The cost of forbidden love

Lio and Dits once had a blissful married life and out of which love a son was born. In time, however, Lio discovered that Dits had long since succumbed to the temptation of the flesh. Incensed by such betrayal, Lio filed a criminal case against Dits and her paramour.

Consequently, both Dits and her Valentino were convicted of the crime charged and were sentenced to suffer an imprisonment ranging from one year, eight months, minimum of prision correccional as minimum penalty, to three years, six months and 21 days, medium of prision correccional as maximumpenalty.

Dits thereafter filed a Petition for Declaration of Nullity of Marriage, Dissolution and Liquidation of Conjugal Partnership of Gains and Damages imputing psychological incapacity on the part of Lio.

During the pre-trial of the said civil case, Dits and Lio entered into a compromise agreement, where they liquidated and dissolved their conjugal partnership of gains.

They agreed, among others, that: (a) the moneys in the bank will be divided between the two of them, with a portion thereof to be given to their only son; (b) the store and the bodega will go to Dits and Lio, respectively; (c) Dits will pay Lio a sum of money as his share in the jeepney and stocks of the store in full settle- ment thereof; (e) Dits shall be allowed to occupy the bodega until the time the owner of the lot on which it stands shall construct a building thereon; (f) the vehicles shall be divided between them; (g); and (h) the house and lot shall be given to their child. The Court approved the agreement and consequently issued a Partial Judgment Based on Compromise Agreement.

In a complete turn-around, Lio sought to repudiate the Compromise Agreement and asked the reconsideration of the Judgment on Compromise Agreement on the grounds that his previous lawyer did not intelligently and judiciously apprise him of the consequential effects of the Compromise Agreement.

Q: May the conjugal partnership of gains of the spouses be dissolved and liquidated during the marriage and adopt a regime of complete separation of properties regime?

A: Yes. The parties may seek the dissolution and liquidation of their conjugal partnership of gains and adopt a regime of complete separation of property regime either through an involuntary petition grounded on sufficient causes or a joint petition. In this case, Lio and Dits opted to dissolve and liquidate their conjugal partnership of gains regime through a voluntary separation of property.

It bears to stress, however, that such dissolution shall be subject to the rights of all creditors of the conjugal partnership of gains and other persons with pecuniary interest.

Q: What is the regime of complete separation of property regime?

A: Under the regime of separation of property, each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other.

To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. Be that as it may, both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. The liabilities of the spouses to creditors for family expenses shall, however, be solidary.

Q: Was the Compromise Agreement that was executed by Lio and Dits void on the ground that the law that prohibits the guilty spouse, who was convicted of either adultery or concubinage from sharing in the conjugal property?

A: No, it is not void. There is nothing in the law that disallows a spouse who was sentenced with adultery from sharing in the conjugal properties.

Q: Can Dits, who was found guilty of adultery, be prohibited from managing her property or dispose of such property inter vivos?

A: No. The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of the Revised Penal Code provides for the consequences of civil interdiction: Art. 34. Civil Interdiction. - Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its medi- um and maximum periods. Article 333 should be read with Article 43 of the same Code.

The latter provides: Art. 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

It is clear therefore that the crime of adultery does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of such property inter vivos.

Q: Is it necessary for the provincial prosecutor or the solicitor general to participate in the proceedings pertaining to the settlement of their property relationship?

A: No. The settlement had no relation to the questions surrounding the validity of their marriage. Nor did the settlement amount to a collusion between the parties.

Q: Whether the Compromise Agreement can be voided on the ground that Lio was was not intelligently and judi- ciously informed by his counsel of the consequential effects of the voluntary settlement?

A: It is well-settled that the negligence of counsel binds the client. This is based on the rule that any act performed by a lawyer within the scope of his general or implied authority is regarded as an act of his client.

Consequently, the mistake or negligence of petitioners’ counsel may result in the rendition of an unfavorable judgment against them.

Exceptions to the foregoing have been recognized by the court in cases where reckless or gross negligence of counsel deprives the client of due process of law, or when its application “results in the outright deprivation of one’s property through a technicality. None of these exceptions has been sufficiently shown in Lio’s case.

( Source: Maquilan vs. Maquilan, G.R. NO. 155409, June 8, 2007; Articles 144, 145 and 146 of the Family Code)

Ma. Soledad Deriquito-Mawis is Dean, Lyceum of the Philippines University; Chairperson of the Philippine Association of Law Schools; and founder of Mawis Law Office