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Wednesday, December 31, 2014

MARRIAGE MATTER: Recording and Validity.


B, widow, was married by a Solemnizing Officer to S, a woman who was previously married to U but had been separated for many years.  S and U were married prior to 1988 and they have been separated for much longer than seven (7) years.  The wedding was performed in June 2012 but apparently the Solemnizing Officer was told it could not be recorded and was not legal because S, had been married before with no annulment. 

Issues: (1) Should the marriage be recorded? 
           (2) What are the Requirements for Late Registration of Marriage?
           (3) Is the Marriage between B & S valid, considering that S was still married to U who abandoned her for more than seven (7) years?

Legal Advice:

(1) The marriage performed should be recorded. It shall be the duty of the solemnizing officer to report the marriage to the office of the Civil Registrar where the marriage was solemnized and the period of filing for registration depends on whether the Parties to the marriage has a marriage license or not. If with marriage license or ordinary marriage, the filing must be within fifteen, (15) days following the solemnization of marriage while in marriage exempt from license requirement, the prescribed period is thirty (30) days.

(2) Requirements for Late Registration of Marriage. In case the filing period had already lapsed and assuming that the original or duplicate copy of the Certificate of Marriage still exists, please comply with the following requirements:

1.  The solemnizing officer shall be required to execute and file an affidavit in support thereof, stating the exact place and date of marriage, the facts and circumstances surrounding the marriage and the reason or cause of delay.

2.  The submission of the application for marriage license bearing the date when the marriage license was issued, except for marriage exempt from marriage licenses shall be required.

The Facts did not indicate if the parties to the marriage have a license or not. But I presumed from that the Solemnizing Officer has performed the marriage without a marriage license under Article 34 of the Family Code - In case of a man and woman who have lived together as husband and wife for at least five (5) years and without any legal impediment to marry each otherI believe that the person who told the Solemnizing Officer not to record the marriage for not being “legal” has knowledge of a legal impediment to the marriage [i.e. the existence of the first marriage of S & U, which has not been judicially declared null, annulled or U had not been declared presumptively dead as required under the Family Code of the Philippines, the governing law for marriages since August 3, 1988 until the present].  
(3) Despite the alleged legal impediments, the marriage already performed should be recorded and should be deemed “valid” until it is annulled. The act of recording a marriage under the Civil Registration Law of the Philippines is ministerial and there is no discretion involved. In fact even if the legal impediment is made known or brought to the attention of the local civil registrar [during the application for marriage license under Art. 18  of the Family Code, the local civil registrar shall nonetheless issue the said license, unless ordered otherwise by a competent court] . Further, a recorded marriage is deemed “valid” and enjoys a presumption of “validity” and “regularity” of official functions. Thus, the alleged “void marriage” can only be declared terminated upon a petition to declare such marriage void filed by either the husband or the wife.   

The second marriage is deemed “valid” since U appeared to have become an Absentee Spouse that allowed “S” to remarry. Since the marriage between S & U was entered into prior to August 3, 1988, its validity is governed by the provisions of the Civil Code of the Philippines [and not by the Family Code of the Philippines] as regards the declaration of absentee spouse, to wit:

 “Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, of if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.”

 Article 390 of the Civil Code states:
“Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.” 

Please note that under Art. 83 of the Civil Codeit is not necessary to have the former spouse judicially declared an absentee for the purpose of remarriage. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven (7) consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.

Under the Civil Code, the presumption of death is established by law and no court declaration is needed for the presumption to arise as death is presumed to have taken place by the seventh year of absence.

This is a gray area of the law, however, and either of the spouses later on (if they so desire) can still file a petition to declare their marriage void for being a “bigamous” marriage.

Friday, August 1, 2014

CORPORATE CHATS: Applicability of Foreign Corrupt Practices Act (FCPA) on Philippine Entities

Client inquired about the Foreign Corrupt Practices Act (FCPA) and how the provisions of the law could apply to a Philippine company like their company.

FCPA prohibits U.S persons and, in some cases, foreign persons from corruptly offering, authorizing, or making payments, or giving anything of value, to any foreign official or political parties for the purpose of obtaining or retaining business.

FCPA has two main provisions - the anti-bribery provisions which are enforced by the US Department of Justice and Accounting and Internal Controls Provisions enforced by the U.S. Securities and Exchange Commission.

For the Anti-Bribery Offense, the covered persons are: (i) U.S. persons and companies, (ii) "Issuer" (i.e. any company with shares listed on U.S. Stock exchanges and (iii) any person - foreign companies, their officers, directors, employees, foreign national not resident in US that take an "act in furtherance" while in the U.S.

A domestic corporation with a foreign mother affiliated corporation is covered under the third group being a foreign company affiliate of US company and has expatriates or persons doing an act in furtherance of the U.S. company. With this in mind, we put the FCPA provisions on those contracts that will have involvement of U.S. persons or company in terms of actually releasing the money for the project.

For the FCPA Accounting provisions, the company is required to keep detailed books, records, and accounts that fairly and accurately reflect transactions and dispositions of assets and must maintain internal accounting controls to ensure financial records are accurate for external reporting,that access to assets is controlled, and that books are reasonably audited.

