing to use this blog in your search for information on the Family Code of the Philippines.

Several of my posts (like that on the Family Code primer on marriage and on adultery, concubinage and psychological violence) have however reached the Blogger limit on the number of comments. Some viewers now cannot find their posted comments or my replies. I prefer that from now on, you send your legal inquiries to my e-mail address gtgalacio@yahoo.com.