Wednesday, April 27, 2005

Legal separation

Do you want information about legal separation under Philippine law? Below are the provisions of the Family Code of the Philippines on this subject:



Art. 55. A petition for legal separation may be filed on any of the following grounds:

(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

(5) Drug addiction or habitual alcoholism of the respondent;

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

(8) Sexual infidelity or perversion;

(9) Attempt by the respondent against the life of the petitioner; or

(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)

Art. 56. The petition for legal separation shall be denied on any of the following grounds:

(1) Where the aggrieved party has condoned the offense or act complained of;

(2) Where the aggrieved party has consented to the commission of the offense or act complained of;

(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

(4) Where both parties have given ground for legal separation;

(5) Where there is collusion between the parties to obtain decree of legal separation; or

(6) Where the action is barred by prescription. (100a)

Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)

Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103)

Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n)

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a)

Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a)

Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a)

Art. 63. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;

(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and

(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)

Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a)

Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n)

Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:

(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and

(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.

The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)

Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify:

(1) The properties to be contributed anew to the restored regime;

(2) Those to be retained as separated properties of each spouse; and

(3) The names of all their known creditors, their addresses and the amounts owing to each.

The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties.

The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a)

Annulment of marriage

Many have been asking me for the grounds for annulment of marriage under Philippine Law. Here are the grounds for annulment, and time for filing annulment actions, quoted verbatim from relevant provisions of the Family Code of the Philippines:

"Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

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

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

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

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)

Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;

(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)"

Tuesday, April 26, 2005

Prayer for justice

May God bless you with discomfort at easy answers, half-truths, and superficial relationships, so that you will live deep within your heart.

May God bless you with anger at injustice, oppression and exploitation of people so that you will work for justice, equality and peace.

May God bless you with tears to shed for those who suffer from pain, rejection, starvation and war, so that you will reach out your hand to comfort them and change their pain into joy.

And may God bless you with the foolishness to think that you can make a difference in the world, so that you will do the things which others tell you cannot be done.

Author Unknown

Monday, April 25, 2005

Child abuse or child discipline?

"My husband had an electric wire at home, about three feet long. He used it like a whip whenever he wanted to discipline our children," said Cory, who came to my office for legal consultation. "When my son was in the first grade, my husband disciplined him by having him stay inside a drum for a half day," she added.

"My father told me when I was a child that my voice was ugly. Each time I sang, he made me shut up," narrated Maria, 24 years old. She has been singing with a band for four years already, and her voice was exceptionally good. But until now, when she recalled how her father put her down as a child, she still felt the pain of his words.


It is easy for us to say that the acts committed by Cory's husband are abusive. However, in Maria's situation, we would usually brush it aside as something that she should have outgrown. Yet, the fact that the emotional pain has stayed with her shows that she is likewise a victim of emotional abuse.

How then do we distinguish between child abuse and child discipline? Here are some guidelines.

(1) DOES IT CAUSE HUMILIATION?

A child is entitled to the same dignity as an adult. Yet some people treat children as though they have lesser rights to human dignity. According to the Philippine law against child abuse (Republic Act No. 7610), abuse includes "Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of the child as a human being." This is consistent with the international definition of child abuse.

When a child is humiliated publicly, it is abusive. True discipline is conducted in private, with a positive purpose and goal. According to the Los Angeles Country's Frequently asked questions about child abuse, "Discipline is designed to help children control and change their behavior. Its purpose is to encourage moral, physical and intellectual development and a sense of responsibility in children. Ultimately, older children will do the right thing, not because they fear external reprisal, but because they have internalized a standard initially presented by parents and other caretakers, and children gain self-confidence and a positive self-image."

(2) IS IT RELATED TO THE CHILD'S WRONG BEHAVIOR?

In law, there is fairness, or due process, when the penalty is commensurate to the offense. The same holds true for child discipline.

There is abuse when the punishment is out of proportion to the offense. For instance, if a child spends hours on the telephone without doing his assignment first, an appropriate penalty would be to regulate the use of the phone. It would be abusive for example to lock him up in the toilet as a punishment because this has no relation at all to the wrong-doing.

(3) IS IT IMPULSIVE AND ANGER-DRIVEN?

Discipline should be well-thought out and planned, and not the result of impulse.

Child abuse is impulsive because it is centered on the parent, not the child. It is anger-driven because the parent has not done anything, in the early stages of misbehavior, to correct it. He has waited for the wrong behavior to continue until he is too angry to rationally prevent it, and that is when he takes it out on the child.

(4) DOES IT PRODUCE PHYSICAL INJURY?

Discipline is purposeful and therefore should not produce physical injury. On the other hand, child abuse produces physical injury.

Under Philippine law, when injury is inflicted on someone, it is a crime. Injury that heals in nine days or less is considered slight physical injury, and is punishable. Surely, there are similar laws in other countries.

Consider this: if it is a crime to inflict injury on a person who is not related to you, then it is abusive to inflict physical injury upon a child even in the course of discipline.

[First published in THE SUN – Hong Kong, 2003]

All rights reserved worldwide. Copyright 2003. You may freely reprint this article as long as you don't change any of the contents, and as long as you send a copy of your reprinted article to the writer. For more information, email chato@chatoolivaslaw.com.