Week 8

Relations between the spouses in cases where they de facto separate?

They are spouses who should still be obligated by the responsibilities of spouses in the FC

BUT they don’t have a decree of legal separation; they are basically estranged. 

SO – Court cannot force them to live together, and it cannot force them to not create seperate property relations (This being allowed as a stipulation of marriage in Art 1 of the FC)

What can be done if you’re in a De Facto seperation case, and the other person decides to cohabit with another person?

If either spouse in a De Facto separation enters into a relationship with another person, they can still be held civilly, administrative or criminally liable

Give me the case of Estrada v. Escriptor

Facts: Soledad Escritor, a court interpreter at Las Piñas RTC, was charged with ‘disgraceful and immoral conduct’ for cohabiting with another man besides her husband. She is a Jehovaa’s witness, and this is allowed by her sect subject to scrutiny by the Church.

Issue: Is she still administratively liable?

Ruling: No, because the freedom of religion allows for exceptions to accomodate religious practices, particularly in the Philippines which takes up the benevolent accomodation approach to the separation of Church and State

Give me the case of Banaag v. Espeleta

Facts: Espeleta is a court interpreter charged with gross misconduct because she lay with another woman’s husband

Issue: Is she to be held administratively liable?

Ruling: Yes, because she clearly acted against the image of the court and in contravention of its professional ethics.

NOTE: No religious component

What happens to the authority of the parents in cases where they de facto seperate

Their relations with the children vis a vis parental authority stays the same

Art 211 - the father and the mother shall have joint parental authority over their common children, in case of disagreement the father’s decision shall prevail

What FC article decides who has custody of the children in legal separation cases?

Art 213

Art. 213. 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. (n)ChanRoblesVirtualawlibrary

Sy v. CA?

Sea — Praying to a rain god

• Facts: Husband and Wife are fighting over their 2 minor children. The wife won custody in a writ of habeas corpus.

• Issue: Husband contends this is wrong and prays that the minors be awarded to him instead because she is mentally unstable (Praying in the rain, being poor) and she abandoned the family

• Ruling

  • When spouses live separately without a decree, the court shall award the care, custody, and control of each child

    • Will be for his best interest

    • Permits the child to live with the parent they prefer if over seven (7)

      • Unless the parent chosen is unfit due to moral depravity, habitual drunkenness, or poverty

• 
  

  • Wilson’s contention that his wife Mercedes was unfit was unsubstantiated

    • Cited she ws mentally unstable for praying outdoors in the rain, this isn’t sufficient evidence to prove insanity

    • She abandoned them because the family had driven her out due to religious differences

Effect of De Facto separation on property relations?

GE: Art 100: Separation in fact between husband and wife will not affect the absolute community except 

EXP:

1. Spouses who leave the conjugal home or refuse to live therein will not have the right to be supported (Support)

2. When consent of one spouse to do any transaction, judicial authorization shall be obtained in a summary proceeding (Property)

3. If there is insufficient community property, the separate property will be liable for supporting the family

   1. Upon a petition, the present spouse can actually administer the fruits of the other spouse’s property, and use is to satisfy their obligations

What is Art 100 and 127 of the Family Code? What does it do?

Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share. (178a)

Partosa-Jo v. CA

Facts:

Jose Jo cohabited with 3 women and had 15 kids. Primo Partosa-Jo, herein petitioner, is the first wife of Jose, whom she had a daughter with. She filed a complaint against Jose for separation of property in addition to an earlier action for support.

Issue:

The judicial separation of property sought was not allowed under law

Ruling:
Yes, she may file for this because he abandoned her and this is a valid grounds for separation of their property

Article 128, Family Code

If a spouse without just cause abandons the other or fails to comply with his or her obligation 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 conjugal partnership property, subject to such precautionary conditions as the court may impose.

How do you attain consent to do acts of ownership?

• GENERAL RULE: So normally you must get written consent to do this

• EXP: If you are leaving separately and they refuse, and they’ve abandoned you, you may do this through a judgement.

• 239 – Allows judicial authorization for these sorts of transactions (if separated in fact, or abandoned)W

Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts.

