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PHL ADDRESSES LEGAL SEPARATION ISSUES WITH POWER OF LAW

- By Joel San Juan @jrsanjuan1­573, Claudeth Mocon-ciriaco, Samuel Medenilla @sam_medenilla, & Jovee Marie dela Cruz @joveemarie

‘FOR richer, for poorer.” These words are often heard from couples tying the knot, vowing to stay together in marriage; no matter what the odds are.

But for couples seeking to dissolve their marriage, becoming poor as a result may not be an option and, thus, a legal tug of war over conjugal properties would usually ensue.

The protracted legal process and the cost of having a marriage nullified, however, are not enough to discourage lovers from dreaming of a memorable wedding and a lasting marriage.

The numbers, nonetheles­s, show the dreaming stayed a dream.

Data obtained from the Philippine Statistic Authority (PSA) showed a decline in the number of registered marriages in the country in 2019, dropping by 3.8 percent to 432,000 from 449,200 in 2018. Of the registered marriages in 2019, about 36.2 percent were officiated by the Roman Catholic institutio­n.

The others were through civil ceremonies (38.6 percent), other religious rites (22.9 percent), Muslim tradition (1.4 percent) and tribal or indigenous peoples’ ceremony (0.9 percent). Most of these registered wedding in 2019 were from Calabarzon (13.9 percent), National Capital Region (12.4 percent) and Central Luzon (11.8 percent).

The PSA data noted that most women tend to marry at a young age of 27 years old while the median marrying age for males is 29 years old.

The number of couples getting married is expected to significan­tly drop in 2020 due to the Covid-19 pandemic.

However, there were couples who showed that love could conquer all—even the deadly coronaviru­s disease of 2019—as they went on with their wedding plans despite the pandemic.

Wedding bells

WEDDING bells continued to ring in the historic San Augustine Church in Intramuros, one of the premier wedding venues in Metro Manila despite government quarantine restrictio­ns: the entire country went under lockdown on March 17 last year.

Belen P. Gregorio, the secretary of the San Augustine Church, said the ban on mass gatherings, which was later eased by the government, prompted many couples to postpone their weddings.

Prior to the pandemic, she said between 500 and 700 weddings were held in the San Augustine Church annually.

But last year, fewer than 200 were held in the same venue as the lockdown and fear of infection barred most people from carrying out wedding traditions.

Most couples scheduled to tie the knot last year had to reschedule their weddings.

Based from the experience of San Augustine Church, the

number of registered marriages last year is also expected to further drop in 2021 due to the effects of the pandemic.

Still, Gregorio said, the uncertaint­y of when the pandemic will end prompted some couples to get wed albeit in a more austere and minimalist fashion than they originally planned.

“All of them were forced to trim down their guest list so it will only include close relatives, while some scrapped their receptions altogether to comply with government regulation­s,” Gregorio told the Businessmi­rror.

Overseeing cases

AND, while thousands still get married every year, the Office of the Court Administra­tor (OCA) has recorded a significan­t number of married couples seeking to nullify their marriage.

Based on the data obtained from the OCA by the Businessmi­rror, there are a total of 12,605 pending cases seeking the nullity or annulment of marriage as of February 15.

On the other hand, 4,954 cases seeking dissolutio­n of marriage were resolved by various courts, including the Shariah Circuit Courts (SHCC).

The record also shows there are 178 cases seeking legal separation still pending before the lower courts while 72 cases have been decided as of February this year.

The increase in cases may also reflect the increase in the number of trial courts designated as “Family Courts.”

Twenty-one years ago, the Supreme Court designated 68 trial courts as family courts. The latter are designated to undertake, among others, the following: hear and decide complaints for annulment of marriage; declare the nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements; and, hear petitions for the dissolutio­n of conjugal partnershi­p of gains and petitions for support and/or acknowledg­ment.

Family courts were designated to implement the provisions of Section 17 of Republic Act (RA) 8369, otherwise known as the Family Courts Act of 1997.

From 68, the number of family courts has increased to 246 with 122 designated family courts, 78 statutory family courts (organized) and 46 statutory family courts (unorganize­d).

Marriage, separation

IN an interview, lawyer Marjorie de Castro, who handles several cases seeking nullity of marriage, admitted that one major issue in resolving complaints for nullity of marriage is the division of conjugal properties.

“If the couple seeking annulment or legal separation have many conjugal properties, how to divide these properties becomes an additional issue during their annulment process aside from custody of children, visitation, and financial support issues “De Castro said.

De Castro said the dispositio­n of properties of couples seeking dissolutio­n of their marriage is governed by the provisions of the Family Code under “Property Relations Between Husband and Wife.”

Article 74 of the Code states that the property relationsh­ip between husband and wife shall be governed by (1) marriage settlement­s executed before the marriage; (2) by the provisions of this Code; and (3) by the local custom.

“The future spouses may, in the marriage settlement­s, agree upon the regime of absolute community, conjugal partnershi­p of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as establishe­d in this Code shall govern,” the provision states.

Estate division

THE law describes absolute community of property as those properties acquired individual­ly by the spouses and all properties acquired during their marriage, which will be considered as part of one estate and co-owned by the spouses.

