Frequently Asked Questions            

For a discussion of relevant issues, please surf to the weblogs Legal Updates, Families of Faith, and Salt and Light. You can also download a free PDF newsletter on legal issues.

Note: This web page is AnswerTips-enabled. Double click any word or technical term and instant pop-up definitions will appear.

What is the difference between adoption and simulation of birth?

Adoption is the legal process by which a child becomes the legitimate child of the adopting person/s. The law which governs domestic adoption is Republic Act 8552 or the Domestic Adoption Act of 1998.

Simulation of birth on the other hand occurs when a childless couple, for example, comes into possession of a baby or child, given to them by a midwife, an unwed mother or a relative, and this couple then applies for a birth certificate, making it appear that the baby or child is their biological offspring. Under RA 8552, simulation of birth is a criminal offense punishable by eight years imprisonment and a fine of fifty thousand pesos.

Please surf to my Salt and Light blog for the procedures in petitions for adoption.

My husband found out that our marriage certificate is not on file with the National Statistics Office. He said that our marriage is therefore not valid, and that he can get married to another woman. Is my husband correct?

Your husband is wrong. The lack or absence of a marriage certificate (or contract) in the files of the NSO does not make your marriage invalid. The marriage certificate (or contract) is not an essential or formal requisite for the validity of a marriage under the Family Code.

The marriage certificate is a powerful documentary evidence of the existence of your marriage. Even then, however, the existence or validity of your marriage can be proven by other evidence - the marriage license, the testimony of the officiating minister and the witnesses, wedding pictures, etc.

Should your husband therefore insist on getting married again, you can charge him with bigamy under the Revised Penal Code.

What are the rights of illegitimate children?

Under Republic Act 9255, Article 176 of the Family Code has been amended, allowing illegitimate children to use the surname of their father "if their filiation has been expressly recognized by the father 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 father, however, has the right to institute an action before the regular courts to prove non-filiation during his lifetime."

Also, whatever a legitimate child gets in terms of inheritance, the illegitimate child is entitled to one-half. For example, if the legitimate child gets one hundred thousand pesos as his share in the inheritance, the illegitimate child gets fifty thousand pesos.

My boyfriend and I are both above 21 years of age, and we want to get married, with our parents' consent. But the Local Civil Registrar won't issue a marriage license because my boyfriend can't produce his birth certificate. What can we do?

Please point out to the LCR the last portion of Article 12 of the Family Code which states,

"The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. "

Is there any difference between annulment and declaration of nullity of marriage?

Under Articles 35 up to 54 of the Family Code, some marriages are considered either void or voidable. Technically speaking, annulment refers to the legal action declaring void those marriages considered as voidable (that is valid until annulled). On the other hand, declaration of nullity refers to those marriages considered as void from the very beginning.

In laymen's language, however, annulment is often used as a generic term for the legal action concerning both kinds of marriages.

What is the difference between divorce and declaration of nullity?

In divorce (which is non-existent in the Philippines), the grounds or reasons for such arise during the marriage. In declaration of nullity of a marriage (as provided for by the Family Code), the grounds or reasons are already existing even before the marriage, but such grounds may have manifested themselves only during the marriage.

In practical effect, however, both divorce and declaration of nullity of a marriage allow the former spouses to get married again to other persons.

What is psychological incapacity?

Article 36 of the Family Code provides, "A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."

The Supreme Court in the case of Santos vs. Court of Appeals.stated, "psychological incapacity under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."

The Supreme Court expounded, in greater detail, in Republic v. Court of Appeals what psychological incapacity is:

(1) The burden of proof to show the nullity of marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.  This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family.  Thus, our Constitution devotes an entire Article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be a) medically or clinically identified, b) alleged in the complaint, c) sufficiently proven by experts and d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological – not physical, although its manifestations and/or symptoms may be physical.  The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof.  Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at the “time of the celebration” of the marriage. The evidence must show that the illness was existing when the parties exchanged their “I do’s.” The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.  Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

Sexual infidelity, per se, however, does not constitute psychological incapacity within the contemplation of the Family Code. It must be shown that respondent Manuel’s unfaithfulness is a manifestation of a disordered personality which makes him completely unable to discharge the essential obligations of the marital state and not merely due to his ardent wish to have a child of his own flesh and blood.

