Sunday, September 29, 2013

Intricasies of Marriages: Some Legal Implications

As of writing, the Philippines and the Vatican are the only two countries which have no divorce law. While there are initiatives to lobby for the enactment of a divorce law, these have not been successful. But whether the Philippines should join the rest of the world in adapting a divorce law is still a much contested topic and should be a subject of another post.


This article will discuss the current laws governing the marriages of Filipinos and former Filipinos.

First, let us define what marriage means under the Philippine law. The Family Code provides:
"Marriage is a special contract of permanent union between a man and a woman entered into in accordance with 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 the marriage settlements may fix the property relations during the marriage within the limits provided by this Code."
From the provision of the law, marriage in the Philippines can be characterized as a special contract of permanent union. This is the reason why there is divorce is not recognized in this jurisdiction. It is also a union between a man and a woman only and thus in this jurisdiction, gay and lesbian marriages are not recognized as well. Marriage is entered into according to law and not merely subject to stipulations of the party. Marriage has for its purpose, the establishment of conjugal and family life.

Under the Philippine law, the following are the essential requisites of a valid marriage:
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.
The following are the formal requisites of a valid marriage:
1. authority of the solemnizing officer;
2. a valid marriage license except in the cases provided for in Chapter 2 of this Title; and,
3. a marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

In case of absence or defects, the effects shall be as follows:

a. In case of absence of any essential or formal requisites, marriage shall be considered void ab initio except that if the marriage is solemnized by an unauthorized person, the marriage will still be valid if either or both contracting parties believed in good faith that the solemnizing officer had legal authority (Art 35(2) of the Family Code).
b. In case of defect in the essential requisites renders the marriage voidable.
c. In case of irregularity in the formal requisites, the marriage will still valid but party responsible for such irregularity shall be civilly, criminally and administratively liable.
Not all marriages however work out well. When marriages suffer from causes existing at the time of the celebration of marriage or during its existence, spouses have remedy under the law. In the legal perspective, marriage may be void ab initio (marriage is inexistent from the time of performance) or voidable (marriage is valid until annulled).

Under the law, there are at least two remedies by which spouses can avail to terminate a marriage. These are 1) declaration of nullity of marriage and 2) annulment of marriage. Declaration of nullity of marriage is an available remedy in void marriages. This action does not prescribe. The following are void marriages under the law:
1. Contracted by any party below 18 years old.
2. Solemnizing officer has no authority (except: either or both parties believed in good faith that the officer had authority).
3. Solemnized without license (except: when marriage license is not required).
4. Bigamous or polygamous marriages (with certain exceptions).
5. Mistake in identity.
6. Psychological incapacity. 
Annulment of marriage, on the other hand is available remedy for voidable marriages to be terminated.  The grounds for annulment of marriage are as follows:
1. Lack of parental consent.
2. Insanity of one of the parties.
3. Fraud
  •  non-disclosure of conviction by final judgment of crime involving moral turpitude
  • concealment of pregnancy by another man
  • concealment of sexually transmissible disease, regardless of nature, existing at the time of the marriage
  •  concealment of drug addiction, habitual alcoholism, homosexuality and lesbianism
4. Impotency
5. Affliction of sexually transmissible disease found to be serious and which appears incurable.

It may be simple to read but in reality marriage is a complicated topic. There are cases of Filipinos being married and then later on acquiring different citizenship by naturalization and getting divorced. What law should apply? Is the divorce valid? What is the status of the children if any? These are only some of the possible questions. However, it may be useful for anyone (Filipino) to remember that Article 15 of the Civil Code provides that 'laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.'

Wednesday, July 24, 2013

Facetime and Viber: Transforming the Landscape of Relationships

In a recent study conducted by the Cornell University and the City University in Hong Kong, researchers found that couples who lived far apart had stronger bonds, due to greater intimacy and sharing self revealing aspects of oneself.


This maybe partly due to the recent advances in technology which have paved the way to less costly, more convenient and more personal lines of communication. Mainly, however, the reason behind the success of any relationship is the resolve to love, trust and respect each other.

Recently, I met a Philippine Army Scout Ranger who has been married to his wife (a former Army military nurse) for several years. They have been together for the past 15 years but have been geographically apart ever since then. Being both from the military, they were often assigned in different places.  Six years ago, the wife went to the United States (US) to work as a nurse and up to now, she is still in the US. The husband is still in the Philippines and they are not expecting to be together for good in the next ten years (which are the years he still has to be in active duty). When I asked him to sum up all the years they have been together, he said that it would not even amount to a year but only months. All in all, they have been (geographically) together for only 8 months and while apart, they have been communicating through Skype.

