Thursday, April 18, 2013

Husband can provide support if he has financial capacity


Dear PAO,
My husband and I are legally married. When our daughter was about 1 year and 5 months old, my husband started to have a “textmate.” He used to come home late and there were days that he never came home at all. He neglected us and we would fight about this. Now, my husband filed a petition for the annulment of our marriage because his girlfriend wants to take him with her in the USA. Can I ask support from my husband because I am jobless? He too has no work but his girlfriend works in the USA as a nurse. Can I demand support from his girlfriend? I hope you can advise me on this matter.
HM

Dear HM,
It is not right for your husband to maintain a relationship with another woman while the two of you are still married because it is his obligation, as much as yours, to remain faithful all through out your marriage. This is enshrined under Article 68 of the Family Code of the Philippines, which states that: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.”

Nevertheless, your husband may opt to file a petition for annulment of marriage before the court if he has a legal ground, which may be any of the following: (1) he was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of his parents, guardian or person having substitute parental authority over the party, in that order; (2) he was of unsound mind at the time of the celebration of the marriage; (3) his consent was obtained by fraud; (4) either of you is physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (5) either of you is afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, id).

Nonetheless, you and your daughter may demand support from him. As provided for under the law, spouses are obliged to support each other. In the same token, parents and their legitimate children are obliged to provide mutual support (Article195, id). However, you have to take into consideration the fact that your husband does not have a job, as you mentioned in your letter. Such fact may excuse him, for the time being, from giving you and your daughter financial support. Nevertheless, he may be required to provide support once he has the financial capacity to do so (Article 201 in relation to Article 202, id).

Insofar as your desire to demand support from the girlfriend of your husband, we humbly submit that the same is not legally possible. The said person has no legal obligation to provide support. When Article 195 of the Family Code speaks of obligation to provide support, it is only confined to the following persons: (1) the spouses; (2) legitimate ascendants and descendants; (3) parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) legitimate brothers and sisters, whether of full or half-blood.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

source:  Manila Times Column of  

Wednesday, April 17, 2013

Written contract of employment not mandatory

Dear PAO,
Is it necessary to have a written contract of employment to be considered employed?
Ruth

Dear Ruth,
A written contract of employment is a written agreement entered into between the employer and the employee wherein the former hires the latter for the performance of a service or a job for a stipulated wage or salary. A contract of employment also sets forth the different terms and conditions that shall be observed during the period of employment. However, a written contract of employment is not a mandatory requirement for one to be considered employed. At the most, it shall only be treated as one of the best evidence to prove one’s employment considering that it is in writing and signed by both the employer and the employee.

In a long line of cases, the Supreme Court of the Philippines has set forth the elements that are generally considered in determining the existence of employer-employee relationship. These are the following: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished (Brotherhood Labor Unity Movement of the Philippines vs. Zamora, GR No. L-48645, January 07, 1987; People’s Broadcasting Service vs. Secretary of Labor, GR No. 179652, March 06, 2012; Tiu vs. NLRC, GR No. 95845, February 21, 1996). Among the four tests, the control test is considered as the most important element. However, not all kinds of control exerted over another have the effect of establishing employer-employee relationship. A distinction should be made between the form of control or rules that merely serve as guidelines towards the achievement of the mutually desired result without indicating the means or methods to be employed in attaining it and those that control or fix the methodology and bind or restrict the party hired to the use of such means in attaining the desired result. The first form does not create employer-employee relationship since it only aims to promote the result. On the other hand, the second form creates employer-employee relationship because it addresses both the result and the means to achieve it (Insular Life Assurance Co., Ltd. vs. NLRC, GR No. 84484, November 15, 1989.)

Based on the foregoing, a written contract of employment is not necessary for one to be considered employed. A person shall be considered as an employee of another if the aforementioned elements are present even if there is no written contract of employment.

source:  Manila Times' Column by

Monday, April 15, 2013

Law mandates separated spouse to be faithful to partner

Dear PAO,
I have a boyfriend and we have been together for 6 years now. We have a 5-year-old daughter. We want to get married but we are not able to because my husband is already married. He has no communication with his wife, but
we know she also has a family of her own now. I really want us to get married. What is the best way for my boyfriend to have his marriage legally dissolved? Thank you and more power.
Maria

Dear Maria,
First and foremost, we would like to emphasize that you should not maintain a relationship with a married man. Your boyfriend is obliged under our laws to remain faithful to his wife. Furthermore, you may be held criminally liable if it is proven that you and your boyfriend are cohabiting with each other either in their conjugal dwelling or in some other place, or that the two of you are having sexual intercourse under scandalous circumstances (Article 334, Revised Penal Code).

If your boyfriend truly desires to marry you, he should first lawfully end his marriage with his wife. He may file a petition for declaration of absolute nullity of marriage or he may file a petition for annulment of marriage, as the case may be, before the Regional Trial Court of the place where he resides.

