The 2009 Philippine Blog Awards

Saturday, April 29, 2017

NULLITY OF MARRIAGE: Lack of Marriage License Due To False Affidavit of Cohabitation

Interfering In-Laws Caused the Marriage Breakdown
@Alain Atienza Tag

This petition involves a Declaration of Nullity of Marriage between Petitioner (J) and Respondent (L) on the ground that the marriage was solemnized without a marriage license, anchored on the falsity of the period of five (5) consecutive years of cohabitation stated in the Affidavit of cohabitation.


FACTUAL SCENARIO:


J, is a cameraman for TV shows that air over PTV 4, while L was working as the head writer for the same TV shows. During their initial meeting, J found L to be friendly, kind and intelligent, being a graduate of Mass Communications from the Ateneo de Manila University. As and always worked together on the same production, their mutual attraction for each other grew. With constant teasing from M, their Production Manager, and co-workers, J and L became sweethearts sometime in the latter part of 2001.

Sometime in April 2003, while J , L and M were having lunch, M told the couple that they should consider about marrying since they were both of age.  J was then almost twenty six (26) years old, while L was already twenty three (23) years old then. M said that if the J and L agree to marry each other, she would take care of all the expenses and arrangement for the wedding and all they have to do were to show up on the appointed wedding day. J and L jokingly said “why not?”.

Unknown to J and L, M has taken the joke as an express agreement for J and to get married. Less than three (3) years after J and L met, M arranged their "secret wedding". “Everything was all set” for their wedding which was scheduled in the morning of June 27, 2003 in a restaurant at F.B. Harrison in Pasay City.

After the wedding, J and L returned back to the office to do their usual work. After a few days, moved in to the rented apartment of the J in Mandaluyong City, without the knowledge of L’s mother and siblings.

Sometime in November 2003, when L's mother and her family learned of the clandestine wedding and their marital relationship, they all got mad against J. Yet J and L still cohabited together and bravely face their trials away from L’s family. During their cohabitation, J and L are blessed with two children.

In 2009, when L’s mother suffered a “stroke”, the couple was  forced to move in to L’s house. While they were living together with L’s mother, J often felt belittled and often treated with “cold” shoulders by L's mother and siblings. Consequently, J had  misunderstandings with his wife.  Worst, L's mother would even intervene in their marital problems and would always side with her daughter. Thus, after eight (8) months of misery, J decided to move out and rent out a new place for his family. However, L chose to stay with her mother.

In 2010, J and parted ways and live their separate lives. After more than four (4) years of being separated, J became resigned to the fact that reconciliation with his wife was already impossible, prompting  the Petitioner to file a petition for the nullity of their marriage.

COUNSEL'S EVALUATION:

The marriage between the Petitioner and Respondent was done without securing the required marriage license.  In lieu of a marriage license, Petitioner and Respondent executed a sworn AFFIDAVIT OF A MAN AND A WOMAN WHO HAVE LIVED TOGETHER AS HUSBAND AND WIFE FOR AT LEAST FIVE (5) YEARS, attesting that both of them had attained the age of maturity, and that being unmarried, they had lived together as husband and wife for at least five (5) years. Although Petitioner signed the sworn Affidavit stating that he and Respondent had lived as husband and wife for at least five years, there was no truth in that statement, as Petitioner and Respondent had not cohabited as husband and wife for five (5) consecutive years before their marriage on June 27, 2003.

The falsity of the period of five (5) consecutive years of cohabitation stated in the Affidavit of cohabitation effectively renders the marriage void ab initio for lack of a marriage license.  Article 35 (3) of the Family Code of the Philippines provides that a marriage solemnized without a marriage license, save marriages of exceptional character, shall be void from the beginning.  Inasmuch as the marriage between the Petitioner and Respondent is not covered by the exception to the requirement of a marriage license, it is, therefore, void ab initio because of the absence of a marriage license.


COURT FINDINGS AND CONCLUSION:
(quoted verbatim from the 18-page decision rendered by the Honorable Court on December 12, 2016)

"The main issue to be resolved in this case:

      Whether or not the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license under Article 35 (3) of the Family Code.

