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ANNULMENT

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ADOPTION

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Articles

PRESCRIPTIVE PERIOD FOR BIGAMY
as penned in
JOSE C. SERMONIA vs.
COURT OF APPEALS
G.R. No. 109454, June 14, 1994


Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first 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. Bigamy carries with it the imposable penalty of prision mayor. Being punishable by an afflictive penalty, this crime prescribes in fifteen (15) years. The fifteen-year prescriptive period commences to run from the day on which the crime is discovered by the offended party, the authorities, or their agents

In an information filed on 26 May 1992, petitioner Jose C. Sermonia was charged with bigamy before the Regional Trial Court of Pasig, Br. 151, for contracting marriage with Ma. Lourdes Unson on 15 February 1975 while his prior marriage to Virginia C. Nievera remained valid and subsisting.

Petitioner moved to quash the information on the ground that his criminal liability for bigamy has been extinguished by prescription.

In the order of 1 October 1992, respondent judge denied the motion to quash. On 27 October 1992, he likewise denied the motion to reconsider his order of denial.

Petitioner challenged the above orders before the Court of Appeals through a petition for certiorari and prohibition. In the assailed decision of 21 January 1993, his petition was dismissed for lack of merit.

In this recourse, petitioner contends that his criminal liability for bigamy has been obliterated by prescription. He avers that since the second marriage contract was duly registered with the Office of the Civil Registrar in 1975, such fact of registration makes it a matter of public record and thus constitutes notice to the whole world. The offended party therefore is considered to have had constructive notice of the subsequent marriage as of 1975; hence, prescription commenced to run on the day the marriage contract was registered. For this reason, the corresponding information for bigamy should have been filed on or before 1990 and not only in 1992.


RULING:

While we concede the point that the rule on constructive notice in civil cases may be applied in criminal actions if the factual and legal circumstances so warrant, we agree with the view expounded by the Court of Appeals that it cannot apply in the crime of bigamy notwithstanding the possibility of its being more favorable to the accused. The appellate court succinctly explains —

Argued by the petitioner is that the principle of constructive notice should be applied in the case at bar, principally citing in support of his stand, the cases of People v. Reyes (175 SCRA 597); and People v. Dinsay (40 SCRA 50).

This Court is of the view that the principle of constructive notice should not be applied in regard to the crime of bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by the offender in secrecy from the spouse of the previous subsisting marriage.

Also, a bigamous marriage is generally entered into in a place where the offender is not known to be still a married person, in order to conceal his legal impediment to contract another marriage.

In the case of real property, the registration of any transaction involving any right or interest therein is made in the Register of Deeds of the place where the said property is located. Verification in the office of the Register of Deeds concerned of the transactions involving the said property can easily be made by any interested party. In the case of a bigamous marriage, verification by the offended person or the authorities of the same would indeed be quite difficult as such a marriage may be entered into in a place where the offender is not known to be still a married person.

While the celebration of the bigamous marriage may be said to be open and made of public record by its registration, the offender however is not truthful as he conceals from the officiating authority and those concerned the existence of his previous subsisting marriage. He does not reveal to them that he is still a married person. He likewise conceals from his legitimate spouse his bigamous marriage. And for these, he contracts the bigamous marriage in a place where he is not known to be still a married person. And such a place may be anywhere, under which circumstance, the discovery of the bigamous marriage is rendered quite difficult and would take time. It is therefore reasonable that the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their agency (sic).


FILIPINO DUAL CITIZENSHIP
By: Atty. Lif Gonzales
May 21, 2018

Republic Act No. 9225, otherwise known as “Citizenship Retention and Re-acquisition Act of 2003.” was enacted to allow former filipino Citizens who became citizens of another country to retain or re-acquire their former citizenship. By this, Filipinos may still enjoy and exercise the rights and privileges afforded to Citizens of the Philippines.

