Civil Law I

Everestgurl By Everestgurl, 10th Apr 2012 | Follow this author | RSS Feed | Short URL
Posted in Wikinut>Family>Community

Dean Ed Albano is the leading lecturer for Civil Laws in the Philippines. This manuscript is part of a series of lectures that I have transcribed when I was reviewing for the Bar Exams in 2011. This part contains an extensive and exhaustive discussion about introduction to the Civil Code of the Philippines which include the Family Code. This is the first part and it discusses Articles 1 to 15 of the Civil Code.

Persons and Family Relations

What is the effect of the repeal of a law? Law A was impliedly repealed by Law B. Law B was expressly repealed by Law C. Law A is restored.
We know for a fact that judicial decisions of the SC are not laws by themselves, only part of the judicial system. They are only considered as contemporaneous interpretations of the Constitution forming part of the law as of the time of the enactment or the adoption by the people. So that if the Constitution is going to be interpreted for the first time after 100 years, it will be considered a mere contemporaneous interpretation. One of the parameters in determining the independence of the judiciary is the salaries of its members which shall not be diminished, the non- diminution clause in the Constitution. The same with the 1935 and the 1987. In the 1935 Constitution there was a deliberation that in order to promote the independence of the judiciary, there must be non-diminution. Suppose the Congress will enact a law that will impose taxes in the salary of the members of the judiciary, is this considered diminution? It is a diminution. Taxation is a means of diminution. The same words are found in the 1987 Constitution but in the deliberation of the Constitutional Commission of 1987, the votes of those who contend that taxation is not diminution won. So that if the Constitution will be interpreted 100 years from now, they will have to go into the journal of the Constitutional Commission. What is the intention? It will only be considered a contemporaneous interpretation dating back when the Constitution was adopted.
Arts. 9, 10, 11 and 12: customs and tradition will apply if there is no positive law that will be dealt with in order to decide a particular case. What is an example of a case where customs and traditions were used in order to resolve a particular legal issue? Remember the question: what is the middle name of an adopted child? There is no law on middles names. But why is it that Filipinos carry a middle name? It is only because of the customs and traditions that we carry the surname of our biological mother as middle name. The SC said that since there is no law on middle names, then the adopted shall carry as middle name the surname of the biological mother. Why? In order not to cut the umbilical cord altogether because the adopted child remains to be an intestate heir of the mother; so that it will not be very inconvenient for him to prove his relationship with the biological mother when the issue on succession will arise. It is a custom that has been in practice since time immemorial, a custom that is not prohibited and a custom that is allowed. What is not prohibited is allowed.
The important part of Art. 13 is the last part, that in computing a period the first shall be excluded and the last included.
Art. 14 is also applicable in Criminal Law and in International Law. Exceptions are those subject to accepted principles of international law and to treaty stipulations. So anyone who comes to the Philippines is bound by our penal laws and those of public safety. So if a foreigner violates our law, he shall be punished. Suppose Pres. Obama travels to the Philippines in cognito and will be caught in flagrante committing the crime of rape, knowing that there is an accepted principle in international law that the head of state will be granted immunity even if traveling in cognito, he cannot be arrested because he is not covered by our penal laws. The family members of an ambassador cannot also be subjects of an arrest; the only thing we can do to that ambassador is to send him back to where he came from for being persona non grata. The principle of pacta sunt servanda applies in case of accepted principles of international law.
Article 15
The first principle in Civil Law is Art. 15. Laws relating to family rights and duties or the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.
If 2 Filipinos are married, their rights, status, duties, condition and legal capacity shall be governed by Philippine laws wherever they may be. If ever one of them shall go to Nevada and file a petition for divorce against the other Filipino and the Nevada court would grant the petition for divorce, can any one of them get married again if the divorce obtained is valid in accordance with US laws? There is no divorce recognized in the Philippines between Filipinos. There is no valid divorce between Filipinos even if the decree is validly obtained abroad. The same would be contrary to morals and public policy. They cannot therefore get married to other partners. Laws relating to legal capacity will follow Filipinos wherever they are. The status of married people is determined by Philippine laws.