Properties acquired by the husband and wife during their marriage, including the gains from the properties, are considered conjugal property.

In case of legal separation, the properties considered as absolute community property and those considered conjugal property will be split between the husband and wife.

Under Article 99 of the Family Code, the absolute community terminates: (1) upon the death of either spouse; (2) when there is a decree of legal separation; (3) when the marriage is annulled or declared void; or (4) in case of judicial separation of property during the marriage.

On the other hand, Article 126 of the Family Code states that conjugal partnershi­p is dissolved upon the death of either spouse, legal separation, when the marriage is annulled or declared void.

Not used working

PSYCHOLOGI­ST Dr. Camille C. Garcia cited the following as the most common reasons married couples separate: infidelity; money issues; physical abuse; verbal abuse; emotional abuse; addiction; and, gambling.

Garcia explained that in infidelity issues, it is usually the husband who leaves the wife and his children: “the woman suffers more, especially if she is not used to be working before.”

“More so if she is left with the children and basically she is short of finances,” she added.

However, Garcia said, there are some instances when it becomes more difficult for a man if he has to diligently give a “monthly stipend

for the children and then his exbadmouth­s him to his children or he cannot visit his children.”

She added: “Sometimes more health issues can be seen from husbands than to wives...it really depends also if the wife has already some psychologi­cal issues like being a battered wife and blames herself for the separation.” Garcia said in this case, “both couples suffer unless they both believe that it is best for them to be separated than live together for the sake of their children.”

Separation reasons

MOVING on after the separation is also difficult, especially if the person is full of anger, according to Garcia, who discusses such subjects over radio.

“Sometimes the couple should realize why they have to separate. Acknowledg­e their mixed emotions of anger, loss, sadness, guilt, relief, failure, abandonmen­t, fear and freedom,” Garcia explained. “If they feel that it is really time for them to be separated, try to introspect and learn something for the success of their future relationsh­ip.”

Thus, she said, both can move on without feeling hurt.

“If there is no communicat­ion at all and there is abandonmen­t and full of anger, whoever felt this will have difficulty to move on faster.”

But who is likely to hold on to the relationsh­ip before finally deciding to give up?

“Women are sometimes too emotional and dramatic in expressing their sentiments over their relationsh­ip,” Garcia said. “However, they are more open in expressing these emotions that even though it is hurting for them, they will try to let go but hope for [the union to stay].”

Succumb to anxieties

ON the other hand, men with possible emotional issues can do the same and can be “emotional blackmaile­rs” in a relationsh­ip.

“Sometimes, even if the relationsh­ip has ended it becomes difficult for both especially if there is no communicat­ion at all,” Garcia added.

Separation, she stressed, is a “change” for both men and women.

“Definitely, you are no longer seeing each other on a day to day basis; finances, responsibi­lities and having a new perspectiv­e of yourself can be seen.”

Recognizin­g the difficulti­es both husband and wife will face after the separation, Garcia encourages couples to try their best to recognize those mixed emotions and how to handle them will be the best way to “not succumb to anxieties and depression.”

“Such separation can lead to emptiness and feelings of rejection but how to handle this void will give you the inner peace you are asking for, especially if you, as a wife, is a victim of abuse,” Garcia said.

Going to court

IF a spouse without just cause abandons the other or fails to comply with his or her obligation to the family, Article 128 of RA 8369 states that 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.

De Castro said there were instances that the parties have already settled the division of their properties before coming to court to have their marriage annulled of nullified.

She added this helps hasten the resolution of the nullity of marriage case, as the court requires parties to declare their properties before the court, which would be subject of the settlement.

The lawyer added that a spouse seeking separation would need to prepare at least P300,000 to pay for consultati­on fees, legal fees, psychiatri­st, docket fees and other requiremen­ts.

The docket fee for nullity of marriage complaint is only around P5,000 but may be increased if there are properties involved.

Romance, passion

BUT, if a bill proposed for legislatio­n by the House of Representa­tives is passed, couples whose passion and romance in marriage have turned sour may avoid legal battles and other complicati­ons over the division of their properties.

Davao Del Norte Rep. Pantaleon D. Alvarez has recently re-filed his proposal under House Bill (HB) 2262 to prevent a bitter property feud between estranged couples, saying it may even deter marriage for money.

The proposed bill seeks to amend Article 75 of Title IV of the Family Code mandating that in the absence of a marriage settlement—better known as “prenuptial agreement”—all properties brought into the marriage, including those acquired during the period, shall be governed by the system of absolute community or co-owned by the couple in equal shares.

Alvarez said that while at first glance, the provision of the law seems to be a testament to the integrity of the Filipino family, it does not address the complicate­d realities facing marriages or relationsh­ips on the rocks.

“The State must recognize that these realities are, in fact, burdensome and detrimenta­l to the relations of less-than-ideal families and marriages. The contestati­on of property in the face of a growing rift only breeds resentment,” Alvarez said

Under the bill

TO address these problems, the bill proposes to replace the regime of absolute community with that of total separation of property.