What are the instances in which dual citizenship may apply?
Those who were born in another country and acquired that countries citizenship by birth but retained his filipino citizenship because his parents are or one of his parents is a filipino;

Those who acquired the citizenship of their spouse by reason of his/her marriage to the foreign spouse;
Natural born citizens who acquired citizenship of another country by naturalization;

How do we apply for dual citizenship?

1. Secure a pro-forma application/petition and issuance of Identification (IC) with the Bureau of Immigration;
2. Applicants shall likewise apply for the cancellation of his Alien Certificate of Registration (ACR) with the Bureau;
3. Aliens who are not registered with the Bureau shall apply with the nearest Philippine Embassy/Consulate;

The same applies to those who are outside the Philippines who wants to apply for dual citizenship.

What are the documentary requirements in applying for a Dual Citizenship?

An authenticated Certificate of Live Birth secured from the PSA;
Accomplished Petition for Dual Citizenship (secured from the Bureau);
Payment of processing fee which is around 50USD;
Thereafter, a schedule for the Oath of Allegiance will be set.
As mentioned above, the retention or re-acquisition of the Philippine Citizenship bestows the enjoyment of full civil and political rights such as the right of suffrage, right to seek elective public positions; be appointed to any government/ public office; practice their profession.

In addition, those who re-acquired or retained their Filipino citizenship may acquire real properties in the Philippines and the prohibition under the constitution would not apply to them.

The process of acquiring dual citizenship for former filipinos is merely administrative and does not require a court proceeding unless otherwise advised by the Bureau.

Annulment distinguished from Nullity of Marriage
By: Atty. Lif Gonzales

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.

MARRIAGE AND ITS VALIDITY
BY: Atty. Lif Gonzales

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.

 

Adoption under Philippine Law
By: Atty. Lif Gonzales
May 16, 2018

As much as possible, the custody of the child should remain with his/her parents. In the event that the custody of the child cannot be with the biological parents and adoption is the only option, the order of priority should preferably be with the child’s extended family such as his/her uncle or aunts.

The Domestic Adoption Act of the Philippines has likewise provided provisions for the extended family to avail of the legal process of adoption to secure, not only the custody of the child but likewise his/her legitimacy status.

Who May Adopt?

According to Section 7 of the Domestic Adoption Act of 1998, (a) any Filipino citizen, of legal age, in full civil capacity, with good moral character, not convicted of any crime involving moral turpitude, at least 16 years older than the child, and financially capable to support the child; (b) Foreigners possessing the same qualifications as the filipino citizens; (c) the guardian with respect to his ward but only after the termination of his guardianship and clearance of his/her financial accountability.

Foreigners may also adopt

As to foreigners, additional requirements are needed to further qualify him to adopt such as: (a) diplomatic relations between his country and ours; (b) residency requirement of 3 years in the Philippines; (c) certificate of capacity to adopt issued by his consular office.

However, these requirements may be waived if : (a) foreigner is a former filipino adopting a child within the 4th civil degree of consanguinity or affinity; (b) foreigner is adopting the child of his/her filipino spouse; (c) foreigner married to a filipino and the child is related to his filipino spouse within the 4th civil degree of consanguinity or affinity.

Documentary requirements

The following are the basic documentary requirements that needed to be filed in court along with the petition for adoption:

Certificate of employment
Bank statements
Titles of real properties, if any
Marriage certificate of petitioners
Birth Certificates of the petitioners
Valid Government IDs
Barangay Residence Certificate
Police Clearance
NBI Clearance
Clearance from the Office of the City Prosecutor
Clearance from the Office of the Clerk of Court MTC
Clearance from the Office of the Clerk of Court RTC
Clearance from Barangay
Birth certificate of the child to be adopted
If petitioners have children, affidavit of consent of their children
Affidavit of consent of the biological parents;
If the child to be adopted is 10yrs old and above, his consent to be adopted
Case study report by the DSWD

How long does an adoption case lasts?

