Understanding Family Law

UNDERSTANDING FAMILY LAW December 6, 2007 KATRINA LEGARDA

QUICK JOKE • The human brain is most outstanding. It functions 24 hours a day, 365 days a year. It functions right from the time you are born… until you decide to get married.

QUICK JOKE • The meaning of WIFE? – HUSBAND: Without Information Fighting Everytime! – WIFE: With Idiot For Ever!

THE 1987 CONSTITUTION • Sec. 12, Art. II: – The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. …

THE 1987 CONSTITUTION • Sec. 14, Art. II: – The State recognizes the role of women in nation-building and shall ensure the fundamental equality before the law of women and men.

THE 1987 CONSTITUTION • Sec. 1, Art. XV: – The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

THE 1987 CONSTITUTION • Sec. 2, Art. XV: – Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

THE 1987 CONSTITUTION • Sec. 3, Art. XV: – The State shall defend: • Right to found a family in accord with religious convictions and demands of responsible parenthood. • Right to participate in policies and programs that affect families.

Antonio vs. Reyes, 484 Scra 353 [2006] • Article 36 should be deemed as an implement of this constitutional protection of marriage. x x x there is a corresponding interest for the State to defend against marriages illequipped to promote family life.

Antonio vs. Reyes, 484 Scra 353 [2006] • Void ab initio marriages under Article 36 do not further the initiatives of the State concerning marriage and family, as they promote wedlock among persons who, for reasons independent of their will, are not capacitated to understand or comply with the essential obligations of marriage.

QUICK JOKE • A woman found a genie who granted her three wishes. Genie was told to provide all things she lacked: – Genie found that she had no food, so he gave her Jollibee. – Genie saw that she had no money, so she was given a bank. – Genie then saw that she had no problem • Genie gave her a HUSBAND.

REQUISITES FOR A VALID MARRIAGE • DIFFERENCE IN SEX - essential – See Art. 51, NCC vs. Art. 2(1), FC

Rommel Silverio vs RP, GR 174689, Oct. 22, 2007 • When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)

Rommel Silverio vs RP, GR 174689, Oct. 22, 2007 • When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

Rommel Silverio vs RP, GR 174689, Oct. 22, 2007 • Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment.

Rommel Silverio vs RP, GR 174689, Oct. 22, 2007 • Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.

Rommel Silverio vs RP, GR 174689, Oct. 22, 2007 • The words “male” and “female” in everyday understanding do not include persons who have undergone sex reassignment.

Rommel Silverio vs RP, GR 174689, Oct. 22, 2007 • The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.

Rommel Silverio vs RP, GR 174689, Oct. 22, 2007 • To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).

REQUISITES FOR A VALID MARRIAGE • SOME FORM OF CEREMONY - formal – There must be a marriage ceremony with both parties present in front of the solemnizing officer and 2 witnesses of legal age. (Art. 3(3), F.C.)

REQUISITES FOR A VALID MARRIAGE • A VALID MARRIAGE LICENSE formal – Except in the exceptional cases provided in the Code (Art. 3(2), F.C.)

Ninal vs. Bayadog, 328 SCRA 122 • Pepito, Sr. was married to Teodulfa on September 26, 1974. Out of their marriage were born Engrace, Ingrid, Archie and Pepito, Jr. • Teodulfa was shot by Pepito resulting in her death on April 24, 1985.

Ninal vs. Bayadog, • One year and 8 months thereafter, or on December 11, 1986, Pepito and Norma, his paramour, got married without a marriage license. • Pepito and Norma executed an affidavit, dated December 11, 1986, stating that they lived together as husband and wife for at least 5 years and were thus exempt from securing a marriage license.

Ninal vs. Bayadog • On February 19, 1997, Pepito died in a car accident. • After their father’s death, Engrace and his siblings filed a petition for declaration of nullity of marriage of Pepito to Norma alleging that the said marriage was void for lack of marriage license. • The case was filed under the assumption that the validity or invalidity of the second marriage would affect Engrace and the minors’ successional rights.

Ninal v Badayog • Is the marriage of Pepito to Norma valid? No. The marriage is void. A valid marriage license is a requisite of marriage under our laws, the absence of which renders the marriage void. It was held that the requirement and issuance of marriage license is the State’s demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested.

Ninal vs. Bayadog • The five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity – meaning no third party was involved at any time within the 5 years and continuity – that is unbroken.

Republic Vs. Court of Appeals, 236 SCRA 257 • Absence of a marriage license renders a marriage void ab initio. • The certification of “due search and inability to find” issued by the civil registrar enjoys probative value and sufficiently proves that his office did not issue a particular marriage license.

REQUISITES FOR A VALID MARRIAGE • The priest or solemnizing officer must be authorized (Art. 3 (1), F.C.) - formal.

Republic Vs. Court of Appeals, 236 SCRA 257 • The marriage was a civil ceremony performed by a judge of a city court. [It] is one of those commonly known as a “secret marriage” – a legally non-existent phrase but ordinarily used to refer to a civil marriage celebrated without the knowledge of the relatives and/or friends of either or both of the contracting parties.

REQUISITES FOR A VALID MARRIAGE • LEGAL CAPACITY - essential – 18-21 years old with consent of parents; (Art. 5, FC) – 21-25, with advise of parents (Art. 15, F.C.).

REQUISITES FOR A VALID MARRIAGE • LEGAL CAPACITY - essential – Both parties must be single or at least has had a prior marriage annulled. (Art. 35 (4), F.C.)

Domingo vs. Court of Appeals, 226 SCRA 572 • A marriage though void still needs a judicial declaration of such fact under the Family Code even for purposes other than remarriage.

THE FAMILY CODE • Art. 41 – A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse has been absent for four consecutive years and the spouse present has a wellfounded belief that the absent spouse was already dead. • (Two years if in case of disappearance where there is danger of death: Art. 391, Civil Code)

Art. 41, Family Code • For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

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

Art. 42, Family Code • A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

Art. 43, Family Code • The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: • (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable;

REQUISITES FOR A VALID MARRIAGE • LEGAL CAPACITY - essential – You cannot marry siblings (whether full or half blood, adopted, or step), parents (whether natural or adoptive or step), in-laws, and first cousins (Art. 37, F.C.).

