Articles


 

MARRIAGE AND ITS VALIDITY

BY: Atty. Lifrendo M. Gonzales
October 01,2012

Under Article 1 of the Family Code of the Philippines “Marriage is a special contract of permanent union between a man and a woman entered into in accordance with the law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

It is clear from stated above that Marriage is imbued with permanency. Although a marriage is categorized as a special contract, the stipulations thereof cannot be left to the whims and caprice of the contracting parties as the State assures the sanctity of this basic and fundamental social institution which may be considered as the backbone of every community.

However, though the law instilled its permanency of union between the contracting parties, the law likewise accepts the possibility of severance of marriage on the grounds which prove the union as no longer a pillar of society to which the state can depend on.
In order for the community and eventually the State to benefit from this union, the basic requirements of marriage must be present; otherwise, its foundation cannot support the structure of a family.

Article 2 of the Family Code of the Philippines enumerates the essential requisites of marriage for its validity, to wit:

  1. Legal capacity of the Contracting Parties who must be a male and a female; and
  2. Consent freely given in the presence of the solemnizing officer.

Legal capacity pertains not merely to the legal marrying age of the contracting parties but likewise refers to the absence of any legal impediment to enter into this special contract which means that persons who are closely related to each other cannot marry each other as their will be an incestuous one nor do they be previously married to someone else as this would make their marriage bigamous.

Consent freely given refers to the liberality of both contracting parties to decide for themselves without undue influence, intimidation, force or fraud to enter into married life with each other.  This is the reason why the consent of both parties must be given in the presence of the solemnizing officer to publicize their approval to said contract and in the same manner the solemnizing officer may be assured that the parties have bound themselves to each other with reasonable certainty.

Article 3 of the Family Code of the Philippines enumerates the formal requisites of marriage as:

  1. Authority of the solemnizing officer;
  2. A valid marriage license;
  3. A marriage ceremony

The absence of the essential and formal requirements would render the marriage void ab initio (from the beginning) as mandated by the first paragraph of Article 4 of the Family Code of the Philippines, to wit:

Article  4. The absence of any of the essential or formal requisites shall render the marriage void ab initio.

It is worth mentioning that insofar as the solemnizing officer is concerned, absence pertains to the authority of the solemnizing officer. Article 7 of the Family Code enumerated those persons who are authorized to solemnize marriages. Therefore, any person not so mentioned thereof are considered to have no authority. Hence, a marriage solemnized by a notary public who is not one of those mentioned in Article 7 of the Family Code would be void and inexistent from the beginning.

The same goes with the marriage contract. The contracting parties must first secure a valid marriage license before entering into this special contract. A mere marriage license appearing on the Certificate of Marriage may not be considered as a valid marriage license if no records of said marriage license was ever registered or applied for before the Local Civil Registrar as the same would appear to be fictitious and inexistent.

Bear in mind that the first paragraph of Article 4 pertains to the absence and not merely and irregularity of the essential and formal requisites of marriage in order for the union to be declared void ab initio. Hence, the total lack of consent, legal capacity, authority of the solemnizing officer, a valid marriage license and a marriage ceremony may be used as grounds for the declaration of one’s marriage void from the beginning.

 

 

 


 

Annulment distinguished from Nullity of Marriage
By: Atty. Lifrendo M. Gonzales
October 2, 2012

Parties who enter into a marriage are presumed to have done so legally which renders their marriage binding and valid and may not be presumed by the parties to be otherwise simply because of their personal belief that a ground for its invalidity exists. Such ground must first and foremost be determined and ruled upon by a competent court exercising jurisdiction in order to legally sever the marital ties between the parties.

When a marriage is believed to be null and void from the beginning depending on the grounds used, the action filed in Court is a Petition for the Declaration of Absolute Nullity of Marriage and not Annulment as the two actions are entirely different with each other not only on the grounds but also with the legal effects thereto.

The grounds for this petition are enumerated in the Family Code of the Philippines like the lack of the essential and formal requisites of Marriage such as no legal capacity to enter into marriage, those marriages which are considered as against public policy such as incestuous and bigamous marriages, those which did not conform to the requirement set forth by the Family Code and those marriages where one or both parties is psychologically incapacitated to perform the marital obligations thereto.

A marriage declared by the court as null and void connotes that the marriage entered into by the parties is inexistent as if no marriage ever took place between them.

A voidable marriage on the hand is filed through a petition of Annulment before the court of competent jurisdiction and is a marriage which enjoys the presumption of validity until a declared as annulled.Articles 45 and 46 of the Family Code enumerate the grounds thereof. Annulment connotes that a contract is valid and existing but was only cancelled or annulled. Therefore, the grounds for void marriages cannot be used in voidable marriages as the latter presupposes that there was no existing marriage hence there is nothing to be annulled.

Furthermore, a voidable marriage can only be filed within the prescriptive period set forth by the Family Code. If for example the grounds used for the Petition for the Annulment of Marriage is Fraud, Vitiated Consent, Incapability to Consummate or Sexually Transmitted Diseases, the prescriptive period thereof is five (5) years from the discovery of Fraud, Five (5) years from the time the intimidation, undue influence or force has disappeared, or within 5 years after the marriage ceremony in cases of Incapability to consummate or when the ground is based on Sexually Transmitted Diseases.