In the Philippines, there are several ways by which families, loved ones communicate with each other. For Apple users, the iMessage and Facetime are two breakthroughs to communication. Through iMessage, an iphone, ipad or itouch with wi-fi or 3g internet connection can send messages to another iphone, ipad, itouch user anywhere in the world. I hate to say this, 'but wait there is more'! Through iMessage, videos and photos can also be instantly transmitted. It does not stop there because, by configuring the settings, the time when the message was delivered, received and read can also be viewed. No more excuses for faulty connections, eh? Through Facetime, on the other hand, as the name implies, you can now see your loved ones face to face without turning on that laptop or that desktop with video camera. In real time, you will be able to see another person open his eyes in the morning, eat lunch which you watched him cook, see the lake by which the other is standing by, or see how the other falls asleep in the evening. These applications have been mainstreamed that they are sometimes being used as verbs like, 'I will facetime you later' or 'Viber me'.

For non-Apple users, there are also tons of applications with the same and at times better features than iMessage and Facetime. For one, there is Viber. Through Viber, friends can chat about (anyone and) anything, pester and send stickers to each other anytime of the day and night. Like Facetime, video call is also available here. There is also WeChat (again with the same features as Facetime and iMessage combined).  These applications have a feature where voice can be recorded and transmitted. Whoa! There is also Line which has the same features as WeChat. Of course, who can ever forget the classics, Yahoo Messenger, Skype, Fring, and Facebook! Now, communication has become more animated, graphical, real time, personal, etc etc. Wherever you may be, you will never feel alone. Geographical boundaries by which we are separated is continuously becoming a thing of the past. You might be sleeping in the Philippines and waking up in some other parts of the world. Holograms, teleporting might even become possible.

On the main aspect however, when there is a resolve to love, respect and trust each other, nothing can really be impossible. There is no greater connection than the connection of two souls. This is more powerful than any application available.

Tuesday, April 02, 2013

The Warrior

I'll cry a river of tears;
I'll wait for a thousand years;
Wide awake under the stars, I will lie;
Just to have a glimpse of that smile.
But will you do the same for me?

I'd tell you everyday how I feel;
Just so you'll know that this is real;
Cause baby, it's true what I say,
That I need you each and everyday.
But will you feel the same way for me?

I will watch you go to sleep;
Make sure I'd be the last memory you'd keep;
And that the nightmares of the past won't visit;
So that your dreams would always be sweet.
But will you be the same angel for me?

I'd fight for you in any battle;
To see you finally free from any shackle;
Until the wounds become merely scars;
And the troubles become unfamiliar.
But will you be my warrior too and fight my fears?

By the pale moon, I'll rage against the odds;
Weak and weary, faith will be my clad;
Crush my fears and maybe shed me some tears;
This time,  please hold my hand;
And in this battle, our victory will never end.

Thursday, January 24, 2013

THE JUDICIAL AFFIDAVIT RULE



A.M. No. 12-8-8-SC

Whereas, case congestion and delays plague most courts in cities, given the huge volume of cases filed each year and the slow and cumbersome adversarial system that the judiciary has in place;


Whereas, about 40% of criminal cases are dismissed annually owing to the fact that complainants simply give up coming to court after repeated postponements;


Whereas, few foreign businessmen make long-term investments in the Philippines because its courts are unable to provide ample and speedy protection to their investments, keeping its people poor;


Whereas, in order to reduce the time needed for completing the testimonies of witnesses in cases under litigation, on February 21, 2012 the Supreme Court approved for piloting by trial courts in Quezon City the compulsory use of judicial affidavits in place of the direct testimonies of witnesses;


Whereas, it is reported that such piloting has quickly resulted in reducing by about two-thirds the time used for presenting the testimonies of witnesses, thus speeding up the hearing and adjudication of cases;


Whereas, the Supreme Court Committee on the Revision of the Rules of Court, headed by Senior Associate Justice Antonio T. Carpio, and the Sub-Committee on the Revision of the Rules on Civil Procedure, headed by Associate Justice Roberto A. Abad, have recommended for adoption a Judicial Affidavit Rule that will replicate nationwide the success of the Quezon City experience in the use of judicial affidavits;
and

Whereas, the Supreme Court En Bane finds merit in the recommendation;

NOW, THEREFORE, the Supreme Court En Bane hereby issues and promulgates the following:

Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before:
(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC;

(2) The Regional Trial Courts and the Shari' a District Courts;

(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari' a Appellate Courts;

(4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and

(5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule.1

(b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers shalJ be uniformly referred to here as the "court."

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. -

(a) The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following:

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and

(2) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document or object evidence in his possession, he Inay, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted.


This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules.


Sec. 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the witness;

(b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:

Show the circumstances under which the witness acquired the facts upon which he testifies;
Elicit from him those facts which are relevant to the issues that the case presents; and
Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court;
(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same.

Sec. 4. Sworn attestation of the lawyer.

(a) The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that:

He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and
Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers.
(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment.