REQUISITES FOR A VALID MARRIAGE • LEGAL CAPACITY - essential – You cannot marry a person whose spouse you killed to enable you to marry that person (Art. 38 (9), F.C.).

REQUISITES FOR A VALID MARRIAGE • LEGAL CAPACITY - essential – You must be able to consummate the marriage (Art. 45 (5), F.C.).

REQUISITES FOR A VALID MARRIAGE • LEGAL CAPACITY - essential – You must be psychologically capacitated (Art. 36, F.C.).

REQUISITES FOR A VALID MARRIAGE • LEGAL CAPACITY - essential – You must not be afflicted with a serious and incurable STD (Art. 45 (6), F.C.).

REQUISITES FOR A VALID MARRIAGE • CONSENT - essential – You must not be of unsound mind (Art. 45 (2), F.C.).

REQUISITES FOR A VALID MARRIAGE • CONSENT - essential – Your consent must not have been obtained by fraud (Art. 45 (3), F.C.).

REQUISITES FOR A VALID MARRIAGE • CONSENT - essential – Both parties must consent freely (no “shot-gun” weddings are valid.) (Art. 45 (4), F.C.).

REQUISITES FOR A VALID MARRIAGE • CONSENT - essential – You must be marrying the right person (Art. 35 (5), F.C.).

ESSENTIAL OBLIGATIONS OF MARRIAGE • • • • • • •

To live together Observe mutual love Observe mutual help and support Observe mutual respect Observe mutual fidelity Fix the family domicile Exercise joint parental authority over children

ESSENTIAL OBLIGATIONS OF MARRIAGE • Support the family • Manage the household • Exercise parental authority over the children • Be liable for the injuries and damages caused by their children • Exercise legal guardianship over the property of their minor children

VOID MARRIAGES • Party is below 18 years old, even with consent of parents • Solemnizing officer is not authorized to perform marriages, unless good faith • No marriage license • Bigamous or polygamous marriages

WHAT ARE VOID MARRIAGES • • • • •

Same sex marriages Absence of a ceremony Absence of consent Absence of authority of solemnizing officer Absence of a marriage license

WHAT ARE VOID MARRIAGES • Art. 37, Family Code: Incestuous Marriages • Art. 38, Family Code: Void By Public Policy (Collateral Blood Relatives Within The 4th Degree)

ART. 37 AND 38, FAMILY CODE • Between ascendants and descendants of any degree, whether legitimate or illegitimate • Between brothers and sisters, full or half-blood • Between collateral blood relatives, up to 4th civil degree, legitimate or illegitimate

ART. 37 AND 38, FAMILY CODE • Between step-parents and step-children • Between parents-in-law and children-inlaw • Between adopting parent and adopted child • Between surviving spouse of adopting parent and adopted child

ART. 37 AND 38, FAMILY CODE • Between an adopted child and a legitimate child of adopter • Between adopted children of the same adopter • Between parties where one, with the intention to marry the other, killed his spouse or the other person’s spouse

VOID MARRIAGES • When there is a mistake as to identity • When you marry without registering nullity of prior marriage or delivering legitime to children (Art. 35 and 53)

Congress's Omega Man [from Business Mirror] • “There is a buzz going on in the business community about the sexual escapades of a Visayan congressman whose wife is heiress to a business brand. The object of envy and admiration also from his colleagues, the Visayan solon is being touted as the " Omega Man. " Deemed the ultimate accolade, the said solon counts four mistresses as of now-and still counting. Tongues are wagging about the way the Visayan Lothario has managed his sexual conquests.”

A BLOG FROM A CHILD • “Situation: My parents are married for almost 29 years now with 3 kids but unfortunately my mom found out that my dad has another woman. She also found out that this relationship is been going on for 10 years now and they have 2 kids. My dad even bought a house for this other woman and gave her a business. My dad's reason was the girl is still a minor than when they had the first child and he was afraid that the parents or even the girl might accuse them for rape and so he did all these. That actually was a "toot tooot " because he had another child after that so called incident.”

A BLOG FROM A CHILD • Questions: 1. Is this concubinage? 2. Can we sue the Girl for adultery or if not adultery what grounds can we sue her? 3. What are the rights of their kids (other girl's children) if my dad acknowledge himself as a father? 4. Worst comes to Worst what can we do about the house of the girl that was given by my dad? 5. We would like to threaten them in some way but how? We have no Idea.”

ANSWER TO THE BLOG BY A “LAWYER2” • 1. Is this concubinage? Yes, this is concubinage. under the Revised

Penal Code, there are only 3 instances where both the man and his mistress is guilty of concubinage: – when the man allows his mistress and his wife to live together in the conjugal home; – or when the man lives with the mistress in another home and they show themselves to be husband and wife; – or when the man and his mistress are engaging in scandalous sexual acts.

ANSWER TO THE BLOG BY A “LAWYER2” • When your mother decides to file a case for concubinage, ask around for people who have seen your dad and the mistress living together in the house. ask these people to make an affidavit attesting to what they know. this will be evidence to your mother's complaint affidavit.

THE REVISED PENAL CODE • Art. 334 – Any husband who shall keep a mistress is the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place…. (concubinage).

ANSWER TO THE BLOG BY A “LAWYER2” • 2. Can we sue the Girl for adultery or if not adultery what grounds can we sue her? if the woman is married she is guilty. but only her husband can file the case against her. if she is single, see discussion number 1.

THE REVISED PENAL CODE • Art. 333 – Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void.

ANSWER TO THE BLOG BY A “LAWYER2” • 3. What are the rights of their kids (other girl's children) if my dad acknowledge himself as a father? They get half of what you (as legitimate heir) will get in your father's estate.