The grounds for void marriages on the other hand do not prescribe. Hence, regardless of the ground used, the party seeking the nullity of the marriage may do so even beyond five (5) years.

 


 

PRE-NUPTIAL AGREEMENTS
By: Atty. Lifrendo M. Gonzales
22 October 2012

Pre-Nuptial contract is an agreement between future husband and wife insofar as the property relations that will govern their properties during the existence of their marriage.

Article 75 of the Family Code of the Philippines states that “The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gain, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.”

Simply put, future spouses have the freedom to enter into an agreement with each other as to how their properties will be governed, and just like any other contracts, the stipulations thereto should not be void or contrary to law, morals or public policy.

The purpose of this contract is to clearly classify which properties both present and future properties belong to each spouses and which belong to the conjugal properties so that the rights and obligations anent to the properties will be categorically defined.

Unlike however with an ordinary contract, a pre-nuptial agreement must be entered into prior to the celebration of the marriage, must be in writing, the modifications must likewise be made before the marriage and registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. The purpose of which is to bind third persons and prejudice their right against said property. This is clearly expressed in Article 77 of the Family Code, to wit:

“Article 77. The marriage settlements and any modifications thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third parties unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property.”

In Philippine setting, most future Filipino spouses deliberately disregard the importance of a pre-nuptial agreement due to their great trust and confidence rested on their futurespouses and believes firmly on the notion of “what is yours is mine and mine is yours,” not placing great consideration on the possibility that their marriage may one day be severed leaving both of them locked in a gruesome battle for their properties.

The Family Code of the Philippines has already set up the procedures, rules and laws in availing a pre-nuptial agreement to protect their individual rights over the properties they have founded especially in this modern day and age where both the spouses now both work for the benefit of their families.

 


 

SEPARATION PAY: To whom and when is it due?
Atty. Lifrendo M. Gonzales
August 8, 2014

Separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for cause other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice. (EASTERN PAPER MILLS INC.
vs.NATIONAL LABOR RELATIONS COMMISSION and EDUARDO MALABANAN, G.R. No. 85497 February 24, 1989)
There are two types of causes to which an employee may be legally dismissed, namely: 1) Authorized Cause; and 2) Just Cause.
In the above mentioned jurisprudence, separation pay is given to employees who were dismissed for authorized causes under Article 283 of the Labor Code, to wit:
“Art. 283. Closure of Establishment and Reduction of Personnel. – The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operations of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Department of Labor and Employment, at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closure or cessation of operations of the establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year.”
Basically, Article 283 has enumerated the instances to which a separation pay may be paid to the employee such as:

  1. Automation or installation of labor-saving devices;
  2. Redundancy;
  3. Retrenchment;
  4. Closure or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of law.

Separation pay may also be paid to the employee in lieu of reinstatement in cases of illegal dismissal due to strained relationship such as in the case of GOLDEN ACE BUILDERS and ARNOLD U. AZUL, vs. JOSE TALDE, G.R. No. 187200, May 5, 2010 where the Court stated that “Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.”
However, an employee who voluntarily resigned his or her employment from his or her employer is not entitled to a separation pay. Generally, an employee who voluntarily resigns from employment is not entitled to separation pay unless, however, there is a stipulation for payment of such in the employment contract or Collective Bargaining Agreement (CBA), or payment of the amount is sanctioned by established employer practice or policy (RAVELAIRE & TOURS CORP. and/or CHRISTINE B. OJEDA vs. NLRC and NENITA I. MEDELYN, G.R. No. 131523 August 20, 1998).
Voluntary resignation is defined as the act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment (Habana, November 16, 1998, cited in Philippine Wireless, July 20, 1999)

 


 

A Look on Domestic Violence
By: Atty. Lifrendo M. Gonzales
November 28, 2014

Domestic Violence is an act of aggressive behaviour within the home and towards a member or members of the family such as but not limited to physically inflicting bodily harm to a spouse or children, verbally assaulting a member of the family, sexually abusing the wife, partner or even the children.

There have been other laws which can protect victims of domestic violence but it was only in March 2004 when Republic Act No. 9262 or otherwise known as an act defining Violence Against Women and their Children or more commonly known as VAWC has been enacted into law when women became on an equal footing with their abusive husbands and greatly protected their rights as a person, a woman, and a wife including their children who are more often than not become victims of domestic violence, either directly or indirectly.

RA 9262 defined Violence against women and their children as “any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.”

From the definition set forth by RA 9262, it would appear that the person or persons who may be criminally liable under this law is not only limited to a husband or a man. The law clearly stated “any person” which means that it does not distinguish as to gender so long as he or she has or had a sexual or dating relationship with the victim or committed violence towards the children of their partner.

Domestic violence may be in the form of physical abuse, sexual abuse, psychological abuse or economic abuse. RA 9262 was enacted in order for women to be more aware of their rights against their abusive husband as well as to shield their innocent children from any form of abuse and also to provide reliefs to women not only from being physically harmed but likewise to ensure that the victim and her children will continue to enjoy the financial support that they are entitled to as provided by law.

It is worth mentioning that RA 9262 is a law which provides criminal penalties or sanctions for its violators i.e. imprisonment and payment of the civil liabilities for the victims.