      Xxx. Under the circumstances of the case, the documentary and testimonial evidence presented by the Petitioner sufficiently established the lack of marriage license as required under Article 35 (3) of the Family Code.

      As ruled by the Supreme Court in the case of SYED AZHAR ABBAS vs. GLORIA GOO ABBAS, G.R. No. 183896, January 30, 2013, to wit:

XXX
The Supreme Court resolves a case solemnized under the Family Code of the Philippines, hinges on whether or not a valid marriage license had been issued for the couple. In upholding the decision of RTC 109, Pasay (and rejecting the position of the Court of Appeals), the SC ruled that Article 4 of the Family Code is clear when it says, “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2).” Article 35(3) of the Family Code also provides that a marriage solemnized without a license is void from the beginning, except those exempt from the license requirement under Articles 27 to 34, Chapter 2, Title I of the same Code.
Again, this marriage cannot be characterized as among the exemptions, and thus, having been solemnized without a marriage license, is void ab initio. As to the motive of Syed in seeking to annul his marriage to Gloria, it may well be that his motives are less than pure, that he seeks to evade a bigamy suit. Be that as it may, the same does not make up for the failure of the respondent to prove that they had a valid marriage license, given the weight of evidence presented by petitioner. The lack of a valid marriage license cannot be attributed to him, as it was Gloria who took steps to procure the same. The law must be applied. As the marriage license, a formal requisite, is clearly absent, the marriage of Gloria and Syed is void ab initio.”
The Supreme Court also held in REPUBLIC OF THE PHILIPPINES vs. JOSE DAYOT G.R. No. 175581  March 28, 2008, to wit:
XXX
The Supreme Court in this case resolves the central issue of whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license in the affirmative and states that:

“It is not contested herein that the marriage of Jose and Felisa was performed without a marriage license.  In lieu thereof, they executed an affidavit declaring that “they have attained the age of maturity; that being unmarried, they have lived together as husband and wife for at least five years; and that because of this union, they desire to marry each other.” 

Marriages of exceptional character are, doubtless, the exceptions to the rule on the indispensability of the formal requisite of a marriage license.  Under the rules of statutory construction, exceptions, as a general rule, should be strictly, but reasonably construed.  They extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Where a general rule is established by statute with exceptions, the court will not curtail the former or add to the latter by implication.  For the exception in Article 76 to apply, it is a sine qua non thereto that the man and the woman must have attained the age of majority, and that, being unmarried, they have lived together as husband and wife for at least five years. 

A strict but reasonable construction of Article 76 leaves us with no other expediency but to read the law as it is plainly written.  The exception of a marriage license under Article 76 applies only to those who have lived together as husband and wife for at least five years and desire to marry each other.  The Civil Code, in no ambiguous terms, places a minimum period requirement of five years of cohabitation.  No other reading of the law can be had, since the language of Article 76 is precise.  The minimum requisite of five years of cohabitation is an indispensability carved in the language of the law.  For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with.  It is embodied in the law not as a directory requirement, but as one that partakes of a mandatory character.  It is worthy to mention that Article 76 also prescribes that the contracting parties shall state the requisite facts in an affidavit before any person authorized by law to administer oaths; and that the official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. 

It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed their sworn affidavit and contracted marriage. 

Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa to exempt them from the requirement of a marriage license, is beyond question.
 
The affidavit merely sets forth such fact, which if found false would only be a mere scrap of paper, without force and effect.”
The Supreme Court also pronounced in NiƱal v. Bayadog (384 Phil. 661, 667-668 (2000), where the contracting parties to a marriage solemnized without a marriage license on the basis of their affidavit that they had attained the age of majority, that being unmarried, they had lived together for at least five (5) years and that they desired to marry each other, the Supreme Court ruled as follows:
“x x x In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage.  This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity – meaning no third party was involved at any time within the 5 years and continuity – that is unbroken.  Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse.  Marriage being a special relationship must be respected as such and its requirements must be strictly observed.  The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law.  The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage.  There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception.  It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.
 It should be pointed out that under this exception, what exempts the future spouses from the requirement of securing a marriage license is not the execution of the affidavit of cohabitation, but rather, the fact of cohabitation for at least five (5) years without legal impediment to marry each other. Its purpose is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license, which could discourage such persons from legitimizing their status. 