ANSWER TO THE BLOG BY A “LAWYER2” • 4. Worst comes to Worst what can we do about the house of the girl that was given by my dad? Any property bought in the marriage is presumed to be conjugal, hence, your mother has a share in that property. refer to Article 148 of the Family Code.

ANSWER TO THE BLOG BY A “LAWYER2” • In the situation of your father and his mistress, the code does not consider them co-owners of the house. The mistress MUST first show evidence that she actually contributed to the purchase of the house. If she did not give money to purchase the house, it is not considered co-owned by both of them. • Hence, it’s your father’s house, and since its your father's house, its your mother's house as well :).

THE REVISED PENAL CODE • Art. 349 – (Bigamy is committed by) any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

Article 40, Family Code • “The absolute nullity of a previous marriage may be invoked for purposes of a remarriage on the basis solely of a final judgment declaring such previous marriage void.”

CONSEQUENCES IF YOU DON’T FOLLOW ART. 40 You will be liable for the crime of bigamy because the nullity of the first marriage is not a prejudicial question to a prosecution for bigamy. (Bobis v. Bobis, 336 SCRA 747, Mercado v. Tan, 337 SCRA 122, Te v. CA, 346 SCRA 327, Manuel v. People, GR 165842, 29 Nov. 2005)

THE REVISED PENAL CODE • Art. 350 – (Even if conditions of Bigamy are not met) any person who shall contract marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment. • Also penalizes one who obtains consent through violence, intimidation or fraud.

THE REVISED PENAL CODE • Art. 351 – (a Premature Marriage is punished when) any widow marries within 301 days from the date of the death of her husband, or before having delivered if she was pregnant at the time of his death, or even if her marriage was dissolved, if she marries before her delivery or before the expiration of the period of 301 days.

The Family Code

• There are many ways to dissolve a marriage under Philippine law – despite the absence of a divorce proceeding.

The Family Code • The inimitable course is by way of Article 36 – a finding of psychological incapacity to comply with the essential marital obligations.

Suntay vs. CojuangcoSuntay, 300 SCRA 760 • The terms “annul” and “null and void” have different legal connotations and implications. Annul means to reduce to nothing… whereas null and void is something that does not exist from the beginning. A marriage that is annulled presupposes that it subsists but later ceases to have legal effect when it is terminated through a court action. But in nullifying a marriage, the court simply declares a status or condition which already exists from the very beginning.

Consequences • The marriage bonds are completely dissolved – as if no marriage took place. • The children remain legitimate by legal fiction • The spouses have no right to alimony or support

Consequences • The children must be supported • Properties are divided in accordance with the relevant property regime of the marriage. • The woman reverts to her birth name

WHAT YOU MUST PROVE FOR NULLITY • Psychological incapacity, characterized by: – Gravity – Juridical antecedence – Incurability (Santos v. Santos, 240 SCRA 20 [1995])

WHAT IS NOT “PSYCHOLOGICAL INCAPACITY” • • • • • • • •

Vices Philandering/sexual infidelity/perversion Abandonment Habitual alcoholism Domestic violence Incompatibility Flagrant promiscuity Volatile nature, outbursts, overbearing ways, obsession with cleanliness

BY THE WAY… • The Supreme Court has declared void only TWO marriages under Article 36: – 1. The man was a homosexual and never had sex with his wife. (Chi Ming Tsoi vs. CA, 266 SCRA 324) – 2. The woman was an extraordinary liar and was discovered to have lied even about the existence of her son. (Antonio vs. Reyes, 484 SCRA 353)

SO YOU FEEL IMPRISONED? HANDICAPPED? • Liam Fitzpatrick, “Getting Out,” • TIME Magazine, April 5, 2004

QUICK JOKE • MR: Gusto ko mag-file ng divorce sa mrs. ko. • ATTY: Bakit? • Mr: Six months na ako di kinakausap! • ATTY: Mag isipisip ka. Mahirap humanap ng mrs. na di nagsasalita!

DIVORCE STATISTICS – in Asia • Singapore – 26% of marriages resulted in divorce in 2002. Only 15% in 1990. • South Korea – 47% of marriages in 2002. Only 11% in 1990. • Japan – a marriage every 42 seconds; a divorce every 2 minutes. 38% of marriages in 2002. Only 22% in 1990. – 70% of divorces were initiated by older women after 20+ years of marriage.

MARRIAGE STATISTICS – in Asia • India – 11 divorces per 1,000 marriages, up from 7.41 per 1,000 in 1991. • Hong Kong – 41% of marriages in 2002. Only 13% in 1990. • China – 15% of marriages in 2002, up from 8% in 1990. • Indonesia – divorce went up by 15% b/w 2001-2002.

Divorce is better than: • • • • •

Being a battered wife. Remaining an unhappy homemaker. Being cheated on. Suffering gambling, alcoholism. Abandonment.

Definition of LOVE: • “A temporary insanity, curable by marriage” [Ambrose Bierce]

What some experts say: • Only 31% of conflicts in marriage are resolved, the other 69% are perpetual, unsolvable problems (John Gottman, UC Berkeley) • Don’t bother to try to fix the unfixable. • Select a mate with whom you can manage the inevitable annoyances. • Learn how to manage them.

What some experts say: • Admit some problems can’t be solved. • Build up friendship, ability to repair conflict and deal with gridlock. • Imagine what your marriage looks like so you can make repairs (e.g. a rusty carburetor).

Corrosive negative factors • Criticism (you never… you always…) • Defensiveness (who me?) • Contempt (you’re too stupid to realize…) • Stonewalling (I’ll just let this blow over) – 85% are men.

Perennial problems! • Sex • Money • Kids • Lack of free time

TO KEEP YOUR MARRIAGE BRIMMING, WITH LOVE IN THE LOVING CUP, WHENEVER YOU’RE WRONG ADMIT IT, WHENEVER YOU’RE RIGHT SHUT UP. [Ogden Nash]

STATUS OF FOREIGN DIVORCES

• We do not have a divorce law, thus, our courts cannot grant a divorce.