Sec. 5. Subpoena. - If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shal1 be understood to be ex parte.

Sec. 6. Offer of and objections to testimony in judicial affidavit.- The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Sec. 7. Examination of the witness on his judicial affidavit. - The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues.

Sec. 8. Oral offer of and objections to exhibits. - (a) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. (b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. (c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit.

Sec. 9. Application of rule to criminal actions. -

(a) This rule shall apply to all criminal actions:

Where the maximum of the imposable penalty does not exceed six years;
Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or
With respect to the civil aspect of the actions, whatever the penalties involved are.

(b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial.

(c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify.

Sec. 10. Effect of non-compliance with the judicial Affidavit Rule. -

(a) A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than Php l,000.0 nor more than Php 5,000.00, at the discretion of the court.

(b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination the witnesses there present.

(c) The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4 above. The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and Judicial Affidavit Rule would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than Php1,000.00 nor more than Php5,000.00, at the discretion of the court.

Sec. 11. Repeal or modification of inconsistent rules. - The provisions of the Rules of Court and the rules of procedure governing investigating officers and bodies authorized by the Supreme Court to receive evidence are repealed or modified insofar as these are inconsistent with the provisions of this Rule. The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby disapproved.

Sec. 12. Effectivity.- This rule shall take effect on January 1, 2013 following its publication in two newspapers of general circulation not later than September 15, 2012. It shall also apply to existing cases.

Manila, September 4, 2012.

Related News:

http://newsinfo.inquirer.net/337361/sc-modifies-implementation-of-judicial-affidavit-rule
http://www.sunstar.com.ph/manila/local-news/2013/01/09/supreme-court-revises-rules-judicial-affidavits-262078

How You Know You're Truly in Love?

Here are ten indicators (in no particular order) that you might have caught the love fever:

1. You can talk to the person from sunset to sunrise. Whether you are just staring at each other or discussing the Arab Spring or the West Philippine Sea issue or complaining about how your day went, if you can converse with a person without a single moment of boredom, you might be in love.

2. You can kiss the person. A friend of mine dated his bestfriend for a couple of months but they did not end up together. In fact, they did not even kiss. It is simply because there are people that you will never kiss (romantically) . The operative term is "can" and not "may."

3. You want to hug the person. Hugs are free but not all hugs give the same effect. There will always be that person whose hugs can wipe away your weariness and crush all your fears. If you feel that with someone, you might be in love.

4. You can sit beside the person, and feel happy. You might be sitting in front of the TV, under a tree,  in front of your Skype screen, or anywhere. Just the same, there is a feeling of contentment and of being home. You are not talking, just sitting there, doing nothing at all.

5. You think the person is funny, no matter how corny he or she really is. You just laugh at every joke he or she cracks. You laugh not necessarily on the outside but also in the inside. You are laughing because of the effort the person places in trying to make you laugh or smile.

6. You are fond of just staring at person. You just stare at him or her and see the whole world.

7. You think of the person and then you start to smile. The thought of him or her makes you smile just like that. You might be taking a serious exam or coming to work or to school and the thought of the person just flashes to you. Then you begin to smile and sometimes, even giggle.

8. You see the person as the most beautiful creation in the world. The person might be dark or fair; tall or short. His or her tooth might be chipped. In short, the person might not be physically perfect but you have looked beyond the imperfections and you have seen in him or her, the most beautiful soul ever.

9. You want to introduce the person to everyone important to you. You cannot stop talking about him or her. You are proud of the person. You are proud of your togetherness; of the partnership you two have created.

10. You are accidentally talking about something which is in the near future.  Anything which places your future selves together be it the school you want to go to, the place you want to settle in, the number of kids, etc. indicates the desire for a long term relationship. Then it might be true love.

When you fall in love, it is a temporary madness. It erupts like an earthquake, and then it subsides. And when it subsides, you have to make a decision. You have to work out whether your roots are become so entwined together that it is inconceivable that you should ever part. Because this is what love is. Love is not breathlessness, it is not excitement, it is not the desire to mate every second of the day. It is not lying awake at night imagining that he is kissing every part of your body. No... don't blush. I am telling you some truths. For that is just being in love; which any of us can convince ourselves we are. Love itself is what is left over, when being in love has burned away... -Iannis, Captain Corelli's Mandolin

Thursday, January 17, 2013

Not Once



I am not afraid of the miles between us,
For our love can build a sturdy bridge.
I am not afraid of the time we are apart,
For the years seemed like a day or two.

I am not afraid of autumn,
For inside, it will always be spring.
I am not afraid of winter,
For my heart is on fire for you.

I have dreamt of writing this poem.
Of saying the exact lines.
I am not afraid,
For even my dreams tell me not to.

Do not hesitate even for a while,
Do not be afraid.
For I have loved you,
Like how they did in the love songs.

I am not afraid, our love has made me brave.