WHEREFORE, the herein petition is hereby GRANTED.




Friday, October 28, 2016

Being A Location Independent Counsel: An Informational Interview and My Own Realization Of What I Am Currently Doing!


Map of the United States in Car Plates at Footworke in Cottonwood, Arizona

Come December 14, 2016, we would be celebrating our year mark exploring the United States (California, Washington, Utah, Nevada, Florida, Colorado, and Arizona) and South America (Brazil and Peru) together as a couple with short stint for me in the Philippines. It was our longest trip ever since our wedding day. Although we have been to Vietnam, Cambodia and Taiwan in 2014, and Singapore, Malaysia and Thailand in 2015, both years' travel took only a month during the first year and a couple of months on the second year. To a lot of people they consider me very lucky that I could take "vacation" that long, which clearly shows the lack of understanding about being a location independent counsel, which is actually "work" while traveling anywhere in the world! This post is possibly the closest I could get in explaining the concept, thanks to the pretty and brainy, Louell Jeanne Carman Lorzano, who is graduating as Summa Cum Laude at Brigham Young University - Hawaii with a degree in Political Science minor in Public Management (clap* clap*) for this informational interview.  She told me that this is their last paper to turn in before graduation and she has chosen me to be the professional interviewee since she is interested in what I do as her mentor. Hmm, MENTOR is such a big word! So anyway, I thought I would share to you my answers both to the questions she asked, and those questions other asked of me! 
BYU-Hawaii Graduating Class Photo courtesy of  Louell Jeanne



What is your Career/Job Title? 


I call myself a Location Independent Counsel, for want of better term! I am a licensed lawyer in the Philippines since May 1999 and the founding attorney of Mary Ann L. Ojeda Law Office, a traditional law firm housed in one room of our residence and registered in Valenzuela City (Philippines), headquartered in Makati City (Philippines) in a studio-type condo manned by a paralegal and one assisting counsel, and is being operated as a virtual law firm throughout the Philippines, in the United States of America (USA) and anywhere in the world where I and my husband cum paralegal are traveling.

What is it that you do on your job?  Help me understand a little more about what you actually do.  


At present, I am a retained local counsel for the Office of General Counsel (OGC) of the Church of Jesus Christ of Latter – Day Saints for the Philippines area, handling all major real estate transactions, family law issues, visa issues and immigration matters. I am also a corporate secretary and Director for three corporations – one engaged in employee placements in Japan, jerseys and sports apparel manufacturing in Orem, Utah and a real estate holding company with Swedish investors in El Nido, Philippines. I am also a corporate secretary and Trustee of three 501c3 companies in the US where Philippines is the beneficiary of their services so I have incorporated a foundation for each of them in the Philippines, and a litigation attorney in the Philippines with areas of practice in family law, civil law and commercial law.


What is a typical day like?


It honestly depends on where I am living at the time. Since I am currently here in Orange County, California (USA) with my husband, I wake up at 8 in the morning (11 in the evening in the Philippines) and check my emails to have an idea of what’s the day work would be. Then we hit the road to see some sights, explore new places, meet some friends and do something interesting, while my clients in the Philippines are still asleep! From 3 in the afternoon until 12 midnight (6am – 3pm in the Philippines) is my regular work schedule where I am either drafting a court pleading and corporate documents, coaching my paralegal, teleconferencing with my clients, emailing legal advice, or working with my assisting counsel on cases and other matters. I make sure I get eight (8) hours of sleep no matter what and attend Church on Sundays! Friday night is our movie dates (yes, Red is a sucker for movies!) and Saturday is my official shopping day whether Red likes it or not!