STATUS OF FOREIGN DIVORCES • While, as a general rule, foreign divorces obtained by Filipino citizens are not recognized by Philippine law (Art. 15, NCC), there are exceptions:

EXCEPTIONS TO GENERAL RULE • Van Dorn v. Romillo (139 SCRA 139 [1985]) and Quita v. CA (300 SCRA 406 [1998]): where one of the spouses was a foreigner, the foreign partner was not allowed to claim any rights as spouse, either in the sharing of the profits of the Filipino spouse’s business or in being an heir of the Filipino partner.

EXCEPTIONS TO GENERAL RULE • Llorente v. CA (GR 124371, 23 November 2000): the Filipino husband was naturalized in 1943 as a US citizen and he divorced his Filipino wife in 1951. He married another Filipina. He died in 1985. His first wife went to court to claim rights to conjugal estate and to the husband’s estate as his legal wife. S.C. said divorce obtained by the husband is valid (citing Pilapil v. Ibay-Somera, 174 SCRA 653 [1989]).

Roehr v. Rodriguez, 404 SCRA 495 • Although a foreign divorce decree obtained by a foreign spouse is recognizable in our jurisdiction (Rule 39, Sec. 48, 1997 Rules), its legal effects (such as custody of the children) must still be determined by our courts.

THE FAMILY CODE • Art. 26 – All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited…

THE FAMILY CODE • Art. 26 – Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

REQUIREMENTS • Marriage between a Filipino and a foreigner • A valid foreign divorce decree • Decree is obtained at the instance of the foreign spouse • The foreign spouse acquires capacity to marry by virtue of the divorce decree.

NOTE: ART. 26 (2), FAMILY CODE • Is there a need for a court proceeding in the Philippine courts to declare the Filipino spouse qualified to remarry? – YES, per Garcia v. Recio, 366 SCRA 437. – Also, because policy of law is not to leave the determination of the issue of capacity to remarry in the hands of the parties themselves.

NOTE: ART. 26 (2), FAMILY CODE • Does the benefit of this provision apply in cases where the foreigner spouse who obtained the divorce was originally a Filipino citizen? – YES, per Republic v. Orbecido, G.R. No. 154380, Oct. 5, 2005.

SHOULD THE FILIPINO SPOUSE NOT REMARRY: • What is his status is relation to the foreign consort? • Can he claim any share of the property or income acquired by the foreign consort? • Does he have a right to demand support from the foreign consort? • What is the status of the children they may have after the divorce decree?

ANOTHER QUESTION: • Will Art 26 apply to foreign divorces obtained before the effectivity date of the Family Code?

ANOTHER QUESTION: • What about the situation where the Filipino spouse who obtained a divorce decree, remarries, and is subsequently naturalized as a foreigner?

THE FAMILY CODE • Art. 55 – grounds for legal separation: – Repeated physical violence or grossly abusive conduct – Physical violence or moral pressure to compel change in religious or political affiliation – Attempt to corrupt to engage in prostitution, or connivance in such corruption or inducement

THE FAMILY CODE • Art. 55 – grounds for legal separation: – Final judgment sentencing spouse to imprisonment of more than 6 years, even if pardoned – Drug addiction or habitual alcoholism – Lesbianism or homosexuality – Contracting of a subsequent bigamous marriage

THE FAMILY CODE • Art. 55 – grounds for legal separation: – Sexual infidelity or perversion – Attempt against the life of other spouse – Abandonment without justification for more than one year

NOTE • 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 or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.

People v. Marivic Genosa GR 135981, Jan. 15, 2004 • The Supreme Court found that Genosa was suffering from “battered woman syndrome,” but she was not acquitted as she did not prove “impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant’s use of deadly force.”

People v. Marivic Genosa GR 135981, Jan. 15, 2004 • However, Genosa is on parole as two mitigating circumstances were found: an illness that diminished the her exercise of her will power (Arts. 9 and 10, RPC) and acting upon an impulse so powerful as to have naturally produced passion and obfuscation.

VIOLENCE AGAINST WOMEN AND THEIR CHILDREN • Refers to any act or a series of acts committed by any person against: – A woman who is his wife – Former wife – A woman with whom he has or had a sexual or dating relationship – With whom he has a common child – Against the woman’s child, whether legitimate or illegitimate

VIOLENCE AGAINST WOMEN AND THEIR CHILDREN • Violence committed within or without the family abode • Results in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse • Includes threats of such acts, battery, assault, coercion, harassment or deprivation of liberty.

Battered Woman Syndrome • Refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

PHYSICAL VIOLENCE • Refers to acts that include bodily or physical harm.

SEXUAL VIOLENCE • Includes, but is not limited to: – Rape, sexual harassment, acts of lasciviousness – Treating a woman or her child as a sex object – Making demeaning and sexually suggestive remarks – Physically attacking the sexual parts of the victim’s body

SEXUAL VIOLENCE – Forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof. – Forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser.

SEXUAL VIOLENCE • Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical harm or other harm or coercion.

SEXUAL VIOLENCE • Prostituting the woman or her child.

Psychological Violence • Refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to: – – – – – –

Intimidation Stalking Damage to property Public ridicule or humiliation Repeated verbal abuse Marital infidelity.

Psychological Violence • Causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or • To witness pornography in any form, or

Psychological Violence • To witness abusive injury to pets, or • To unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

Economic Abuse • Refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: – Withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity.

Economic Abuse – Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common. – Destroying household property. – Controlling the victim’s own money or properties or solely controlling the conjugal money or properties.

Battery • Refers to an act of inflicting physical harm upon the woman or her child resulting to physical and emotional distress.

Stalking • Refers to an intentional act committed by a person who, knowingly and without lawful justification, follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof.

CHARACTERIZED BY THE “CYCLE OF VIOLENCE” • THIS HAS THREE PHASES: (1) the tension building phase (2) the acute battering incident (3) the tranquil, loving (or at least, non-violent) phase

FOR ACQUITTAL USING THE BATTERED WOMAN SYNDROME DEFENSE (per Genosa case)

• Each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the woman and her partner

FOR ACQUITTAL USING THE BATTERED WOMAN SYNDROME DEFENSE (per Genosa case)

• The final acute battering episode preceding the killing of the batterer must have produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life.