The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n)

• 242 – Notifies the spouse 

• 246 – If the petition is not resolved at a conference, the partition will be decided in a summary hearing with evidence, oral testimony, etc. 

• 247 – Decision is final and executory. 

Who may administer the property in a case of defacto seperation?

IF one spouse is unable to participate or is incapacitated, the other spouse can assume full control of administration 

BUT AGAIN 

• Powers of disposition or encumbrance cannot be done without written consent
  
  

WHY? Supreme Court rule on provisional orders provides – 02-11-12

• Administration of Common Property

• IF a spouse without just cause leaves

  • Court may issue a provisional order appointing the applicant or third person as receiver or sole administrator of common property

When can you get a judicial separation of property based on de facto separation

When a person's spouse abandons him or her or fails to comply with his or her obligations to the family 

• Specifically, when a person has left the conjugal dwelling for a period of three months or has failed to give indications of his whereabouts → presumed to have no intent to return

• Afterward, each spouse can basically own the fruits and earnings of the separate properties → Obligations to support the children continue, however 

Based on Art 135 (4) of the FC —

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

Can you administer the exclusive property of the other spouse in de facto separation?

Yes, if they’ve been judicially declared an absentee or become a fugitive from justice  — Why? To basically create means to support yourself through the fruits of the other spouse’s labor

SPECIFICALLY Parang siyang finders keepers when the other spouse isn’t around

As a result of Family Code Art. 142.

Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;

(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or

(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.

What other remedies are available to the wife in cases of abandonment in de facto separation

May file for a Protective Order under RA 9262

Tenchavez V Escana?

Facts: Escana is a wife who absconded from her husband after they had validly married.

She has since gone to America, abandoned him, got a divorce, and married an American husband

Issue:

Tenchavez filed for damages based on Escana’s parents discouraging their marriage, does he deserve these damages?

Ruling:

He deserves the damages but not from the parents (them encouraging them to get the marriage celebrated validly) but from Escana herself given she cohabits with another man, without legal capacity insofar as the foreign divorce is not recognized.

Article 15 of the Civil Code embodies the Lex Nationalii principle, which bans this from happening

Please compare the previous divorce laws in the Philipines

Siete Partida — Legal seperation if adultery, spouse wanted to enter into a religious order with permission, one of them became a heretic

Act No. 2710 — Passed in 1917, provided for absolute divorce based on criminal conviction for adultery or concubinate

Executive Order 141 — Japanese occupation; most liberal

After Japanese occupation, Act. No 2710 became prevailing law again.

Civil Code — No divorce; only legal separation was recognized for reasons of adultery or concubinage AND attempt on life of the petitioner (as seen in the case of Barrio v. Munoz)

Family Code — Recognizes divorce if between a Foreigner and a Filipino abroad

Also, Muslim Divorces under the CMPL

Give me the ways you can do a Muslim divorce?

• Repudiation of the wife by the husband (talaq)

• Vow of continence by the husband (ila)

• Injurious assimilation of the wife by the husband (zihar)

• Acts of imprecation (li’an)

• Redemption by the wife (khul’)

• Exercise by the wife of the delegated right to repudiate (tafwld)

• Judicial decree (Faskh)

What are the grounds under Faks

• Neglect or failure of the husband to provide support for the family

  • At least six (6) consecutive months

• Conviction of the husband by final judgement

  • Imprisonment for at least one (1) year

• Husband’s failure to perform marital obligation without reasonable cause

  • For six (6) months

• Impotency of the husband

• Husband’s insanity or affliction with an incurable disease

  • Which would make continuance of marriage injurious to the family

• Unusual cruelty of the husband

• Any other cause recognized under Muslim law

  • Either at the instance of the wife or the proper wali

What is the Effect of a Talaq of Faskh?

