BALINGIT AND ASSOCIATES

0168 Aguinaldo St., Poblacion

Lupon, Davao Oriental
shawee712003@yahoo.com; (087)808-0344

September 28, 2015

MS. ROSE CORONA
1234 Rizal St., Poblacion
Lupon, Davao Oriental
Dear Ms. Corona,
We received your letter on September 21, 2015 asking for legal opinion
regarding your marriage with Mr. Roger Corona. Thank you for trusting our firm.
I will first restate the facts to confirm their accuracy. Next, I will provide you with
the provisions of law applicable to your case, and further provide you with an
analysis as the law applies in the order the issues are stated in the succeeding
paragraph. Lastly, I will give you our opinion so you can make a qualified
decision regarding your situation.
The facts revealed that you have contracted marriage with Mr. Corona on
February 10, 2010. You are blessed with two children, and a house and lot
where you live now. However, unknown to you, your husband has an existing
marriage with Rosanna David celebrated on February 14, 2009, which you had
confirmed when you got a Certificate of No Marriage (CENOMAR) in 2014 from
the Local Civil Registrar.
We have defined the following relevant issues:
(1) Who will have custody of your children?
(2) Will your husband be obliged to support you and your children even if
you separate?
(3) What governs your property relation?
(4) What will be the proper action to take to settle your relationship with
your husband?
(5) What are your other rights?
The provisions of the Family Code of the Philippines are instructive in
your case. But before we will address the issues, it is important to define first
the status of your marriage with Mr. Corona.
Article 41 of the Family Code provides: A marriage contracted by any
person during the subsistence of a previous marriage shall be null and void.
Corollary to this provision is Article 35 of the Code that enumerates marriages
void from the beginning, among others, those bigamous or polygamous
marriages. The facts of your case dictate that your marriage with Mr. Corona is
bigamous, thus, void ab initio.

Who will then have custody of your children? Article 165 of the Family
Code provides that children conceived and born outside a valid marriage are
illegitimate. Further, Article 176 of the same Code provides that illegitimate
children shall be under the parental authority of their mother, and shall be
entitled to support. Article 213 of the Family Code likewise provides that in
case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age,
unless the parent chosen is unfit. No child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order
otherwise.
The Court, in a decided case, explained: in custody disputes, it is
axiomatic that the paramount criterion is the welfare and well-being of the child.
In arriving at its decision as to whom custody of the minor should be given, the
court must take into account the respective resources and social and moral
situations of the attending parents.
The Supreme Court in the case of Tonog vs. CA (GR No. 122906,
February 7, 2002) enumerated some of the compelling reasons for a mother to
lose custody of the child: neglect, abandonment, unemployment and immorality,
habitual drunkenness, drug addiction, maltreatment of the child, insanity,
affliction with a communicable disease.
The legal obligation of the father to provide for support to his legitimate
and illegitimate children is based on Article 195 (3) of the Family Code, which
states that parents and their illegitimate children and the legitimate and
illegitimate children of the latter have reciprocal legal obligation to provide
support to each other. Article 176 of the Code also gives successional rights to
the illegitimate children so long as they have been recognized by their putative
parents.
Article 194 of the Code clearly defined: Support comprises everything
indispensable for sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the family.
Accordingly, in a petition for support filed by illegitimate child against his
father, a proof of filiation is necessary to prove paternity. The filiation of
illegitimate children is established in any of the following manners mentioned
under Article 172 in relation with Article 175 of the Family Code: (1) The record
of birth appearing in the civil register or a final judgment; or (2) An admission of
legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned. In the absence of such evidence said filiation
may be proved by: (1) The open and continuous possession of the status of a
legitimate child; or (2) Any other means allowed by the Rules of Court and
special laws.
Thus, the mother can only demand legal support for her illegitimate child
if she has evidence to prove the father of the child. However, support does not
2

include that for the mother.

As to property relations, Article 148 of the Family Code provides that in
case of cohabitation, such as in void marriages, only 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.
Proof of actual contribution is required. In the absence of proof of extent
of the parties respective contribution, their shares are presumed to be equal.
Under Article 148, the properties acquired by the parties through their actual
joint contribution belong to the co-ownership. The same rule and presumption
shall apply to joint deposits of money and evidences of credit. If one of the
parties is validly married to another, his or her share in the co-ownership shall
accrue to the absolute community or conjugal partnership existing in such valid
marriage.
Although your marriage is void from the beginning, the law still requires
you to obtain a declaration of absolute nullity of your marriage. Parties to a
marriage should not be allowed to assume that their marriage is void even if
such be the fact but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again (Domingo vs. CA, GR No.
104818, September 17, 1993).
We are therefore of the opinion that you should file a petition for the
declaration of absolute nullity of your marriage with Mr. Roger Corona. The final
judgment of nullify of marriage shall provide for the liquidation, partition and
distribution of your properties, the custody and support of your children, and the
delivery of your childrens presumptive legitimes.
Further, you can also file a criminal case for bigamy against Mr. Corona.
It is an essential element of the crime of bigamy that the second marriage (your
marriage), having all the essential requisites, would be valid were it not for the
subsistence of the first marriage.
This opinion is based only on the facts you furnished. Should these facts
change or when you learn of additional facts, please call us at once. Any
change in the facts, or new facts, may change the result of the opinion.
Very truly yours,

SHARON G. BALINGIT
Counsel