However, it is necessary that there be a legal basis for him to file such petition. Under the Family Code of the Philippines, the following are the grounds for the declaration of absolute nullity of marriage: (1) either party is below eighteen years of age even with the consent of parents or guardians; (2) marriage was solemnized by any person not legally authorized to perform marriages, unless it was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) marriage was solemnized without license, except those allowed under the law; (4) bigamous or polygamous marriages not failing under Article 41; (5) marriage was contracted through mistake of one contracting party as to the identity of the other; (6) subsequent marriages that are void under Article 53; (7) either party was psychologically incapacitated to comply with the essential marital obligations of marriage at the time of the celebration of the marriage; (8) incestuous marriages; (9) marriages which are void from the beginning for reasons of public policy (Articles 35, 36, 37 and 38, Family Code of the Philippines).

Should your boyfriend wish to have his marriage annulled, he must prove the existence of any of the following grounds: (1) he was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of his parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, he freely cohabited with his wife; (2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other; (4) the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other; (5) either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, id).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

source:  Manila Times' Column by

Sunday, April 14, 2013

Action for support against father whose whereabouts are unknown

Dear PAO,
I got married in April 2006. Four months thereafter, my husband abandoned me and our daughter. He never provided support. I saw on Facebook just recently that he already has a new family. I want to file an action for support but I do not know where he lives. I also want to know whether he and his girlfriend got married. Please advise me on what I should do.
Jo

Dear Jo,
You and your daughter have a right to demand support from your husband because it is a part of his obligation as your spouse and as the father of your child. Such obligation is clearly stated under Article 195 of the Family Code of the Philippines, which provides that, “x x x the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; x x x (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; x x x”

Accordingly, you may file an action for support against him before the Regional Trial Court, acting as a Family Court, of the place where you and your daughter reside. You must particularly indicate in your claim your financial necessities as well as those of your daughter, whether it be for your sustenance, dwelling, clothing, medical attendance, education and transportation. You must likewise be able to prove that your husband has the financial capacity to provide for such necessities because according to Article 201, id: “The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.”

It is worth mentioning that, while a case may be filed even if the complainant has no knowledge of the exact whereabouts of the respondent, it is still vital for the former to know such detail in order for the case to prosper swiftly. This is so because the respondent will be served with the pleadings and notices relative to the case he is facing in order to give him the opportunity to answer and raise his defenses. If his whereabouts is unknown, it may cause the delay of the proceedings. Thus, it is advisable for you to determine first where your husband is presently residing.

Insofar as your desire to know whether or not your husband and his alleged girlfriend got married, you may consider verifying with the National Statistics Office (NSO) as marriages entered into here in the Philippines are commonly registered with the NSO. However, be advised that the lack of record in the NSO is not a guarantee that they have not contracted marriage because it is possible that they entered into a contract of marriage but such fact was not registered with the office of the Local Civil Registrar or the NSO.

source:  Manila Times' Column by

Wednesday, April 10, 2013

As negotiable instrument, laws set limitations on checks

Dear PAO,
My daughter authorized me to claim her last salary from the company she used to work with. The company issued a check under my daughter’s name. When I tried to encash it, the bank refused even if I have already presented to them the authorization from my daughter as well as a valid ID. I requested from the company to issue a check in my favor, but until now they have not acted upon my request. What is my recourse? My daughter is currently in UAE.
EA23

Dear EA23,
Private companies more often than not require the personal appearance of the employee who desires to claim his or her last salary. In some instances, companies allow an authorized representative of the employee concerned to collect such salary, subject to certain restrictions which is for the protection of both the employee concerned as well as the company.

In the situation that you have presented before us, it is only expected that the check was issued under your daughter’s name considering that she is the former employee of the company and that the same was issued to answer for her last salary. You cannot impose on the company to issue you another check under your name because you are not the employee who is entitled thereto. Moreover, your authority is limited because you were merely authorized to claim your daughter’s last salary. Thus, you may not exceed such limitation and the company has the right to validly refuse your request.

It is likewise understandable that the bank with which you presented the said check refused to allow you to encash the same because it was issued particularly under your daughter’s name. Only your daughter is entitled to encash the said check. While a check is considered as a negotiable instrument and works as a substitute for money, there are limitations set under our laws. While a negotiable instrument, such as a check, may be negotiated in favor of another person, such may only be done by delivery, if the same is made payable to bearer, or by indorsement and delivery, if it is payable to the order of a specified person (Section 30, Negotiable Instruments Law). Considering that the check was issued by the company under the name of your daughter, the same may only be validly negotiated if your daughter indorses the same in your favor.

Since your daughter is presently in the United Arab Emirates (UAE), you may opt to send her the check so that she can indorse the same to you. Be advised that the indorsement must be written in the check itself or upon a paper attached thereto. But her signature, without additional words, may be considered as a sufficient indorsement (Section 31, id). On the other hand, you may consider depositing the check in the bank account under your daughter’s name. This way, your daughter may be able to receive the cash value thereof after the same has been cleared by the issuing bank as well as her bank of account. Furthermore, depositing the check in your daughter’s account will lessen the risk of having a stale check.

source:  Manila Times' Column by