5 Cacho, Julian Paul S. 1Q II.

Legal Opinion

LEGAL RESEARCH

October 24, 2011 Johnny V. Matulis matulis.johnny@gmail.com

Dear Mr. Matulis,

As you have asked, here is the legal opinion for your queries about the actions that you may take and the remedies that you may apply regarding your issues about your failed marriage and the subsequent one that you would like to pursue. The facts, gathered from you and your documents, are as follows: Mr. Matulis, you said that your current marriage failed and you have left your wife of 20 years, Marsha Matulis, whom you have properties with that includes a a hous and lot in Mandaluyong valued at Php7 million; three cars worth Php600,000 each; Php 500,000 in time deposit; Php340,000 worth of jewelry; and shares of stock in PhilAm Life Corporation valued at Php250,000 . Also, you have not visited nor communicated and disclosed any information regarding your whereabouts with her for ten months and you said that just recently you have left on a nine-month voyage to Italy as a duty required in your profession as a seaman. Moreover, you have stated that you have a girlfriend, who is two months pregnant, whom you wish to marry so you can now move on with your life. From the forgoing facts, it is apparent the certain queries you presented ask for a legal opinion that is based from laws and jurisprudence available and applicable to your situation. The following would be the questions that you wish to be answered and given recommendation to regarding actions that you must take: A. What would be your legal recourse to enable you to marry your girlfriend? In this regard based on the abovementioned facts you cant enter a subsequent marriage because your marriage with Aunt Marsha still subsists. The accepted legal recourses for you to validly marry your girlfriend are either the successful declaration of nullity of your marriage ab initio or the annulment of your marriage to Aunt Marsha. Regarding the declaration of nullity of your existing marriage to Aunt Marsha, should you file an action declaring it void from the beginning there are grounds that you may consider for this action to prosper. The Family Code provides that the following marriages shall be void from the beginning: 1. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so (Art. 35 par. 2); 2. Those solemnized without license, except those covered the preceding

3. 4. 5. 6.

7.

8.

Chapter (Art. 35 par. 3); Those bigamous or polygamous marriages not failing under Article 41 (Art. 35 par. 4); Those contracted through mistake of one contracting party as to the identity of the other; and (Art. 35 par. 5) Those subsequent marriages that are void under Article 53. (Art. 35 par. 6) A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (Art. 36) Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) (Art. 37) The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82) (Art. 38)

Another action to take is undergoing the process of annulling your marriage with Aunt Marsha. That is, whether youll found grounds that will fall upon the considered grounds for an annulment of marriage provided in the Family Code. 1) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife. (Art. 45 par. 1) But if the parties freely cohabited with each other after he or she came to reason, the law prohibits the filing of a petition. 2) 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. (Art. 45 par. 3) Petition must be filed within five years after the discovery of the fraud. Provided in Article 46 are the circumstances that constitutes fraud: a) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; b) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

c) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or d) 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. 3) That the consent of either party was obtained by force, intimidation or undue influence, except when the same has ceased and the party filing the petition freely cohabited with the other as husband and wife. (Art. 45 par. 4) Petition must be filed by the injured party within five years from the point in time the force, intimidation or undue influence disappeared or came to an end.

B. Are you obliged to support your spouse Aunt Marsha? As husband and wife, you and Aunt Marsha are mutually required to give support to each other in everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation in keeping with the financial capacity of the family. This is provided by Art. 105 of the Family Code. It is obligatory that spouses should support each other. However, if you shall recourse to the action of filing a petition for a declaration of nullity of your marriage or the annulment of it, Aunt Marsha, as well as your son, Matthew, shall be under the support of the properties of the absolute community during the proceedings, unless the final judgment is rendered because this will terminate the obligation of mutual support.

C. How will the properties you helped purchase during the marriage be divided? It is provided in Art. 101 of the Family Code that, A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. It is evident in your stated facts that you have not visited nor communicated and disclosed any information of your whereabouts with Aunt Marsha for 10 months and you also said that you have just recently left the country on a 9-month voyage to Italy, which is a requisite of your profession as a seaman. Thus, it can be presumed that Aunt Marsha may or may not seek remedy of her situation and file for a petition against you as the aggrieved spouse that you have abandoned. Moreover, still provided in Art. 101 of the Family Code that, If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole

administrator of the absolute community, subject to such precautionary conditions as the court may impose. Presumably, if Aunt Marsha does chose to go on with the action regarding the abandonment, the possibility of the court granting her a receivership may prosper. This judicial separation of property will be in her favor and also the authority to be the exclusive administrator of the absolute community. Nonetheless, the courts ruling will definitely not in her favor because your profession as a seaman is a Just Cause for abandonment. However, if the opposite may likely to occur, Aunt Marsha choosing not to avail legal remedies regarding the abandonment, the general rule is that a conjugal partnerships net gains or benefits shall be equally divided. This is in accordance with Art. 106 of the Family Code, which provides that, under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. It is until the dissolution and liquidation of the conjugal partnership that the equal right to the conjugal assets bestowed upon spouses shall prosper. Art. 116 of the Family Code provides that all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, it is still presumed to be conjugal unless the contrary is proved. Thus, the equal partition of your house and lot in Mandaluyong worth Php7 million, the 3 cars that worth Php 600,000 each, the Php500, 000 in time deposit; the Php340,000 worth of jewelry, and the Php250,000 worth of stock shares in PhilAm Life Corporation will be covered by this save it is otherwise agreed upon in the marriage settlements. Nevertheless, the provision of Art. 102, Sec. 6 of the Family code states that, the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children. This is if the parties otherwise agree upon it. Therefore, if you won custody of your son Michael, the possession of the house and lot in Mandaluyong shall be adjudged to you.

D. Whether you can obtain the custody of your eight-year old son Matthew? The custody of your eight-year old son Matthew shall be decided by the court on grounds that will suit the best interest of the child. This is whether you shall decide to continue in pursuing the filing of a petition for a declaration of nullity of your marriage or the annulment of it while the action is pending and while there is absence of sufficient provisions in a written agreement between you and Aunt Marsha regarding the custody and support of your child, Matthew. The courts

decision shall be in accordance with Art. 49 of the Family Code, the Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. Moreover, in accordance with Article 213 of the Family Code which regards in cases of the separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take all the relevant considerations into account, mainly the childs (over seven years of age) choice provided that the parent that is chosen is capable or suitable. All of the answers regarding your queries are all just recommendations for actions that you can take provided that you shall give me more factual basis so we can pinpoint what recourse should we apply. If you happen to find a recourse that can suit your circumstances I can prepare the drafts for the petitions. Do not hesitate to call to express your desired course of action to take so we can further discuss them and so that I can gather more adequate amount of factual basis from that can we use to support the legal basis and opinions I presented.

Truly yours, Julian Paul S. Cacho

BIBLIOGRAPHY The Family Code of the Philippines