FOR ACQUITTAL USING THE BATTERED WOMAN SYNDROME DEFENSE (per Genosa case)

• At the time of the killing, the batterer must have posed probable – not necessarily immediate and actual – grave harm to the accused, based on the history of violence perpetrated by the former against the latter.

Protection Orders • The relief granted should serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim’s daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. • Shall be enforced by law enforcement agencies. • May be issued by the barangay also.

Relief under Protection Orders • Includes Removal and exclusion of respondent from house regardless of ownership of the residence

HOW DO CHILD

YOU KNOW A IS YOURS?

• PATERNITY – the civil status of the father with respect to the child. • MATERNITY – the civil status of the mother with respect to the child. • FILIATION – the status of the child in relation to the father or the mother.

HOW DO CHILD

YOU KNOW A IS YOURS?

• LEGITIMATE – one conceived or born during a valid marriage of the parents, or within lawful wedlock. (Art. 164).

HOW DO CHILD

YOU KNOW A IS YOURS?

• LEGITIMATE – includes children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor, provided that both spouses authorized or ratified such insemination before the birth of the child. (Art. 164).

HOW DO CHILD

YOU KNOW A IS YOURS?

• LEGITIMATE – includes children of marriages void under Art. 36 (because of the psychological incapacity of one of the spouses) and Art. 53 (the second marriage of a widow or widower who hasn’t delivered the legitime to his/her 1st children.)

HOW DO CHILD

YOU KNOW A IS YOURS?

• IMPUGNING LEGITIMACY: – Physical impossibility for husband to have sexual intercourse with wife within the first 120 days of the 300 days immediately preceding the child’s birth because of: • Physical incapacity • Living separately in such a way that sexual intercourse not possible • Serious illness of the husband, which absolutely prevented intercourse

HOW DO CHILD

YOU KNOW A IS YOURS?

• IMPUGNING LEGITIMACY: – It is proved that for biological or other scientific reasons, the child could not have been that of the husband (unless by artificial insemination).

HOW DO CHILD

YOU KNOW A IS YOURS?

• IMPUGNING LEGITIMACY: – In case of artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

HOW DO CHILD

YOU KNOW A IS YOURS?

• IMPUGNING LEGITIMACY: – You have only one year from knowledge of the birth of the child to file a case impugning legitimacy, if you live in place where birth took place. – Two years if you don’t and you live in the Philippines. – Three years if you live abroad. – PERIOD COUNTED FROM DISCOVERY OR KNOWLEDGE OF THE FACT OF REGISTRATION OF THE BIRTH.

HOW DO CHILD

YOU KNOW A IS YOURS?

• NOTA BENE: – THE CHILD SHALL BE CONSIDERED LEGITIMATE ALTHOUGH THE MOTHER MAY HAVE DECLARED AGAINST ITS LEGITIMACY OR MAY HAVE BEEN SENTENCED AS AN ADULTERESS. (Art. 167).

HOW DO CHILD

YOU KNOW A IS YOURS?

• ILLEGITIMATE – one conceived and born outside a valid marriage or outside lawful wedlock. (Art. 165).

HOW DO CHILD

YOU KNOW A IS YOURS?

• ILLEGITIMATE – are children born of: – Couples who are not legally married. – Incestuous marriages – Bigamous marriages – Adulterous relations – Marriages void for reasons of public policy and other void marriages. – Couples below 18 years old, whether married or not.

Agustin v. Court of Appeals, 460 SCRA 315 • The Supreme Court categorically ruled that DNA testing is a valid means of determining paternity.

Cabatania v. Regodos, 441 SCRA 96 • A birth certificate unsigned by the putative father was not competent evidence of paternity.

HOW DO CHILD

YOU KNOW A IS YOURS?

• LEGITIMATED – one who is originally illegitimate but later considered legitimate by legal fiction because of the subsequent marriage of the parents who, at the time of the child’s conception, had no legal impediment to marry each other. (Arts. 177 and 178).

HOW DO CHILD

YOU KNOW A IS YOURS?

• LEGITIMATED – effects of legitimation retroacts to the time of the child’s birth. • Have same rights as legitimate children.

RIGHTS OF LEGITIMATE CHILDREN • Bear surnames of both parents. • Receive support from their parents, ascendants, and brothers and sisters. • Entitled to legitime: half of the parents’ estate divided by the number of legitimate children in testate succession (Art. 888, NCC), or equally in intestate succession (Art. 979, NCC).

RIGHTS OF ILLEGITIMATE CHILDREN • Use surname of the mother. – NOTE: Revilla Law [Rep. Act No. 9255] allowing them to use surname of the father if they are acknowledged.

• Receive support. • Entitled to legitime: half of that of a legitimate child.

SUPPORT • Indispensable for: – – – – – – –

Sustenance Dwelling Clothing Medical attendance Education (even beyond the age of majority) Transportation (to and from school or work) IN KEEPING WITH THE FINANCIAL CAPACITY OF THE FAMILY

SUPPORT • Persons obliged to support each other: – Spouses – Legitimate ascendants and descendants – Parents and their legitimate children and the legitimate and illegitimate children of the latter – Parents and their illegitimate children and the legitimate and illegitimate children of the latter – Legitimate brothers and sisters, whether full or half-blood.

SUPPORT • NOTA BENE: – AFTER FINAL JUDGMENT OF A DECLARATION FOR NULLITY OR ANNULMENT, THE OBLIGATION OF MUTUAL SUPPORT BETWEEN THE SPOUSES CEASE. (Art. 198).

SUPPORT • NOTA BENE: – UNDER PROCEDURAL RULES, OUR COURTS CANNOT ORDER A PERSON ABROAD TO GIVE SUPPORT, UNLESS THE ORDER IS RECOGNIZED BY THE COURT IN THE COUNTRY WHERE THAT PERSON RESIDES.

