Legal fallacies on marriage
“A LITTLE knowledge is a dangerous thing” is a truism that has proven itself correct time and time again. A lot of damage can be caused by getting wrong advice from people who are not qualified to give it.
As far as legal advice is concerned this has been much complicated by people I refer to as “internet lawyers” who believe themselves to already be qualified because they consulted Atty. Google or Judge Facebook.
“Attorney, ok na raw na magpakasal ako uli kasi seven (7) years na mula noong naghiwalay kami ng husband ko at di ko na sya nakita.” I have heard this from people more than once and my answer has always been “Sige, ok lang naman kaya sa iyo na makulong ka dahil sa Bigamy?”
The problem is that someone probably made the conclusion that remarriage was already allowed after reading Article 390 of the Civil Code which reads, in part, that an absentee who has been absent for seven (7) years it being unknown whether or not he is alive, “he shall be presumed dead for all purposes, except for those of succession”.
However, the internet lawyer who gave this advice did not know that it is NOT AUTOMATIC because there is a need to file the proper petition in court to declare a person as presumptively dead.
In fact, even if you file such a petition, it is not as easy as it appears. There was one case where the Supreme Court still denied the petition even after the petitioner went as far as Italy to try and locate the absentee spouse.
“Pero attorney, may agreement na kami ng misis ko na hiwalay na kami at pwede na kami mag asawa ng iba” My answer…. “Kelan kayo pumasa ng Bar Exams?”
While such an agreement may stand as evidence of the defense of consent if either spouse will file a criminal case for Adultery or Concubinage, it is worthless as far as giving either spouse the right to remarry is concerned. Nullifying a marriage or erasing its legal effects simply cannot be the subject of any kind of agreement. There have been several cases where the Supreme Court disbarred or otherwise penalized lawyers who drafted such agreements.
The fact is that in any civil complaint for the declaration of nullity of marriage on the ground of psychological incapacity to comply with essential marital obligations, one of the first things the judge will do is to have the public prosecutor investigate if the spouses are colluding with each other to have their marriage nullified. If they are found to be colluding, the case will be summarily dismissed.
“Attorney, gusto na namin mag divorce”……… and I would say “Tumakbo kayong Congressman o Senador at gumawa kayo ng batas sa Divorce” because, while the latest I heard is that a bi-cameral committee is already being formed to consolidate the different legislative bills on divorce, we still do not have an existing law permitting divorce in our country save under the Code of Muslim Personal laws of the Philippines.
“Sabi ng kilala ko dun lang daw kami mag divorce sa Hongkong o sa U.S.” and my answer would be “Dun na rin kayo tumira”.
A divorce abroad will only have legal effect in the Philippines is if it is between two foreign citizens whose national laws allow divorce or a divorce between a Filipino and a foreign national done in the foreign national’s home state. The latter situation has been quite recently expanded by jurisprudence to allow recognition even if it is the Filipino spouse who initiated the divorce proceedings.
The foregoing are just examples of the many fallacies about the laws on marriage in the Philippines and, again, the problem is that there are many who keep on giving advice when they do not really know the law.
The solution is simple enough. If you have a legal problem, whether relating to marriage or otherwise, ASK A LAWYER. Do not ask a friend or an acquaintance who just think they know about it from reading something on the Internet or some other source.
You would never allow an engineer to perform surgery on you, so why would you accept legal advice from someone who is simply unqualified?