An unsatisfactory marriage, however, is not a null and void marriage.

Mere showing of “irreconcilable differences” and “conflicting personalities” in no wise constitutes psychological incapacity. As we stated in Marcos v. Marcos: Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifests themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.

In Barcelona vs. Court of Appeals, a 2003 case, the Supreme Court stated,

"The obvious effect of the new Rules providing that “expert opinion need not be alleged” in the petition is that there is also no need to allege the root cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert opinion on the psychological incapacity, it follows that there is also no need to allege in the petition the root cause of the psychological incapacity.

"Science continues to explore, examine and explain how our brains work, respond to and control the human body. Scientists still do not understand everything there is to know about the root causes of psychological disorders.  The root causes of many psychological disorders are still unknown to science even as their outward, physical manifestations are evident.  Hence, what the new Rules require the petition to allege are the physical manifestations indicative of psychological incapacity." 

What are the effects when a marriage is declared null and void under Article 36 of the Family Code?

Articles 50 up to 54 of the Family Code provide for the effects when a marriage is annulled or declared null and void. Among others, the children are considered as legitimate, and their presumptive legitimes must be given to them before the judgment can become final.

What is the difference between legal separation and declaration of nullity?

The grounds or reasons are different, and more importantly, in legal separation, the spouses are not allowed to get married again to other parties. The wife also still has to use her husband's surname. (Practically no one therefore wants to file for legal separation; almost everyone in marital troubles will choose to have his or her marriage decalred null and void.)

Can I get married to my first cousin?

No, you cannot. You are related to your cousin by four civil degrees, and thus any such marriage is prohibited by reason of public policy (Article 38 of the Family Code).

From you to your father or mother, that is one degree. From your father or mother, to your grandparents, that is another civiil degree. From your grandparents to your uncle or aunt, that is another degree. And from your uncle or aunt to your first cousin, is another degree, making a total of four degrees.

How can I have my birth certificate corrected?

For change of first name, and for correction of minor clerical errors, you can simply file an administrative petition with the Local Civil Registrar of your place of birth or residence, under Republic Act 9048, also called the "Guinigundo Law."

For substantial errors, however, like errors in birthdates, gender, etc. you will still have to file the proper petition with the Regional Trial Court of the place which issued your birth certificate.

My father died leaving some properties to my mother and three children, including me. How can we divide up his properties? What are the respective shares?

You and your fellow heirs can simply ask a lawyer to draw up a deed of extra-judicial settlement of your father's estate. You can then have it notarized, and then have the notice published in a newspaper of general circulation once a week for three weeks. After you pay the corresponding taxes, you can then present the deed, the notarized affidavit of publication and the official receipts, to the Register of Deeds so that new titles can be issued to your names (assuming of course that your father left real properties).

Your mother gets one-half of the estate as her conjugal share. The remaining half will then be divided among your mother, you and your two other siblings. However, nothing prevents any heir from giving up his share of the inheritance or from choosing and getting a lesser amount. Thus, for example, instead of getting the farm in the province, one of the heirs may choose to get as his inheritance the brand new car.

My husband abandoned me and our kids. How can I compel him to support us?

You can file a petition with the Family Court of the place where you reside asking for a protection order under Section 8 of Republic Act 9262.

In the protection order, the court shall order an appropriate percentage of the income or salary of the respondent (your husband) to be withheld regularly by your husaband's employer for the same to be automatically remitted directly to you. Failure to remit and/or withhold or any delay in the remittance of support to you and/or your child without justifiable cause shall render your husband or his employer liable for indirect contempt of court

Free PDF newsletter on legal issues available for download

Back to top