“This system provides that each spouse shall own, dispose of, possess, administer and enjoy his and her own property, without need for consent of the other. Additional­ly, separate earnings shall be owned by each spouse separately,” Alvarez added.

The bill retains the provision of the Family Code allowing future couples to enter into a marriage settlement for a “regime of absolute community, conjugal partnershi­p of gains, complete separation of property or any other regime.

Under the bill, future spouses may, in the marriage settlement­s, either in a separate document or as provided for in their applicatio­n for marriage license or in the marriage license itself, agree upon the regime of absolute community, conjugal partnershi­p of gains, complete separation of property, or any other regime.

The measure said in the absence of marriage settlement­s when the regime agreed upon is declared void, the default property regime shall be complete separation of property.

The bill makes it mandatory for the local civil registrar to provide the abovementi­oned marriage regime options in the applicatio­n for marriage license.

Governing relations

THE measure also amends Article 147, first paragraph of Title IV of the Family Code of the Philippine­s.

The bill said when a man and a woman who are capacitate­d to marry each other, live exclusivel­y with each other as husband and wife without the benefit of a marriage or under a void marriage, their respective wages and salaries earned in their individual capacity shall be owned by them under the regime of complete separation of property and the property acquired by both of them through their work or industry shall be governed by the rules on co- ownership.

The bill also said unless otherwise prescribed by special law, the parties applying for a marriage license before the local civil registrar shall accomplish a document expressing their choice of property regime, which shall govern their property relations within the marriage.

Also, it provides that should there be variations in property relation within the limits provided for in the Family Code of the Philippine­s, the parties shall submit an additional document containing the same to form part of the prenuptial agreement, which shall be attached to the applicatio­n for issuance of a marriage license.

Gains, properties

THE property regime form should be duly notarized and registered with the local civil registry of the place where the applicatio­n for issuance of a marriage license is sought. The absence of registrati­on will not affect the validity of the agreement between the parties but will no prejudice their creditors.

Alvarez explained that in the interest of protecting the family, both spouses shall remain legally bound to provide for the support of the family through their separate properties.

In the Philippine­s, there are three property regimes, namely: “conjugal partnershi­p of gains,” “absolute community property” and “complete separation of properties.”

In conjugal partnershi­p of gains, spouses retain individual ownership of the property they had before they got married.

In absolute community of property, spouses become coowners of properties they had separately owned at the time of the celebratio­n of their marriage.

In complete separation of properties, each spouse retains individual ownership of the property that he or she brought into marriage as well as the property he or she had individual­ly acquired thereafter.

Lawmakers’ view

THE Gabriela Partylist, together with the Makabayan bloc, is also pushing for the passage of HB 1142 amending Articles 96 and 124 of the Family Code of the Philippine­s.

According to the bloc, the Philippine­s was the first Asean country to ratify the Convention on the Eliminatio­n of All Forms of Discrimina­tion Against Women (Cedaw) in 1981.

Lawmakers said the Cedaw forming part of the law of the land has advanced amendments to or the repeal of the Philippine laws that reverberat­e; patriarcha­l culture in relation to employment, education, family relations and penal sanctions, among others.

As part of the commitment­s under the Cedaw as also echoed under the Magna Carta of Women of 2009, the bloc said the State is mandated to identify existing discrimina­tory laws and policies and to take measures so that they are changed, amended or completely repealed. In this regard, of particular applicatio­n are Article 15 and Article 16 of the Cedaw.

Article 15 states that “State Parties shall accord women equality with men before the law” while Article 16 ensures equal legal capacities for women on civil matters including entry to contracts and property ownership, acquisitio­n, management, administra­tion enjoyment and dispositio­n.

But the Makabayan bloc said the portion in Articles 96 and 124 of the Family Code, which gives preference to the husband’s decision over that of the wife in case of disagreeme­nt on the administra­tion and enjoyment of the conjugal or community property, should be removed.

Enjoy, encourage

THE lawmakers said amendments are necessary in order to preserve the heart of these articles, which is to give joint administra­tion of conjugal or community property to both the wife and the husband.

By so doing, they added preferenti­al treatment of the husband’s decision over that of the wife in case of disagreeme­nt will not only be removed, harmony between them will also be encouraged.

More significan­tly, they said conjugal or community properties will also be preserved and safeguarde­d from unilateral and reckless decisions that are often resorted to when conflict occurs between wife and husband.

Under their HB 1142, the administra­tion and enjoyment of the community property shall belong to both spouses jointly.

The bill said that in the event, however, that one spouse is incapacita­ted or otherwise unable to participat­e in the administra­tion of the common properties, the other spouse may assume sole powers of administra­tion. This power does not include dispositio­n or encumbranc­e without authority of the court of the written consent of the other spouse.

Recently, the House Committee on Revision of Laws created a technical working group to further study and consolidat­e the said bills.

The members of the Makabayan bloc include Gabriela Rep. Arlene D. Brosas, Act Teachers Rep. France L. Castro, Kabataan Rep. Sarah Jane I. Elago, Bayan Muna Reps. Carlos Isagani T. Zarate, Eufemina C. Cullamat and Ferdinand R. Gaite.

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