• When such becomes irrevocable, the marriage bond shall be severed

  • Have the capacity to remarry

  • Lose right to inherit from the other

• In the case of talaq;

  • Wife may be entitled to entire or half of talaq

  • Depends on whether the talaq was effected before or after consummation of the marriage

What is ‘idda

• In order for a woman to remarry, she must observe the period of ‘Idda

• CMPL Article 57:

  • Every wife shall be obliged to observe ‘Idda as follows

    • In case of death, four (4) months and (10) ten days from the death of her husband

    • In case of termination by divorce, three (3) monthly courses

    • In case of pregnancy, a period extending until delivery

  • If the husband dies while observing ‘Idda, another ‘Idda for death shall be observed

    • Three (3) monthly courses for divorce + four (4) months and (10) ten days for death

Give me the case of Yasin v. Sharia District Court

Facts: A muslim woman got a valid divorce decree, and wishes to revert back to her maiden name

Issue: Does she have a right to change her name back? She didn’t use rule 103 of the Rules of Court vis a vis a change of name

Ruling: She can! Because she reverts back to her maiden name, no need to use Rule 103 of the Rules of Court

Thus, since she is given one name, and her using her husband’s name isn’t even required of her under Art 370 of the Civil Code, it’s fine really.

• Both widow or divorcee need not seek judicial confirmation to revert back.

Remind me: What is Art 15 of the CC?

• Laws relating to: 

  • Family rights and duties

  • Status, condition, and legal capacity of persons

• Such are binding upon citizens of the Philippines

  • Even those living abroad

What about Art 26?

• Where a marriage between a Filipino citizen and foreigner is validly celebrated

  • Divorce is thereafter obtained validly abroad by the alien spouse

  • Capacitates the alien to remarry

• Filipino spouse shall have the capacity to remarry under the Philippine law

  • As amended by E.O. 227

Compare legal seperation and divorce

Legal Separation

• The Philippines only has ‘legal separation’ or ‘relative divorce’

• Mere separation from bed and board

  • Divorce a menso et thoro

• Does not result in dissolution of marital ties

  • Modifies the incidents of marriage by relieving duty to live with each other

  • Does not necessarily affect economic rights and duties

    • Court may order spouse who gave cause for separation to provide support for the innocent spouse and common children

Absolute Divorce

• Divorce a vincula matrimonii

• Judicial termination of the legal marriage

  • Marriage vows are permanently severed

• Spouses will have no rights or obligations unto each other

• Essential that the court has personal jurisdiction over the respondent spouse

  • Including community or conjugal properties it seeks to affect by decree

Van Dorn V Romillo (1985, before FC)

Facts: Van Dorn is a Filipino citizen, while Richard Upton is a US citizen. They were married in HK and they begot two children. They then got divorced in Nevada, and Upton remarried a Theodore Van Dorn.

Issue:

Upton filed a suit against Van Dorn alleging that petitioner’s business, the Galleon shop, is conjugal property. Thus, Upton should be allowed an account of that business and have the right to manage the conjugal property.

So, is the marriage even valid, such that Upton can ask for this?

Ruling:
Yes, because it is an absurdity to allow a Philippine national to be married to a man who is not bound to the same rights and obligations of a marriage

Quita V Dandan (1998)

Facts: Quita absconded from her Filipino husband, got a divorce and was naturalized as an American citizen in the same year. She then got divorced and remarried another time

Issue: Her Filipino husband got another spouse. The question of his succession has come up as his supposed second spouse (Dandan) is asking for letters of administration. Dandan and the husband’s children are clearly heirs, but what about Dandan?

Is Dandan actually his wife, given Quita’s divorce

Ruling:

This must be remanded to the trial court, because Quita became an American citizen in the same year she filed for the divorce. She may have the legal capacity to get a divorce as per Van Dorn V Romillo

Republic V Obrecidio

Facts:

Lady Villanueva was married to Orbecido III, they had two children. She has since absconded, got a divorce decree and married an American

Issue:

Obrecido now wants to remarry, and asserts he should be allowed to since she is now a naturalized American.

Ruling:

He can actually remarry if she became an American before the divorce decree, based on Article 26 of the FC —> Basically, Van Dorn

He was unable to prove such, since he provided no proof of Lady Villanueva’s naturalization or the divorce decree

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.