The Bible Quote at the Christ Cathedral in Garden Grove, CA

What attracted you to this type of work?

I got interested to being a lawyer in general way back in college when I did an immersion program and stayed with a farmer’s family in Batangas. The family’s challenge then was legal in nature and an Education major like me could not be of much help. So, I told myself, I am going to be a lawyer and help the farmers in Batangas, which I was able to do after my graduation.

As to being a Location Independent counsel, it is the flexibility of doing the two things I love - lawyering and traveling!. Maintaining a virtual law firm, as an emerging business model, helps me simultaneously do just that. With the technology, I am able to deliver legal services to clients (who pays the bill) while exploring new places and checking off bucket lists with hubby!   

What training/education is needed to do what you do?  


You need to take up a law degree, either a Bachelors or a J.D program after obtaining your college degree. Once you pass the bar examinations, choosing your practice areas is a self - imposed limitation!  



What kind of formal education and college majors are most useful for preparation in this type of work?


Any pre-law course is definitely useful in getting a law degree and ultimately becoming a lawyer. Personally though, I chose to finish a Bachelor’s of Science in Education, major in English because it gives me a "degree" already while in law school (I am a licensed Elementary and High School teacher), and my competence in English help me succeed in law school since the discourses and bar examinations are all in English.

What is your most significant accomplishment this past year?


Being able to close major real estate purchases while “honeymoon-ing” in Brazil, Peru, Bolivia in South America and the states of California, Colorado, Washington, Utah, Arizona, Nevada, Oregon and Florida in the United States. I was able to see as much of the Philippines too and other Asian countries while earning a good income and keeping our overhead expenses to a minimum. There were important litigation that were successfully concluded while I was gone physically from the Philippines by working with my team (i.e. assisting counsel and paralegal) who do the physical representation while I do all the pleadings while exploring the world!. 

How does this profession fit with family life?


It fits perfectly with family life since Red and I have been able to travel together since our marriage and able to combine work and pleasure that strengthen our relationships! Once there is a baby in tow, we can choose to stay put in one location, where I stay home with the kids while managing the law office while Red can apply for a regular day job if he wants to!


In Copacabana Beach imitating the Rio De Janeiro Olympics poster 

What keeps you interested in the work?


The thought that my husband and I can pretty much settle anywhere in the world with internet.  In this digital age we live in, it is becoming increasingly easy and profitable to have this small- sized law firm extends to multi-lawyer, multi-jurisdiction law firm offering full-service representation and online delivery of legal services.

What does it take to become successful here?


To become a successful location independent counsel, you need to establish yourself first as an expert in your chosen field and be that “go-to-person”. That requires not only prior skills and experience but also being dependable and disciplined. When you commit to a deadline be sure to deliver on the appointed time and communicate with clients promptly and clearly. Since everything is online, much of the success depends on how well I use the internet/social media and cloud-based technology to operate the firm and deliver legal services.

What are the professional networks or organizations associated with this career?


As an LDS lawyer, the most important network for me is the J.Reuben Clark Law Society with more than 75 chapters all over the world. I am the founding officer of the JRCLS Philippines Chapter and have met a lot of lawyers with the same values and have helped a lot of people through maintaining a network with the lawyers I met during annual conferences around the US, Asia Pacific Conference in Australia and New Zealand and Leadership Conference in Utah. Locally, I am a member of the Integrated Bar of the Philippines (IBP) and with networks among my classmates, professors and students who are now lawyers.

What advice do you have for a person who is interested in doing this kind of work?



You are on the right track already by doing so well in your undergraduate studies. Just keep at it and dream, dream BIG if you must – and have the guts to live your dream by being disciplined and firmly grounded. 

Friday, July 3, 2015

NULLITY OF MARRIAGE: Lady B's Bigamous Subsequent Marriage


FACTUAL SCENARIO:

Lady B 
came to know of Guy A through a common friend. For several months of regular dating, the two became lovers. B married A in a civil wedding held on April 3, 1998. The union of and A begot them two children namely – V and S.