The period to complete an adoption case depends on several matters. A case study report must be made by a licensed social worker of the DSWD before a hearing is set.
Once the court finds the petition sufficient in form and substance, an order for a hearing date will be set which shall not exceed 6 months from the date of the Order.
This means that for at least a period of 6 months, there may not be any hearing yet as said period may be used by the social worker to complete his/her case study report.

The case study report are strictly confidential and not even the petitioners or their counsels are allowed to read said report. The case study report is for the court’s eyes only.

Effects of Adoption

After the court issues a decree of adoption, the following legal effects take place:

All legal ties between the biological parents and the child shall be severed and shall be vested to the adopters, except if the biological parent is also one of the adopters. In effect, the biological parents no longer has parental authority over the child.

The adopted child shall be considered as the legitimate child of the adopters. The status of the adopted child shall be like that of those children who are naturally born by the adopters.

The adopted child shall have successional rights from her adopters. The share of the adopted child shall be equal to the legitimate children of the adopters.

GUIDELINES IN THE APPLICATION OF RA 10951
as penned in the case of Rolando Elbanbueda, G.R. No. 237721


On August 29, 2017, RA No. 10951 was promulgated and made certain amendments to the Revised Penal Code on certain crimes which basically lowered their penalties.

The first case to which this law has been applied to was in Hernan vs. Sandiganbayan. However, despite the fact that Hernan has already been benefited of this new law, other detainees are still having some difficulties in getting released from prison as the application of the law was very vague. lawyers both in the private sector and government are confused as to how the said law should be applied.  There was no clear guideline provided in Hernan vs. Sandiganbayan.

On July 31, 2018, in the case of Rolando Elbanbueda with G.R. No. 237721, the Supreme Court has finally provided a guideline for petitioners of RA 10951, to wit:

I. Scope. these guidelines shall govern the procedure for actions seeking (1) the modification, based on the amendments introduced by RA No. 10951, of penalties imposed by final judgments; and, (2) the immediate release of the petitioner-convict on account of full service of the penalty/penalties, as modified.
 
II.  Who may file. The Public Attorney’s Office, the concerned inmate, or his/her counsel/representative, may file the petition.

III.   Where to file.  The petition shall be filed with the Regional Trial Court exercising territorial jurisdiction over the locality where the petitioner-convict is confined. The case shall be raffled and referred to the branch to which it is assigned within three (3) days from the filing of the petition.

IV Pleadings.
    (A) Pleadings allowed. — The only pleadings allowed to be filed are the petition and the comment of the OSG. No motions for extension of time, or other dilatory motions for postponements, shall be allowed. The petition must contain a certified true copy of the Decision sought to be modified and, where applicable, the mittimus and/or a certification from the Bureau of Corrections as to the length of the sentence already served by the petitioner-convict.

      (B)  Verification. — The petition must be in writing and verified by the petitioner-convict himself.

V.  Comment by the OSG. Within ten(10) days from notice, the OSG shall file its comment to the petition.

VI.  Effect of failure to file comment. Should the OSG fail to file the comment within the period provided, the court, motu proprio, or upon the motion of the petitioner-convict, shall render judgment as may be warranted.

VII.  Judgment of the court. To avoid any prolonged imprisonment, the court shall promulgate judgment no later than ten (10) calendar days after the lapse of the period to file comment. The judgment shall set forth the following:
    a. The penalty/penalties imposable in accordance with RA 10951;
    b. Where proper, the length of time the petitioner-convict has been in confinement (and whether time allowance for good conduct should be allowed); and
    c. Whether the petitioner-convict is entitled to immediate release due to complete service of his sentence/s, as modified in accordance with RA 10951.

The judgment of the court shall be immediately executory, without prejudice to the filing before the Supreme Court of a special civil action under Rule 65 of the Revised Rules of Court where there is showing of grave abuse of discretion amounting to lack or excess of jurisdiction.

VIII.  Applicability of the regular rules. The Rules of Court shall apply to the special cases herein provided in a suppletory capacity insofar as they are not inconsistent therewith.


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