What about a mixed marriage between a foreigner and a Filipino? For example, A and B got married and went to the US. B then became a US citizen and divorced A. can A get married again? Yes, under certain conditions. Under Art. 26(2) of the FC, when 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. What is the intention of the framers of the FC and that phrase “mixed marriage”? If you try to look into the intention of the framers form the journal of the proceedings, the intention is that the word “mixed” must be from the very beginning or the inception of the marriage. This is evidenced by the decision of the SC in Republic vs. Iyoy, a case which happened in Cebu, a man and a woman both Filipinos were married and went to the US where the woman became a US citizen, divorced the husband then got married; the CA of appeals said the man can remarry because it would be unfair not to let him considering that he is no longer married to the first spouse; the OSG took over and went to the SC contending that the marriage was not mixed from the very beginning and hence, the man cannot remarry; the SC upheld the contention of the OSG. However, in a span of 14 days, the SC abandoned the ruling in this case. In an exactly the same situation but coming from Zamboanga; the same facts; there was a petition for declaratory relief asking the court to allow him to remarry; the RTC citing Iyoy as ruled in the CA, said he can remarry; direct question to the SC by the OSG again; the SC has a 360 degrees turnaround from its earlier ruling and said that he can remarry using the decision of the CA in Iyoy; it would be unfair and unjust to the man if he will not be allowed to remarry; it not necessary for the marriage to be mixed from the beginning, it is important the it be mixed by the time the divorce decree was obtained; we should not interpret the law according to the letter that killeth but according to the spirit that gives it life. It is suggested that this rule must be put into the law itself to keep the SC from abandoning this ruling. The Filipino cannot get married immediately because he has yet to go to court and file a petition for recognition of that foreign decree of divorce. While it is true that that decree of divorce is valid where obtained by the foreigner, the Filipino needs to file a petition for recognition of that foreign judgment. Why? Because a foreign law must be proved as a fact according to the rules of evidence.
For example there is a marriage of 2 Filipinos who are both minors in the US; under its laws marriage between 16 year olds is valid; the marriage is not valid for lack of legal capacity even if valid where celebrated (Art. 35 (1) of the FC).
Suppose A&B have a void marriage; X&Y also have a void marriage; A&X got married somewhere where it is recognized as valid; is their marriage valid in the Philippines? First, they don’t have legal capacity because of the existence of their void marriages; a void marriage is a legal impediment for purposes of remarriage; Art. 40 of the FC provides that 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. It is not for you to determine the validity of your marriage but for a court of competent jurisdiction. In Mercado vs. Tan, a fellow from Bacolod got married to a lady in Bacolod without license (so void); he went to Cebu and got married again with another woman without license (also void); when the lady from Bacolod learned of the second marriage, she filed a complaint for bigamy; during the pendency of that complaint for bigamy, the man went to court and sought to nullify the marriage with the Bacolod lady asking the suspension of the bigamy complaint on the ground of prejudicial question; the theory being, if he can prove the nullity of the marriage, he cannot be prosecuted and convicted of bigamy. Is this a prejudicial question? SC said it is not a prejudicial question. One of the requirements of a prejudicial question is a civil action filed prior to the criminal action the issues of which are interrelated with one another that the resolution of the civil case will determine whether the criminal case will proceed or not. If you can determine it for yourself the validity of your marriage, then it will be easy for you to escape scot-free from your liability, every week you can get void marriage if that were the case.
There was even a member of the Bar who has been disbarred for getting married twice (Tere vs. Tere). The first marriage was void and when the remarriage took place, the FC is still non-existent; the Civil Code then has no requirement to go to court and have the first marriage declared void; the couple even married abroad where the marriage was valid; the SC said that the FC was retroactive and they shall be bound by Art. 40 of the same.
Art. 15 is the umbrella of the marriage law.


Dean Ed Albano Lectures, Laws About The Community, Persons And Family Relations

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A writer by passion and a lawyer by profession. Loves to write about anything especially politics, current events, science, religion, love, life, career and the laws.

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