Corpuz V Sto Tomas

Facts: Corpuz, while Filipino, married a Filipino. He has since become a Canadian through naturalization, divorced her, and is now filing for recognition of his divorce through Article 26.

Issue: Should the Court allow notice of this petition filed by a Canadian under Article 26?

Ruling: No, because only a Filipino spouse can file under this law.

However, he is still entitled to file as insofar as Section 48, Rule 39 of the Rules of Court allows admission of foreign judgments that indicate a right a person has between parties

He may file for such through Rule 108, which allows annotations for entries in the civil registry with a set of strict restrictions with the venue of the proceedings (Same RTC as Civil Registrar)

Section 48. Effect of foreign judgments or final orders. — The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order, is conclusive upon the title to the thing, and

(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

Fujiki V Marinay

Facts: Marinay was initially married to Fujiki, a Japanese National. Fujiki was not able to bring her to Japan because his parents disapproved. As a result, they eventually seperated, and Marinay married another Japanese who bought her to Japan

This national was abusive, and so she got back with Marinay. Marinay was able to help her get a Japanese decree ruling the subsequent marriage is void.

Issues:

• Is he able to file for a divorce decree given 02-10-11 only allows the spouses to file?

• He is now trying to get the court to judicially notice the divorce decree

Ruling:

• Yes, since Llave V Republic clarified that this rule doesn’t count for bigamy cases, because it would be absurd to not allow the innocent spouse in a bigamy case to impugne the marriage

• He is able to, under Rule 108 of the Rules of Court, insofar as he’s an interested party to get the civil status corrected

People V Manolo

Facts: This involves Manolo, the Filipino, being the one to get a divorce decree against their Japanese spouse, in a Japanese court. This was granted

Issue: Does Art 26 accord them the right to remarry?

Ruling: Yes, because the point of the law was to disallow the absurdity of a Filipino subsisting in a marriage when the foreigner is not in said marriage, and has no rights or obligations on them as a result

Thus what is only necessary is

• A Filipino and a Foreigner married in a foreign jurisdiction

• Any divorce decree competently proven before the court, which necessitates evidence of the divorce and evidence of the law regarding divorce

Morisono v. Morisono

Facts: Filipino wife married a Japanese husband in QC. Morisono would argue with him due to his philandering ways and the fact that he was older than her.

Issue: She was the one who filed for the marriage, can this be recognized

Ruling: Yes it may, because as outlined by Republic V. Manolo, as long as it is a foreign divorce the rule applies

Galapon V Republic of the Philippines

Facts: Galapon was married to a SK National named Park, their marriage turned sour and so they got a divorce by agreement.

Galapon filed for this recognition in Sto Domingo, Nueva Ecija.

Issue:

• OSG Avers she should’ve done this recognition in the RTC of Manila,

• Can this be recognized, since it was done by mutual agreement with BOTH spouses

Ruling

• No, the OSG is wrong. In Fujiki v. Marinay it was held that the foreign divorce decree may be recognized via a special proceeding. This does not preclude doing it through Rule 63, which allows for a special civil action for declaratory relief

• Yes! Republic V Manolo outlined a Filipino spouse can do it, so can them together

Note: She was also able to competently produce all necessary documentation, including a copy of the Korean Civil Code, authenticated by the Korean embassy

Republic V Parreno

Facts: A Filipino wife divorced her Japanese husband by mutual agreement.

Issue:

• Is this valid?

Ruling:

Yes, we’ve ruled in favor of divorces by virtue of agreement before (Remember, Morisono V Morisono). Legislative intent still demands this be recognized since it does not matter wether it was by mutual agreement, but the fact that the husband is now capacitated to remarry

Basically, what actually puts into focus the issue on “Divorce by agreement” besides Morisono

In Re Janevic (Basically same set of facts as Galapon vis a vis the requirements of Rule 108 — J, G)

Facts: Same set of facts to Galapon — A Filipino married a Japanese. She filed for a Rule 108 correction for her marriage in Sto. Domingo, Nueva Ecija rather than the RTC of Manila where her marriage was actually celebrated

Purely admin, hence no realy mention of “Mutual agreement”

Issues and ruling

• Did she sufficiently prove her divorce decree?