Some specific problem areas that may implicate the company with the FCPA and thus contracts that would be executed must contain the FCPA provision. It includes ANY contract calling for:

- use of a third party (consultant, agent, broker, contractor, service provider, vendors ) who will coordinate with government officials or government entity in providing the service

RED FLAGs: Use of an intermediary who has a questionable reputation, is known to have connections with the government officials, holds government (even honorary) position or is related to someone who does, was recommended by government, charges fees in excess of fair market value for services provided, request payment in cash, in a third country or other unusual arrangements, or refuses to make representations required by the company.

- charitable contributions

RED FLAGS: Charities, projects or contractors recommended by government officials, donations under direction or suggestion of a government official, or charities headed or managed by government officials

- Hospitality (provision of meals, expensive entertainment and entertainment disquised as training/ seminars,overseas trips of government officials with lavish accommodations,sightseeing and per diems)

RED FLAGS: meals, lodging, transportation and entertainment, which are excessive or "lavish" under local standards, repeated instances of meals and entertainment of lesser value, requests to cover expenses for family members, or hospitality with no legitimate connection to promotion or demonstration of products or services, or the execution or performance of a contract.

Tuesday, January 28, 2014

MARRIAGE MATTER: Sri Lankans Marrying In The Philippines

Inquiry: Two LDS Sri Lankan nationals are planning to have their Temple Marriage at the Manila Philippines Temple and they would like to inquire the arrangement and the requirements they needed to complete prior to the said marriage.

Reply: All parties to a marriage in the Philippines whether Filipinos or foreigners are required to secure a Marriage License unless exempt under Articles 27, 28, 33 & 34 of the Family Code of the Philippines (i.e. in the point of death, in five - year cohabitation without legal impediments, no means of transportation, muslim marriages, etc.) But in addition to the usual requirements for marriage license, the Philippine Government requires foreigners to obtain from his/her Embassy or Consulate in the Philippines, a “Certificate of Legal Capacity to Contract Marriage” before applying for a marriage license. This certification affirms that there are no legal impediments to the intended marriage of the parties pursuant to the first paragraph of Article 21 of the Family Code of the Philippines, which states:
“When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.”

Since both parties to the marriage are Sri Lankan nationals, they should contact the Sri Lankan Embassy or Consulate in the Philippines [] for the requirements in securing this Legal Capacity to Marry. Once the parties are already issued a Legal Capacity to Marry, they can go to the Local Civil Registrar of the place where they are found in the Philippines. Usually LDS foreigners apply for Marriage License at the Quezon City Local Civil Registrar, since the Manila Philippines Temple is in Quezon City. At the Office of the Quezon City Civil Registrar, the parties will need to present their respective Certificates of Legal Capacity, Birth certificates with an English copy, passports with appropriate 9A Temporay Visitors Entry visas [from the consulate abroad since Sri Lankans are “restricted nationals”], arrival stamps, documentation regarding parental consent (if between 18-21 years old) or parental advice (if 21-25 years old) and divorce decree [if previously married or a death certificate if a widow or widower]. Please note that there is a 10 - day waiting period before the Marriage License can be issued so the parties have to consider that in planning their length of stay in the Philippines. This waiting period is prescribed by law to inform the public about the pending license application and to give the local civil registrar an opportunity to entertain any objections to the upcoming marriage. The marriage license, once issued, is valid in any part of the Philippines for 120 days. If it has not been used during this 120-day period it will then automatically expire.

Sunday, January 26, 2014

TAX TALKS: Importation of Disaster Relief Goods -Duties & VAT Exemptions

My client is a consignee of 500 family tents and 5 sets of water purification equipment from the United States for Typhoon Yolanda disaster relief. Since my client is an accredited Resource Agency of the Department of Social Welfare and Development (DSWD) and what are being shipped are relief goods, the importations can enjoy both import duties and import VAT exemptions (and even warehouse storage fees waiver). All exemptions are processed at the One - Stop - Shop created by the Bureau of Customs pursuant to Customs Memorandum Order (CMO) dated November 11, 2013.

Pursuant to the CMO, the documentary requirements for the release of donated relief goods have been streamlined and simplified. To facilitate their immediate release, only a letter of intent to donate goods (or Deed of Donation), original copy of the bill of Lading or airway bill, and a packing list and/or a commercial invoice (among other documents as may be required), are needed provided that all donations shall only be to the account of the DSWD and/or any DSWD registered relief organization like my client.

Provided further that "used clothing" cannot be subject of any donations whether exempt or not from duties and taxes.

In addition to the above, there is also a need to submit (i) Notarized Deed of Acceptance by consignee; (ii)Board Resolution in favor of authorized representative (me) for file only;(iii)Notarized Secretary's Certificate with attached photocopy of signatory's I.D. and (iv)Distribution Plan for the donations.

At the One-Stop Shop, there is a need to sign the following Pro-Forma Documents: (i) Deed of Donation by consignee in favor of DSWD; (ii)Affidavit of Undertaking (that consignee will be the one to distribute and submit Post Distribution Plan within one month); (iii) File Informal Entry; and (iv)Obtain Gate Pass.

The process is fast since the signatories from the DSWD, Department of Finance (DoF) Revenue Group and the Bureau of Customs (BOC) are just table away from each other.