Laguna State Polytechnic University
Sta. Cruz, Laguna
Sta. Cruz, Laguna
First Semester, SY 2019-2020
A.2.
H
and W were married in 1990. H, being a member of the Armed Forces of the
Philippines (AFP), was deployed to a rebel-infested area in 1992. Since then, W
has not heard from her husband, H.
One
day, the AFP informed W that H had been declared missing since 1995. In
consequence, W diligently pursued all available means to ascertain her
husband’s whereabouts, but to no avail.
Firmly
believing that H had already died, W filed a claim before the AFP in 2008 for
the death benefits of the missing serviceman. However, the AFP, despite being
cognizant of H’s status, would not act on the claim, contending that H could
not be presumed dead unless a judicial declaration to this effect is issued by
the proper court.
In
what instance/s is a judicial declaration of presumptive death necessary? In
this case, is the contention of the AFP correct? Explain. (3%)
My Answer
As
provided for by the Family Code, judicial declaration of presumptive death is
necessary for the purpose of contracting another marriage.
In this case, the contention of the AFP is incorrect. An action instituted solely for the declaration of presumptive death presents
no actual controversy that the court can resolve. In such action,
there would be no actual rights to be enforced, no wrong to be remedied nor any
status to be established. Presumptive death is a disputable presumption
established by law. It is not subject to adjudication but can be invoked to
enforce rights adversely affected by the unconfirmed death of a person.
W
was not raising the issue of the presumptive death of her husband for the
purpose of remarriage but for the purpose of asserting her right over the
death benefits of her husband from the AFP. The AFP itself can ascertain the
claim of W based on the evidence or lack thereof to overturn the presumption
that H was already dead. Hence, there was no need for judicial declaration of
presumptive death.
(Tadeo-Matias vs
Republic G.R. No. 230751 25April2018)
A.3.
Mr.
Reyes is legally married to Mrs. Reyes. During the subsistence of their
marriage, Mr. Reyes cohabited with another woman, Ms. Cruz. Out of Mr. Reyes
and Ms. Cruz’s illicit relationship, a child named C was born. In C’s birth
certificate, “Cruz” appears as the child’s surname, although Mr. Reyes
expressly acknowledged C as his child.
In
2018, Mr. Reyes and Ms. Cruz ended their relationship. Mr. Reyes thereafter
lodged a petition in court for parental custody and change or correction of C’s
surname in the child's birth certificate from “Cruz” to “Reyes.” At that time,
C was only ten (10) years old.
(a)
Should Mr. Reyes be granted custody of C? Explain. (2.5%)
(b)
Can Mr. Reyes validly compel the change or correction of C’s surname from
“Cruz” to “Reyes”? Explain. (2.5°/o)
My Answer
(a)
No.
Mr. Reyes should not be granted custody.
The
Family Code of the Philippines granted parental authority over an illegitimate
child to the mother. Hence, as a general rule, the mother has custody over the
child unless the court finds a compelling reason to deny her custody. The
paramount consideration of the court in granting custody is the welfare of the
child.
Unless
Mr. Reyes can prove that the interest of his child C is best served if C is
under his custody, C will remain under the custody of Ms. Cruz, the mother.
(b)
No.
Mr. Reyes cannot validly compel the change or correction of C’s surname from
“Cruz” to “Reyes”.
According
to the Family Code, an illegitimate child shall use the surname of her mother.
But the child may use the surname of the father if the father expressly recognizes
his filiation with the child through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten
instrument is made by the father. The choice to use the surname of
the father is granted by the law to the illegitimate child and not to anyone
else.
The
surname “Cruz” appearing on C’s birth certificate is in harmony with the
statutory provision that an illegitimate child should use the surname of the
mother. Mr. Reyes’ acknowledgment of C as his child gives C the choice to use
the surname Reyes. However, it does not provide any legal basis for Mr. Reyes to
compel the change or correction of C’s surname from “Cruz” to “Reyes”.
(Article 176 of
the Family Code)
A.4.
F,
a Filipina, married J, a Japanese, in the Philippines. After three (3) years,
they had a falling out and thus, separated. Soon after, F initiated a divorce
petition in Japan which was not opposed by J because under Japanese law, a
grant of divorce will capacitate him to remarry. F's divorce petition was then
granted by the Japanese court with finality.
May
the legal effects of the divorce decree be recognized in the Philippines, and
consequently, capacitate F to remarry here? Explain. (3%)
My Answer
Yes.
The legal effects of the divorce decree may be recognized in the Philippines,
and consequently, capacitate F to remarry here.
The
Family Code confers jurisdiction to Philippine courts to recognize the divorce
decree between a Filipino and a foreign national. Recent jurisprudence allows
the recognition of a foreign divorce regardless of whether the Filipino or
foreign spouse initiated the divorce proceedings. This effectively abandons the
rule that for a divorce decree to be recognizable in Philippine jurisdiction, the foreign spouse must be the
one to initiate the divorce proceeding, which is deemed violative of the equal
protection clause. Because of this jurisprudence, the residual effects of the
divorce decree obtained by F can also be recognized in the Philippines.
F
has to file a petition before a Philippine court wherein she has to allege and
prove the existence and authenticity of the divorce decree she obtained and the
law under which it is granted by a Japanese court. She must also prove that the
divorce decree she obtained has capacitated J to remarry so she would be
likewise capacitated to remarry. If she obtains a favorable judgment, she can
cause the cancellation of entry of the marriage between her and J in the
appropriate Civil Registry. Subsequently, she would be capacitated to remarry
without the risk of prosecution for bigamy.
(Republic vs
Manalo, G.R. No. 221029, April 24, 2018)
A.6.
Name at least
two (2) exclusions from the following property regimes as enumerated under the
Family Code:
(a) Absolute
community of property (2%)
(b) Conjugal
partnership of gains (2%)
My Answer:
(a)
As
enumerated under the Family Code, the exclusions under property regime of
absolute community are:
(1) Property
acquired during the marriage by gratuitous title by either spouse, and the
fruits as well as the income thereof, if any, unless it is expressly provided
by the donor, testator or grantor that they shall form part of the community
property;
(2) Property
for personal and exclusive use of either spouse. However, jewelry shall form
part of the community property; and
(3) Property
acquired before the marriage by either spouse who has legitimate descendants
(b)
As
enumerated under the Family Code, the following are excluded from the property
of conjugal partnership of gains:
(1) That
which is brought to the marriage as his or her own;
(2) That
which each acquires during the marriage by gratuitous title;
(3) That
which is acquired by right of redemption, by barter or by exchange with
property belonging to only one of the spouses; and
(4) That
which is purchased with exclusive money of the wife or of the husband.
(Article 92 and 108 of the Family Code)
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