SUPPORT • NOTA BENE: – TWO WAYS OF COMPLYING WITH SUPPORT OBLIGATION: • Paying the allowance fixed, or • Receive and maintain the child in his home or family dwelling (unless there is a legal or moral obstacle).

PARENTAL AUTHORITY • The natural right and duty of parents over the person and property of their minor children. • Cannot be renounced, transferred or waived. • Is jointly exercised by both parents (but the father’s decision prevails). • Is purely personal. • Is temporary.

PARENTAL AUTHORITY • Includes the caring for and rearing of children for civic consciousness and efficiency, and the development of their moral, mental and physical character and well-being. (Art. 209).

PARENTAL AUTHORITY • In case of absence or death of either parent, the parent present exercises this right and duty. (Art. 212).

PARENTAL AUTHORITY • In case of separation of parents, the parent designated by the court exercises this right and duty. • A child over 7 years old can choose. (Art. 213).

CUSTODY • No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. (Art. 213).

CUSTODY • “COMPELLING REASONS”: – Mother is insane , or – Sick with a communicable disease, or – She maltreats the child, – Or other similar reasons. – Mother’s open cohabitation with a man not her husband.

PARENTAL AUTHORITY • An illegitimate child is under the parental authority of the mother. (Art. 176).

Briones v. Miguel, 440 Scra 455 • Only if the mother defaults can the father assume custody and authority over an illegitimate child.

Silva v. CA, 275 SCRA 604 • A father has right to visit his illegitimate children.

Perez v. CA, 255 SCRA 661 • Justification to deprive mother of custody: – – – – – – – – –

Neglect Abandonment Unemployment Immorality Habitual drunkenness Drug addiction Maltreatment Insanity Communicable disease

Gualberto v. Gualberto, 28 June 2005 • Sexual preference of a mother alone does not prove parental neglect or incompetence.

General Rule • Absolute Community regime, if no pre-nuptial agreement exists.

Art. 96, Family Code • The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

Art. 124, Family Code • The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

Art. 96 and 124, Family Code • In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. ….

General Rule • Whether the property between the spouses be the absolute community or the conjugal partnership of gains, dispositions or encumbrances of common property must be with the consent of both spouses. Otherwise, the transaction is VOID. (Articles 96 and 124, F.C.)

Arts 96 and 124, Family Code • Prohibition extends not only to acts by one of the spouses disposing or encumbering common property but to any disposition or encumbrance by one spouse of his or her undivided interest therein. (Abalos v Macatangay, 30 Sept. 2004, Homeowners v Dailo, 11 March 2005)

ARTICLE 87, Family Code • Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971].

• The late Jose Consuegra, at the time of his death, was employed as a shop foreman of the office of the District Engineer in the province of Surigao del Norte. In his lifetime, Consuegra contracted two marriages:

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971].

• The first with Rosario Diaz, solemnized in the parish church of San Nicolas de Tolentino, Surigao, Surigao, on July 15, 1937, out of which marriage were born two children, namely, Jose Consuegra, Jr. and Pedro Consuegra, but both predeceased their father;

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971].

• and the second, which was contracted in good faith while the first marriage was subsisting, with Basilia Berdin, on May 1, 1957 in the same parish and municipality, out of which marriage were born seven children, namely, Juliana, Pacita, Maria Lourdes, Jose, Rodrigo, Lenida and Luz, all surnamed Consuegra.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971]. • Being a member of the Government Service Insurance System (GSIS, for short) when Consuegra died on September 26, 1965, the proceeds of his life insurance under policy No. 601801 were paid by the GSIS to petitioner Basilia Berdin and her children who were the beneficiaries named in the policy

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971]. • Having been in the service of the government for 22.5028 years, Consuegra was entitled to retirement insurance benefits in the sum of P6,304.47 pursuant to Section 12(c) of Commonwealth Act 186 as amended by Republic Acts 1616 and 3836. • Consuegra did not designate any beneficiary who would receive the retirement insurance benefits due to him.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971].

• Rosario Diaz, the widow by the first marriage, filed a claim with the GSIS asking that the retirement insurance benefits be paid to her as the only legal heir of Consuegra, considering that the deceased did not designate any beneficiary with respect to his retirement insurance benefits.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971].

• Basilia Berdin and her children, likewise, filed a similar claim with the GSIS, asserting that being the beneficiaries named in the life insurance policy of Consuegra, they are the only ones entitled to receive the retirement insurance benefits due the deceased Consuegra.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971]. • Resolving the conflicting claims, the GSIS ruled that the legal heirs of the late Jose Consuegra were Rosario Diaz, his widow by his first marriage who is entitled to one-half, or 8/16, of the retirement insurance benefits, on the one hand; and Basilia Berdin, his widow by the second marriage and their seven children, on the other hand, who are entitled to the remaining one-half, or 8/16, each of them to receive an equal share of 1/16.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971].

• [In the S.C.]The question posed is: to whom should this retirement insurance benefits of Jose Consuegra be paid, because he did not, or failed to, designate the beneficiary of his retirement insurance?

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971].

• The GSIS offers two separate and distinct systems of benefits to its members — one is the life insurance and the other is the retirement insurance. These two distinct systems of benefits are paid out from two distinct and separate funds that are maintained by the GSIS.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971]. • In the case of the proceeds of a life insurance, the same are paid to whoever is named the beneficiary in the life insurance policy. As in the case of a life insurance provided for in the Insurance Act (Act 2427, as amended), the beneficiary in a life insurance under the GSIS may not necessarily be a heir of the insured. The insured in a life insurance may designate any person as beneficiary unless disqualified to be so under the provisions of the Civil Code. And in the absence of any beneficiary named in the life insurance policy, the proceeds of the insurance will go to the estate of the insured.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971]. • Retirement insurance is primarily intended for the benefit of the employee — to provide for his old age, or incapacity, after rendering service in the government for a required number of years. If the employee reaches the age of retirement, he gets the retirement benefits even to the exclusion of the beneficiary or beneficiaries named in his application for retirement insurance.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971]. • The beneficiary of the retirement insurance can only claim the proceeds of the retirement insurance if the employee dies before retirement. If the employee failed or overlooked to state the beneficiary of his retirement insurance, the retirement benefits will accrue to his estate and will be given to his legal heirs in accordance with law, as in the case of a life insurance if no beneficiary is named in the insurance policy.

