Family Code of the Philippines Faqs Essay Example For Students

Family Code of the Philippines Faqs Essay Disclaimer Content on this web page is informational in nature, not specific legal advice, and someone seeking legal advice should consult with a lawyer licensed in their jurisdiction. Divorce Q. Is foreign divorce between Filipinos recognized in the Philippines? A. No, a foreign divorce between Filipino citizens is not recognized as valid in the Philippines and neither is the marriage contracted with another party subsequent to the foreign decree of divorce entitled to validity (Art. 26, Family Code). Foreign Adoption Q. Can a foreigner adopt a child in the Philippines? A Yes, under Republic Act No. 043 otherwise known as Inter-Country Adoption law, it allows a foreigner to adopt a child in the Philippines. Child Custody Q. In case of separation-in-fact of parents, who has the right of custody over the child? A. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise (Second paragraph, Art. 213, Family Code). Child Support Q. Can I get support for my child even though I am not married to the father? A. Yes, parents are obliged to support their illegitimate children (Art. 195, Family Code). Nullity of Marriage Q. Do I need a judicial declaration of nullity of a previous marriage before contracting a subsequent marriage? A. Yes, a judicial declaration is needed to determine whether a person is legally free to contract a second marriage to avoid liability for bigamy (Art. 40, Family Code; Mercado v. Tan, G. R. No. 137110, August 1, 2000). Q. May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? A. Yes, the Court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. Ninal v. Bayadog, G. R. No. 133778, March 14, 2000, 328 SCRA 122). Bigamy Nullity of Marriage Q. Is the pendency of a civil case for declaration of nu llity of marriage a prejudicial question to suspend the criminal case for bigamy? A. No, the prosecution of the criminal case cannot be delayed or frustrated by filing belatedly a judicial declaration of nullity of first marriage. (Bobis v. Bobis, G. R. 138509, July 31, 2000). Psychological Incapacity Q. What do you mean by psychological incapacity as a ground for declaration of nullity of marriage? A. In the Supreme Court Decision entitled, Hernandez v. Court of Appeals and Hernandez, G. R. No. 126010, December 8, 1999, 320 SCRA 76, citing Santos v. Court of Appeals, psychological incapacity was defined as follows: Psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate. The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent, and other onditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable. Further, the Supreme Court cited Republic of the Philippines v. Court of Appeals, to wit: The root cause of the psycho logical incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under principle of ejusdem generis (citing Salita v. Magtolis, supra) nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. Inheritance of Adopted Children Q. What is the share of the legitimate parents or ascendants if they concur with an adopted child as regards the estate of the adopter? A. The adopted shall exclude the legitimate parents or ascendants as they are declared to be legitimate children of the adopter according to Art. 89, Family Code. Surnames Q. Can an illegitimate child use the surname of his father? A. As a rule, illegitimate children shall use the surname and shall be under the parental authority of their mother (Article 176, Family Code). However, as an exception, illegitimate children may use the fathers surname if there has been an acknowledgement/recognition by the father (Art. 172, Family Code; DOJ Opinion No. 4, S. 1998). Change of First Name Q. What are the grounds for change of first name or nickname without a judicial order? A. Republic Act No. 048 dated March 22, 2001 provides the grounds for change of first name or nickname, to wit: 1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or merely difficult to write or pronounce; 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community or; 3. The change will avoid confusion. Implementing Rules and Regulations of Republic Act No. 9048 Q What is the National Statistics Office Administrative Order No. 1, Series of 2001 (July 24, 2001)? A It is the implementing rules and regulations of RA 9048 which provides for the correction of clerical or typographical errors and change of first name or nickname. Q Who are authorized to correct clerical or typographical error and to change first name or nickname? A The city/municipal civil registrar, Consul General, including the Clerk of the Sharia Court in his capacity as District or Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces and Conversions, are hereby authorized to correct clerical or typographical error and to change name or nickname in the civil registrar. Q What is a clerical or typographical error under the IRR? A It refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. Q Who may file the petition? A Any person of legal age, having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register, may file the petition. A person is considered to have direct and personal interest when he is the owner of the record, or the owners spouse, children, parents, brothers, sisters, grandparents, guardian, or any other person duly authorized by law or by the owner of the document sought to be corrected: Provided, however, That when a person is a minor or physically or mentally incapacitated, the petition may be filed on his behalf by his spouse, or any of his children, parents, brothers, sisters, grandparents, guardians, or persons duly authorized by law. Q What is the form and content of the petition? A The petition shall be in the prescribed form of an affidavit, subscribed and sworn to before any person authorized by law to administer oath. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries sought to be corrected or the first name sought to be changed, and the correction or change to be made. Q Where can you file the petition? A The verified petition may be filed, in person, with the Local Civil Registry Office (LCRO) of the city or municipality or with the Office of the Clerk of the Sharia Court as the case may be, where the record containing the clerical or typographical error to be corrected, or first name to be changed, is registered. When the petitioner had already migrated to another place within the Philippines and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the Record-Keeping Civil Registrar (RKCR), the petition may be filed, in person, with the Petition-Receiving Civil Registrar (PRCR) of the place where the migrant petitioner is residing or domiciled. Any person whose civil registry record was registered in the Philippines, or in any Philippine Consulate, but who is presently residing or domiciled in a foreign country, may file the petition, in person, with the nearest Philippine Consulate, or in accordance with Rule 3 thereof. Law on Early Childhood Care and Development (ECCD) Q What is the ECCD Act? A The ECCD Act is the institutionalization of a National System for Early Childhood Care and Development that is comprehensive, integrative and sustainable, that involves multisectoral and inter-agency collaboration at the national and local levels among government; among services providers, families and communities; and among the public and private sectors, non-government organizations, professional associations, and academic institutions. This system shall promote the inclusion of children with special needs and advocate respect for cultural diversity. It shall be anchored on complementary strategies for ECCD that include service delivery for children from conception to age six (6), educating parents and caregivers, encouraging the active involvement of parents and communities in ECCD programs, raising awareness about the importance of ECCD, and promoting community development efforts that improve the quality of life for young children and families. Same Sex Marriages EssayA The rules shall apply to all officials and employees in government, whether in the Career or Non-Career service and holding any level of position, including Presidential appointees and elective officials regardless of status, in the national or local government, state colleges and universities, including government-owned or controlled corporations, with original charters. Q Under the Rules, what is the definition of the administrative offense of sexual harassment? A The administrative offense of sexual harassment is an act, or a series of acts, involving any unwelcome sexual advance, request or demand for a sexual favor, or other verbal or physical behavior of a sexual nature, committed by a government employee or official in a work-related, training or education related environment of the person complained of. Q What is work-related sexual harassment? A Work-related sexual harassment is committed under the following circumstances: . Submission to or rejection of the act or series of acts is used as a basis for any employment decision (including, but not limited to, matters related to hiring, promotion, raise in salary, job security, benefits and any other personnel action) affecting the applicant/employee; or 2. The act or series of acts have the purpose or effect of interfering with the complainants work performance, or creating an intimidating, hostile or offensive work environment; or 3. The act or series of acts might reasonably be expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a co-employee, applicant, customer, or ward of the person complained of. Q What is education or training-related sexual harassment? A Education or training-related sexual harassment is committed against one who is under the actual or constructive care, custody or supervision of the offender, or against one whose education, training, apprenticeship, internship or tutorship is directly or constructively entrusted to, or is provided by, the offender, when: . Submission to or rejection of the act or series of acts is used as a basis for any decision affecting the complainant, including, but not limited to, the giving of a grade, the granting of honors or a scholarship, the payment of a stipend or allowance, or the giving of any benefit, privilege or consideration. 2. The act or series of acts have the purpose or effect of interfering with the performance, or creating an intimidating, hostile or offensive academic environment of the complainant; or 3. The act or series of acts might reasonably be expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a trainee, apprentice, intern, tutee or ward of the person complained of. Q What are the forms of sexual harassment? A The following are illustrative forms of sexual harassment: a. ) Physical a. 1) Malicious touching a. 2) Overt sexual advances a. 3) Gestures with lewd insinuation b. ) Verbal, such as but not limited to, requests or demands for sexual favors, and lurid remarks c. ) Use of objects, pictures or graphics, letters or written notes with sexual underpinnings . ) Other forms analogous to the foregoing. Q Who are the persons liable for sexual harassment? A Any government official or employee, regardless of sex, is liable for sexual harassment when he/she: a. ) directly participates in the execution of any act of sexual harassment as defined by the Rules; b. ) induces or directs another or others to commit sexual harass ment as defined by the Rules; c. ) cooperates in the commission of sexual harassment by another through an act without which the sexual harassment would not have been accomplished; d. cooperates in the commission of sexual harassment by another through previous or simultaneous acts. Q In what places may sexual harassment happen? A Sexual harassment may take place 1. In the premises of the workplace or office or of the school or training institution; 2. In any place where the parties were found as a result of work or education or training responsibilities or relations; 3. At work or education or training related social functions; 4. While on official business outside the office or school or training institution or during work or school or training-related travel; . At official conferences, fora, symposia or training sessions; 6. Or by telephone, cellular phone, fax machine or electronic mail. Child Abuse, Exploitation and Discrimination Act of 1992 Q What constitutes child abuse? A Under Republic Act 7610 dated August 1992, child abuse is defined as the maltreatment of the child whether habitual or not, and which may be committed in various forms. Article 1, Section 3 (b) of R. A. 7610 provides for the following instances: 1. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; 2. Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; 3. Unreasonable deprivation of his basic needs for survival, such as food and shelter; or, 4. Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development and in his permanent incapacity or death. 5. Further, under . R. A 7610, child abuse per se, is not punished as a distinct and separate crime but is subsumed by ordinary crimes. International Child Abduction Q What is the Hague Convention on International Child Abduction? A The Hague Convention on International Child Abduction is concerned with international situations the objective of which is to secure the prompt return of children wrongfully removed to, or retained in any Contracting State; and that respect will be ensured for rights of custody and access existing under the law of one Contracting State in other Contracting States. The first paragraph of the Preamble of the Convention also announces how the States parties are concerned that the interests of children are of paramount importance in matters relating in the custody. Q When shall the removal or the retention of a child be considered wrongful? A The removal or the retention of a child is to be considered wrongful where: 1. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and 2. At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. United Nations Convention on the Rights of the Child Q What is the guiding principle of the Convention on the Rights of the Child? A The Convention in its Preamble, affirms the fact that children possess inherent dignity and human rights, but their physical and mental immaturity make them vulnerable to abuse and exploitation. It emphasizes the need to provide children with special care and assistance including legal protection before and after birth. This statement gives direction to issues concerning the right to life of the unborn. It likewise recognizes the role of community traditions and cultural values in shaping the character of the child. Q What is the definition of a child under the Convention? A The Convention sets the standard definition of children to be those persons who are below (18) years of age. However, the Convention also recognizes the fact that in some States, the age of majority may be attained earlier as dictated by their cultures. In the same manner, the age of majority also varies according to the assumption of responsibility as provided by law. It is also a guiding principle that: 1. States Parties shall respect and ensure the rights set forth in the resent Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents or legal guardians race, color, sex, language, religion, political or other opinion, national, ethnic, or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on th e basis of the status, activities, expressed opinions, or beliefs of the childs parents, legal guardians, or family members. . All efforts and actions taken by the State shall consider at all times the best interests of the child. Q Can a child under seven (7) years of age be separated from the mother? A A child under seven (7) years of age shall not be separated from the mother, unless the court finds compelling reasons to order otherwise. (Article 213, E. O. 209, as amended; Cervantes v. Fajardo, 169 SCRA 575 ). Illegitimate Children Q Who are considered illegitimate children under the Family Code? A Children conceived and born outside a valid marriage are illegitimate. An illegitimate child shall use the surname of the mother. Section 5 of the Civil Registry law requires that the birth certificate of the illegitimate child shall be signed and sworn to jointly his/her parents or only by the mother if the father refuses. It further provides that in the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child or to give therein any information by which such father could be identified. An illegitimate child, however, can establish the illegitimate filiation, if impugned, under the Family Code. Under Article 176 of the Family Code the illegitimate child shall always be under the parental authority of the mother and shall be entitled to support in conformity with the Code. The legitime of the illegitimate child shall consist of one-half of the legitime of a legitimate child. The child can present a judicial declaration or a record of birth or show the admission of filiation in a public document or a private handwritten instrument by the parent concerned. In the absence thereof, the open and continuous possession of illegitimate filiation or other means allowed by the Rules of Court may be presented. Artificial Insemination Q What does the Family Code provide on artificial insemination? A- The Family Code provides as follows, to wit: Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with sperm of the husband or that of donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with birth certificate of the child. Foreign Marriages of Philippine Citizens Q What is the status of a Filipino citizen who is married to a foreigner and subsequently, divorce is obtained abroad by the alien spouse? A Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law (2nd paragraph, Article 26, Family Code as amended by Executive Order No. 227 dated July 17, 1987). Q What are the exceptions to Executive Order No. 227 dated July 17, 1987? A The said Executive Order does not apply to the following: 1. To a divorce obtained by a Filipino abroad from his or her Filipino spouse, which divorce is void because divorce is not allowed in the Philippines, and a Filipino citizen is governed by his nationality law which follows him wherever he goes. (Article 15, Civil Code). 2. To a divorce obtained by a former Filipino citizen who had been naturalized in another country after his naturalization.