  • Yes. Although the OSG states that she didn’t prove her re-capacity to marry under Japanese law, what was necessarily was merely to show her husband wss re-capacitated to marry under Japanese law

  • Previous jurisprudence regarding this law actually showed this, which meant she didn’t need to allege and prove this fact

• Should her filing in the wrong RTC make her petition dismissed?

  • No, but it is still necessary for her to file correctly given what Rule 108 requies of her — to file in the same RTC as where her marriage was celebrated, and thus where the record of her marriage is.
    
    

Republic V Kikuchi

Facts: — Kikuchi - chic — chic to do it before City Hall

• Kikuchi filed for a recognition of her foreign divorce. She filed for this divorce before the City Hall of Sakado City, Saitama Prefecture. 

• The following evidence were presented:

  • During the presentation of evidence, the following documents, among others, were presented: 

    • (1) the Acceptance Certificate issued by the Mayor of Sakado City, Saitama Prefecture, Japan; 

    • (2) an Authentication from the Vice Consul of Philippine Embassy in Tokyo, Japan; and 

    • (3) a photocopy of the English translation of the Civil Code of Japan, published by Eibun-Horei-Sha, Inc. and stamped with "LIBRARY, Japan Information and Culture Center, Embassy of Japan, 2627

    • Roxas Boulevard, Pasay City."

Issue:
- Was she able to establish the fact of the divorce?

Ruling:

No, becausethe Eibun-Horei-Sha translation isn’t official. She was however able to present evidence of the divorce itself.

WHEREFORE, the Petition is GRANTED. The November 15, 2018 Decision of the Court of Appeals in CA-G.R. CV No. 110750 is REVERSED and SET ASIDE. The case is REMANDED to the court of origin for further proceedings and reception of evidence on the Japanese law on divorce.

Republic V Ng.

Facts:

• Ng got a divorce against her Japanese husband through a “Divorce by mutual agreement”

• She presented the following documents

  • Divorce Certificate issued by the Embassy of Japan in the Philippines 

  • DFA - Authentication Certificate and a Certificate of Acceptance of Notification of Divorce

  • City Civil Registry Office of Manila - Certification guaranteeing that the Divorce Certificate was filed and recorded in its office and an original Family Registry of Japan with English translation showing the divorce was recorded in Japan.

  • Unauthenticated Photocopies of the Japanese Civil Code

issue:

• Whether Article 26(2) of the Family Code judicially recognizes in the Philippines the divorce decree obtained by mutual agreement between spouses?

• Whether the respondent sufficiently proved the divorce decree and the Japanese law on divorce?

Ruling:

1. YES, the Court held that the express requirement of the provision is that a divorce be validly obtained abroad.

2. NO, the respondent was able to prove the fact of divorce through evidence but was unable to present verifiable evidence of Japanese divorce law. This as a result of the photocopies being unatheticated

In divorces between aliens, what dictates wether the divorce is recognized?

Hague Convention Relating to Divorce and Separation of 1902 📜

• Granting of divorce or separation must comply with the:

  • National law of the spouses

  • Law of the place where the application was made

• Laws such as the ‘Codigo Bustamante’ and ‘Siamese Law’ have made the right to divorce/separate depend on;

  • National law of the spouses

  • Grounds for divorce

    • Subject to the law of the forum

    • Provided spouses are domiciled there

Will a court grant a divorce based on the foreign law of where the marriage happened?

No. The court is not competent to decide on the divorce, because that determines wether divorce may occur is the lex fori. A Philippine court is not competent to rule on a marriage governed by the laws of Kenya.

What allows the Philippines to recognize foreign divorces between aliens? Is it required to recognized these divorces.

• No provision of law requiring the Philippine courts to recognize a foreign divorce decree between non-Filipinos

  • They may still recognize though based on principle of international comity

    • As long as it does not violate a strongly held policy in the Philippines

Comity is “recognition which one nations allows within its territory to the legislative, executive or juridical acts of another nation, having due egard both to international duty and convenience, and to the right of its own citizens or of other persons who are under the protection of its laws”