VDA. DE CONSUEGRA vs. GOVERNMENT SERVICE INSURANCE SYSTEM, 37 SCRA 316 [1971]. • It is Our view, therefore, that the respondent GSIS had correctly acted when it ruled that the proceeds of the retirement insurance of the late Jose Consuegra should be divided equally between his first living wife Rosario Diaz, on the one hand, and his second wife Basilia Berdin and his children by her, on the other; and the lower court did not commit error when it confirmed the action of the GSIS, it being accepted as a fact that the second marriage of Jose Consuegra to Basilia Berdin was contracted in good faith.

Matabuena v Cervantes 38 SCRA 284 • Matabuena donated a parcel of land to Petronilla in 1956. They married in 1962. After Cervantes died, childless, his sister claimed the property. • S.C: - “While Art. 183 of the Civil Code considers as void a ‘donation between the spouses during the marriage,’ policy considerations of the most exigent character as well as the dictates of morality require that the same prohibition should apply to a common-law relationship.

Matabuena v Cervantes 38 SCRA 284 • So long as marriage remains the cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise attach to concubinage.

Matabuena v Cervantes 38 SCRA 284 • …the policy of the law which embodies a deeply-rooted notion of what is just and what is right would be nullified if such irregular relationship instead of being visited with disabilities would be attended with benefits.

Matabuena v Cervantes 38 SCRA 284 • [NOTE: because, however, Cervantes and Matabuena married, she was able to get half of the property as her share in his estate. The sister got the other half….]

[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO vs. SUSAN YEE CARIÑO

• The marriage of respondent Susan Yee and the deceased is a bigamous marriage, having been solemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and the deceased), the application of Article 148 is therefore in order.

[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO vs. SUSAN YEE CARIÑO

• The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pagibig, and PCCUI, are clearly renumerations, incentives and benefits from governmental agencies earned by the deceased as a police officer.

[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO vs. SUSAN YEE CARIÑO

• Unless respondent Susan Yee presents proof to the contrary, it could not be said that she contributed money, property or industry in the acquisition of these monetary benefits.

[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO vs. SUSAN YEE CARIÑO

• Hence, they are not owned in common by respondent and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim the same. • By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs. And, respondent, not being the legal wife of the deceased is not one of them.

[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO vs. SUSAN YEE CARIÑO • Susan Nicdao, however, was married to Carino. Her claim falls under Art. 147 of the Family Code. • In contrast to Article 148, under the foregoing article, wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto.

[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO vs. SUSAN YEE CARIÑO

• Conformably, even if the disputed “death benefits” were earned by the deceased alone as a government employee, Article 147 creates a coownership in respect thereto, entitling the petitioner to share onehalf thereof. As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith.

[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO vs. SUSAN YEE CARIÑO

• Thus, one-half of the subject “death benefits” under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with Susan Nicdao.

Art. 739, Civil Code • Art. 739. The following donations shall be void: • (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; • (2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

Art. 739, Civil Code • (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. • In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. (n)

SSS v. Davao, 17 SCRA 863 • Article 739 of the New Civil Code does not apply to a case where the concubine did not know that the man was married.

Article 743, Civil Code • Donations made to incapacitated persons shall be void, though simulated under the guise of another contract or through a person who is interposed.

Art. 1031, Civil Code • A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void.

Art. 2012, Civil Code • Any person who is forbidden from receiving any donation under Article 739 cannot be named beneficiary of a life insurance policy by the person who cannot make any donation to him, according to said article.

Art. 1337, Civil Code • There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice.

Art. 1337, Civil Code • The following circumstances shall be considered: – the confidential, family, spiritual and other relations between the parties, – or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, – or was ignorant or in financial distress.

Sec.3, Insurance Code • The consent of the husband is not necessary for the validity of an insurance policy taken out by a married woman on her life or that of her children. Well, what about the consent of the wife? The spouses are JOINT administrators of the community property….

Sec.3, Insurance Code • Any minor of the age of eighteen years or more, may, notwithstanding such minority, contract for life, health and accident insurance, with any insurance company duly authorized to do business in the Philippines, provided the insurance is taken on his own life and the beneficiary appointed is the minor's estate or the minor's father, mother, husband, wife, child, brother or sister.

Sec.3, Insurance Code • The married woman or the minor herein allowed to take out an insurance policy may exercise all the rights and privileges of an owner under a policy. Very very sexist and against the policy in the Family Code.

Sec. 10, Insurance Code • Sec. 10. Every person has an insurable interest in the life and health: • (a) Of himself, of his spouse and of his children; • (b) Of any person on whom he depends wholly or in part for education or support, or in whom he has a pecuniary interest;

Sec. 10, Insurance Code • (c) Of any person under a legal obligation to him for the payment of money, or respecting property or services, of which death or illness might delay or prevent the performance; and • (d) Of any person upon whose life any estate or interest vested in him depends.

NON-MARITAL UNIONS • Arts. 147 and 148, F.C. state the rules of these inaccurately called “common-law marriages.”

Art. 147, Family Code • When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

Art. 147, Family Code • In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

Art. 147, Family Code • Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

Art. 147, Family Code • When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

ARTICLE 147, FAMILY CODE • The man and the woman have capacity to marry each other. • They cohabit • Their cohabitation is exclusive • There is no marriage or the marriage is void.