Unknown to B, A was at the time of their marriage is still very much united in a lawful wedlock with one whom A married in 1997. A knew that during his marriage to B that J is still alive. In one occasion, B saw A talking to J just outside their house in San Juan. When B confronted A about the incident, A intimated that he contracted a “secret marriage” with J but said marriage was not registered and thus not valid.

Regrettably, B later discovered the whole truth when A left her and her daughters.  The twin marriages of A with both B and were duly evidenced and supported by Certificates of Marriage, which is a matter of public record.

COUNSEL'S EVALUATION:


A’s deliberate disregard of the permanent and sacrosanct character of marriage gives rise to a criminal prosecution for Bigamy. Likewise, the subsequent marriage to B without annulling his prior marriage with J has resulted in a bigamous arrangement, which makes the subsequent marriage void from the beginning pursuant to the provisions of Article 2 (Par. 1) in relation to Article 35, Paragraph 4 and Article 41 of the Family Code.


  “Article 2. No marriage shall be valid ,unless these essential requisites are present:
(1)Legal capacity of the contracting parties who must be male and female. Xxx
"Article 35.   The following marriages shall be void from the beginning: xxx (4) Those bigamous or polygamous marriages not falling under Article 41 (declared presumptively dead)."

But regrettably for B, terminating her marriage to A given the circumstances is still very unpopular in the Philippines due to very strong religious influence to the laws and the courts. Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. 

Simply put, B’s only recourse to terminate her bigamous marriage to A is through a petition asking the court to declare the marriage void. B’s petition for declaration of absolute nullity of void marriage is subjected to a full blown trial where the presiding judge personally conducts the trial of the case. The judge cannot delegate reception of evidence to a commissioner and no judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. B must prove the grounds for Nullity through presentation of at least three witnesses including her as the petitioning spouse.

COURT FINDINGS AND CONCLUSION: 
(quoted verbatim from the decision rendered by the Honorable Court on January 7, 2013)

"Respondent (A)'s name is A.R.A. In his Certificate of Marriage with B, which was celebrated on April 3, 1998, his birth date is listed as April 12, 1973. Also in the same Certificate of Marriage, his parents are J.A and J.R and his birthplace is Manila. In his Certificate of Marriage with J, which was officiated on April 14, 1997, the same details appear. Respondent's birth certificate shows identical personal circumstances. The NSO certification (re-marked Exhibit "N") points to respondent A's marriages to J and petitioner B.

This Court is convinced by preponderance of evidence that respondent who was married to petitioner (B) is one and the same person who had wedded J. Preponderance of evidence means "the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other". This preponderance is based on the more convincing evidence and its probable  truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen of witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculations about what the parties intended. Preponderance of evidence is required in a civil case and is contrasted by "proof beyond reasonable doubt", which is the more severe test required to convict in a criminal trial. No matter what the definition stated in various opinions, the meaning is somewhat subjected".(with footnote - legal-dictionary.thefreedictionary.com)


Clearly, respondent (A)'s marriage to petitioner (B) is bigamous. There is no evidence on record that respondent's first marriage to had been nullified or dissolved before his marriage was officiated . The State and respondent offered no evidence on this score. The Certificate of Marriage between respondent (A) and J and the NSO certification (re-marked Exhibit "N") are prima facie evidence of their contents - that is, a marriage still subsists between respondent and J. In the absence of contrary evidence, this Court gives force and effect to these documents as to what they each narrate.


The minor children V and S, shall be under the care and custody of petitioner. Respondent has been duly summoned in this case but he failed to appear. Further, as the evidence shows, he abandoned them when he left for places unknown until he was located when the summons was served on him. He failed to give support to petitioner and their minor children. He has been an absentee father and husband since he left the abode with petitioner B and their children.


WHEREFORE, the petition for nullity of marriage is granted. Judgment is rendered nullifying the marriage between B and A under Article 35 and 41 of the Family Code. Further, the care and custody of daughters V and S are awarded to petitioner B without prejudice to respondent A's visitation right."