ARTICLE 147, FAMILY CODE • The parties are under a property relationship of co-ownership, covering: – Their wages and salaries – Property acquired through the work or industry of both (if in the latter case the other shared in family care/maintenance)

Art. 148, Family Code • In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

Art. 148, Family Code • If one of the parties is validly married to another, his or her share in the coownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. • The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

JOAQUINO vs. REYES, G.R. No. 154645, July 13, 2004 • Though registered in the paramour’s name, property acquired with the salaries and earnings of a husband belongs to his conjugal partnership with the legal spouse. The filiation of the paramour’s children must be settled in a probate or special proceeding instituted for the purpose, not in an action for recovery of property.

JOAQUINO vs. REYES • As to the facts, it is undisputed that the deceased Rodolfo Reyes was legally married to Respondent Lourdes Reyes on January 3, 1947. It is also admitted that for 19 years or so, and while their marriage was subsisting, he was actually living with petitioner. It was during this time, in 1979, that the disputed house and lot was purchased and registered in petitioner’s name.

JOAQUINO vs. REYES • When a common-law couple have a legal impediment to marriage, only the property acquired by them -through their actual joint contribution of money, property or industry -- shall be owned by them in common and in proportion to their respective contributions.

JOAQUINO vs. REYES • The present controversy hinges on the source of the funds paid for the house and lot in question. Upon the resolution of this issue depends the determination of whether the property is conjugal (owned by Rodolfo and Lourdes) or exclusive (owned by Milagros) or co-owned by Rodolfo and Milagros.

JOAQUINO vs. REYES • Indeed, a preponderance of evidence has duly established that the disputed house and lot was paid by Rodolfo Reyes, using his salaries and earnings.

JOAQUINO vs. REYES • By substantial evidence, respondents showed the following facts: – 1) that Rodolfo was gainfully employed as comptroller at Warner, Barnes and Co., Inc. until his retirement on September 30, 1980, upon which he received a sizeable retirement package; – 2) that at exactly the same time the property was allegedly purchased, he applied for a mortgage loan -- intended for “housing” -from the Commonwealth Insurance Company;

JOAQUINO vs. REYES – 3) that he secured the loan with a real estate mortgage over the same property; – 4) that he paid the monthly amortizations for the loan as well as the semi-annual premiums for a Philam Life insurance policy, which he was required to take as additional security; and – 5) that with the proceeds of his life insurance policy, the balance of the loan was paid to Commonwealth by Philam Life Insurance Company.

JOAQUINO vs. REYES • All told, respondents have shown that the property was bought during the marriage of Rodolfo and Lourdes, a fact that gives rise to the presumption that it is conjugal. More important, they have established that the proceeds of the loan obtained by Rodolfo were used to pay for the property; and that the loan was, in turn, paid from his salaries and earnings, which were conjugal funds under the Civil Code.

JOAQUINO vs. REYES • In contrast, petitioner has failed to substantiate either of her claims -- that she was financially capable of buying the house and lot, or that she actually contributed to the payments therefor. • Indeed, it does not appear that she was gainfully employed at any time after 1961 when the property was purchased.

JOAQUINO vs. REYES • Under the circumstances, therefore, the purchase and the subsequent registration of the realty in petitioner’s name was tantamount to a donation by Rodolfo to Milagros. By express provision of Article 739(1) of the Civil Code, such donation was void, because it was “made between persons who were guilty of adultery or concubinage at the time of the donation.”.

JOAQUINO vs. REYES • Regarding the registration of the property in petitioner’s name, it is enough to stress that a certificate of title under the Torrens system aims to protect dominion; it cannot be used as an instrument for the deprivation of ownership. It has been held that property is conjugal if acquired in a common-law relationship during the subsistence of a preexisting legal marriage, even if it is titled in the name of the common-law wife.

JOAQUINO vs. REYES • The registration of the property in petitioner’s name was clearly designed to deprive Rodolfo’s legal spouse and compulsory heirs of ownership. By operation of law, petitioner is deemed to hold the property in trust for them. Therefore, she cannot rely on the registration in repudiation of the trust, for this case is a well-known exception to the principle of conclusiveness of a certificate of title.

ARTICLE 148, FAMILY CODE • The parties are cohabiting, but they have no capacity to marry each other or the cohabitation is not exclusive. (Valdes v RTC, 260 SCRA 221 [1996])

ARTICLE 148, FAMILY CODE • A limited co-ownership is established covering: – Actual joint contributions of money – Actual joint contributions of property – Actual joint contributions of industry

ARTICLE 148, FAMILY CODE • Excluded are wages/salaries, and also acquisitions where one of the parties only participated in care and maintenance.

QUERY: • I have an Aunt, she lived with this man for 20 years out of wedlock, because the latter have a prior legal marriage. Now, the man died, left in a bank is a certain amount of money. I would just like to know if my aunt has legal rights to claim the money to the bank, if yes, what do we need to do to have the bank agreed on this process. Thanks in advance for your reply. =)

ANSWER: • As discussed in the article, only the properties acquired by both parties through their actual joint contribution of money, property or industry shall be owned in common in proportion to the respective contribution. In the absence of proof to the contrary, the sharing is equal. I’m sure that if you ask your bank about this, they will refer that question to their lawyers. I suppose they would say that since the account is under the name of the guy (not a joint account), then it goes to him or to his legal heirs (and that would be the legitimate family and the illegitimate children). Just try to ask the bank and check what they would say. Thanks.

Agapay v. Palang, 276 SCRA 340 • Actual joint contribution is required by Art. 148. if the actual contribution of the party is not proved, there will be no coownership and no presumption of equal shares.

Valdes v. RTC, 260 SCRA 221 • In a void marriage, regardless of the cause thereof, the property relations of the parties during the cohabitation are governed by Arts. 147 or 148, as the case may be.

Valdes v. RTC, 260 SCRA 221 • The liquidation and partition of the property owned in common by the partners are governed by the rules on co-ownership.

Karl Wilson Agence France Presse • Daza does give one piece of advice to mistresses: "Make sure you insure him. An insurance policy, paid for by the beloved philanderer, with his mistress and their offspring as beneficiaries, is a piece of paper that's as good as a substitute marriage contract," she said. "Unless she has secured a house, jewels, cars, bonds and a bank account in her name, insurance is her best bet."